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Legal report: Experts aren't always right

|Written By Helen Burnett

The problems unearthed with one Ontario pediatric forensic pathologist’s work should be a wake-up call for lawyers and judges.

Ontario’s public inquiry into pediatric forensic pathology stems from a coroner’s office review into the work of one controversial pathologist, but its findings could have implications across the board for all scientific expert evidence, lawyers say.

The inquiry, headed by Ontario Court of Appeal Justice Stephen Goudge, plans to make recommendations to restore and enhance public confidence in pediatric forensic pathology in the province and its future use in both investigations and criminal proceedings. It comes on the heels of the results of a 17-month review by the Ontario Chief Coroner’s office of 45 criminally suspicious and homicide cases where Dr. Charles?Smith, a forensic pathologist who carried out autopsies and provided opinions on cases involving pediatric deaths in the province until 2002, consulted or performed the autopsy.

Before 2002, Smith was known as one of the leading experts in cases involving pediatric forensics, but he has not worked with the coroner’s office since then, leaving Toronto in 2005 to practise in Saskatchewan. He is now reportedly living in British Columbia and has also undertaken not to practise forensic pathology in Ontario before the inquiry is completed next April.

The coroner’s review, ordered in 2005, was the result of general concern expressed about some of the conclusions reached by Smith in a number of criminal cases in which he was the primary or consulting pathologist. There were also concerns about the safeguarding of tissue samples from autopsies, after an audit earlier that year at Toronto’s Hospital for Sick Children located a previously unaccounted for tissue sample in the desk drawer of Smith’s office.

The aim of the review was to determine whether the conclusions reached by Smith in his autopsy, consultation reports, or testimony could be supported by the information and materials available.

However, in April 2007, the results of the review identified specific concerns in 20 of the 45 reviewed cases involving the pathologist, ranging from relatively minor to potentially more serious issues. Among those 20 cases, 12 had resulted in criminal convictions and one finding of not criminally responsible. Following the results of the review, Ontario Attorney General Michael Bryant announced a full public inquiry into the matter.

Louis Sokolov, a lawyer with Sack Goldblatt Mitchell LLP in Toronto, will be representing the Association in Defence of the Wrongly Convicted (AIDWYC) at the inquiry. He says that, while there will always be expert scientific evidence in criminal trials and it will always be accorded considerable weight, the danger materializes when there is uncritical acceptance of what the expert has to say simply by virtue of the fact that they are an expert.

One thing AIDWYC hopes will come out of this inquiry is a heightened level of scrutiny by all of the players in the justice system to not take what somebody says as a given just because of the number of qualifications they have. “We would hope and expect that the conclusions and recommendations of Justice Goudge will have wider implication into the acceptance of expert scientific evidence in general,” he says.

Broadly, says William Trudell, president of the Canadian Council of Criminal Defence Lawyers, the inquiry is important and timely, as criminal justice becomes more complex and more experts find their way into the courtroom, not only from the medical field but right across the board. “I’m not looking for this inquiry just to be helpful in relation to Charles Smith, this inquiry is going to help all of us because there have been too many wrongful convictions,” he adds.

Historically, he says, one of the problems is that there has been too much deference shown to experts, especially pathologists and medical experts, too much acceptance of what they say at the front end of the system. As well, lawyers  have been shy to challenge them. “This expert comes with qualifications and so, in some cases, you accept what this expert has to say because they are experts, they have been recognized and we don’t think that they might have tunnel vision ,and we don’t think that they might be prejudiced, and we don’t think that they might need to sort of look at both sides more carefully,” he says. “I think that this inquiry will be really important to shine a light on the use of experts, especially in some respects the use of experts in sensitive areas where we’re afraid to ask the question, they must be right,” adds Trudell, a Toronto defence lawyer.

There is always a concern about expert evidence, especially relating to different scientific fields, says Justice John Vertes, president of the Canadian Superior Courts Judges Association, because of the value that judges and juries place on the testimony of expert witnesses. He adds that as there is often a certain aura of scientific certainty surrounding this type of evidence “the qualifications of the expert, the methodology that any expert uses, the reliability of the science itself . . . these are the sort of things that have to be looked at very closely, because when an expert witness gets up to testify and reads off his or her credentials, then obviously this carries great weight with a judge and, particularly, a jury.”

Anything that would help to either set some guidelines or clarify the role of expert witnesses in a courtroom would be welcome, says Vertes, who sits on the bench of the Northwest Territories Supreme Court. Although, he adds, he is not sure the Goudge inquiry will be doing that. Sokolov says AIDWYC wants to see appropriate checks and balances put in place at all stages of the process. “So that in those instances where you have what may amount to be unreliable evidence, you have systems in place within the coroner’s office, within the pathologists office, within the Crown attorney’s office, among the defence bar as well as the judiciary to catch this unreliable evidence before it can result in wrongful convictions,” he says.

Trudell notes that, historically, defence counsel has not cross-examined these experts properly, reluctant to forget that they are not just experts, but human. He says, however, that chances are the more experienced lawyers are, the less blinded they are to experts. “The criminal justice system is a human experience. If you get somebody who comes in to testify and everybody agrees that they’re superhuman, then we’ve got a problem,” says Trudell.

The inquiry, says Trudell, will be important in order to put a human face on those providing expert evidence. He says: “Just like we do everything else, we have to question them and keep them on their toes and make sure that they’re not prejudiced, make sure that they see the larger issue, and make sure that they’re open to new ways of thinking and changes and also . . . that they are not just the Crown’s expert.”

The cases reviewed by the chief coroner involving prosecutions have not been named and are not part of the public inquiry, but are being handled separately by the Ministry of the Attorney General. But the stories of several of those convicted in part due to Smith’s evidence came out in the days and weeks following the release of the report. Shortly before the inquiry was called, Bryant announced that Crown counsel would be consenting to a defence bail application to the court of appeal in the case of Marco Trotta, convicted of second-degree murder in 1998 in the death of his eight-month-old son. The case is heading to the Supreme Court of Canada later this year. Bryant also indicated consent to an application for an extension of time for Sherry Sherrett, convicted in the death of her infant son, to appeal her conviction. In March, the Ontario Court of Appeal ruled that Louise Reynolds of Kingston, Ont., could take a suit against Smith to court after she was wrongly charged in the death of her daughter in 1997 and spent two years in prison on the basis of Smith’s findings regarding the cause of death.

Most recently, in July, federal Minister of Justice Rob Nicholson referred the murder conviction of William Mullins-Johnson to the Ontario Court of Appeal, after saying he was satisfied there was a reasonable basis to conclude that a miscarriage of justice likely occurred in Mullins-Johnson’s 1994 first-degree murder conviction in the death of his four-year-old niece.

AIDWYC says during trial, Smith’s opinion that the child had been sexually assaulted at the time of death, which contradicted defence evidence that the child had died of natural causes, was essential to the jury’s verdict of first-degree murder. ?A misplacing of crucial evidence in the case prompted the audit of tissue samples from autopsies performed at the Hospital for Sick Children before the samples were found on Smith’s desk. In September 2005, Mullins-Johnson’s counsel applied to the minister of justice for a review of the murder conviction, after which he was granted bail pending the minister’s decision.

Cindy Wasser, a criminal lawyer with Toronto firm Wasser McArthur LLP, says, “I think what we’ll find in this case is that this was pretty specific to what happened in that office surrounding him, that there was no one really with a knowledge base that could watch and supervise and question.” Going forward, she says, people will have their eyes open and ask about the qualifications of the expert, making sure that the post-mortem report has been properly reviewed by a committee of peers. Defence counsel in cases where there is an odd cause of death should have their own expert review it. She adds, however, that she is not sure if people are going to become more aware from the inquiry if they aren’t already aware.

But Vertes says while expert evidence can be questioned in trial, it can often be difficult for the defence to find the resources to challenge this type of evidence because of the cost. “I think this is one of the real key areas where the defence is at a distinct disadvantage,” he says.

One change already underway is to create a list of forensic pathologists willing to do defence work, says Wasser, and there will be more over time. “People should be aware by now that you have to have your own expert review any kind of Crown expert material if there’s really an argument,” she says. The Ontario Coroner’s Office says it has learned lessons as a result of the review and has already made some changes, such as having two review committees focusing exclusively on complex pediatric deaths and forensic autopsies on criminally suspicious cases, homicides, and cases going to inquest now undergoing a standardized audit process.

A two-day course has also been developed for pathologists who provide expert testimony in court. The coroner’s office says these steps have been and will continue to be shared with other jurisdictions through educational courses and presentations. Wasser adds that pathologists will also hopefully be getting their own forensic pathology program in Canada. However, she says the profession has had its eyes opened, but it may not just be because of Smith, but also other experts in the past. “That then begs the question: if this has happened before, and it happened again, why does it keep happening . . . and at what point are we going to be safe to say it won’t happen again?”