Critically Examining the Forensic Sciences: Inquiries and Reports
| Author | Sarah Harland-Logan |
| Pages | 44-112 |
44
CHAPTER 5
Critically Examining the Forensic
Sciences: Inquiries and Reports
Sarah Harland-Logan
A. INTRODUCTION
The 2012 Hart House Report, addressing the state of the forensic sciences
in Canada, concluded by observing that “a just peace cannot rest on a
foundation of bad science.”1 The Lawyer’s Guide to the Forensic Sciences pre-
sents dozens of case examples in which expert forensic testimony, sup-
ported by a solid foundation of good science, has played a crucial role in
ensuring that justice is achieved.2 A fair and full treatment of this topic,
1 Michael S. Pollanen et al., eds., “Forensic Science in Canada: A Report of Multidisci-
plinary Discussion” (4–5 May 2012) at 104 [Hart House Report], online: www.forensics.
utoronto.ca/Assets/LMPF+Digital+Assets/Forensic+Science+in+Canada.pdf. In this
discussion, Pollanen et al. invoke s. 91 of the Constitution Act, 1867 (UK), 30 & 31 Vic.,
c. 3, s. 91, reprinted in R.S.C. 1985, Appendix II, No. 5, as follows: “we Canadians hold
that peace, order and good government are our most fundamental values. Establish-
ing and maintaining a just peace is thus the core mission of government, and a just
peace cannot rest on a foundation of bad science” [emphasis in original].
2 A number of the inquiries surveyed in this chapter attest to the power of forensic
science to facilitate the pursuit of justice and the correction of wrongful convictions:
see, for example, Ontario, Ministry of the Attorney General, “The Scope and Nature
of the Inquiry” in Report of the Kaufman Commission on Proceedings Involving Guy
Paul Morin (Toronto: Ministry of the Attorney General, 1998) [Morin Report ch. I]
at 1, 78, & 79, online: www.attorneygeneral.jus.gov.on.ca/english/about/pubs/morin/
morin_ch1.pdf; The Honourable Patrick LeSage, Q.C., Commissioner, Report of the
Commission of Inquiry into Certain Aspects of the Trial and Conviction of James Driskell
(Winnipeg: The Commission, 2007) [Driskell Inquiry Report] at 1, 155, and 158, online:
www.driskellinquiry.ca/pdf/final_report_jan2007.pdf. Both Morin and Driskell were
Critically Examining the Forensic Sciences: Inquiries and Reports 6 45
however, must survey not only these successes but also the tragic errors
to which flawed forensic science has contributed. These errors have re-
sulted in wrongful convictions, denying justice to the accused, the victim,
and the true perpetrator.
Both the legal and the scientific communities must learn from these
costly mistakes—and rectify the systemic failings that allowed them to
happen—to ensure that forensic scientific testimony facilitates, rather
than obstructs, the pursuit of justice. This chapter summarizes the find-
ings of a dozen significant judicial inquiries and systemic reviews con-
ducted within the past two decades that examine the practice of one or
more forensic sciences in the criminal justice context. While some of
these analyses were made in response to specific miscarriages of justice,
others seek a proactive response to recent changes in a rapidly evolving
scientific landscape.
Science, like the law, constantly evolves. Certain shortcomings within
each specialty become evident only in hindsight. By examining and crit-
ically analyzing forensic expert testimony and its underlying science, law-
yers can help prevent future miscarriages of justice. By presenting expert
testimony that carefully delineates both their findings and their limita-
tions, forensic scientists can assist the trier of fact in making appropriate
use of forensic evidence. Members of the scientific and legal communities
must work together to critically evaluate Canadian systems of forensic sci-
ence service delivery to ensure that the science meets standards of quality,
transparency, and accountability.
B. THE RATUSHNY SELF DEFENCE REVIEW
The Supreme Court of Canada’s decision in R. v. Lavallee3 heralded a new
understanding of battered women in the context of self-defence law. In
Lavallee, forensic psychiatric expert evidence on battered woman syn-
drome was admitted to dispel myths pertaining to intimate partner vio-
lence and “to assist the jury in determining whether the appellant had a
reasonable apprehension of death or grievous bodily harm and believed
on reasonable grounds that she had no alternative but to shoot.”4 Dr. Fred
Shane conducted a psychiatric assessment of the appellant—who had
exonerated by the results of DNA testing, a revolutionary technology that had not
been available at the time of trial.
4 Ibid. at para. 61.
46 6 Sarah Harland-Logan
killed her abusive partner—and concluded that she had been “terrorized”
by her partner “to the point of feeling trapped, vulnerable, worthless and
unable to escape the relationship despite the violence.”5 The appellant’s
life was in danger as a result of this “continuing pattern of abuse,” and
“the appellant’s shooting of the deceased was a final desperate act by a
woman who sincerely believed that she would be killed that night.”6 The
Supreme Court of Canada found that there was “ample” evidence (includ-
ing, but not limited to, this expert opinion evidence) to support its conclu-
sion that “[t]he fact that [the appellant] . . . may have exhibited aggressive
behaviour on occasion or tried (unsuccessfully) to leave does not detract
from a finding of systematic and relentless abuse” by her partner.7 The
Court restored the appellant’s acquittal.8
The Court’s acquittal in Lavallee brought with it a concern that self-de-
fence may have been overlooked by defence attorneys in at least some
murder cases where the defendant was a woman in an abusive relationship.
Further, the adequacy of Canada’s criminal and sentencing laws in these
circumstances was brought into question.9 In response, the Honourable
Lynn Ratushny10 was appointed to conduct a self-defence review, which
sought to determine whether there were Canadian women “convicted of
homicide who may have acted in self defence.”11 The review included:
[C]ases of women under sentence in federal and provincial institutions
who apply for a remedy and who are serving a sentence for homicide in
circumstances in which the killing allegedly took place to prevent the
deceased from inflicting serious bodily harm or death.12
Applications to participate in the self-defence review were sent to all
236 women serving a sentence for homicide in Canada. Ninety-eight women
responded.13 Justice Ratushny evaluated each woman’s conviction and sen-
tence in view of a series of standards focusing on the issue of self-defence
5 Ibid. at para. 9. These quotations are in the words of the court (rather than the expert).
6 Ibid. The quotations are in the words of the court.
7 Ibid. at para. 61.
8 Ibid. at para. 78.
9 Justice Lynn Ratushny, Self Defence Review: Final Report (Ottawa: Justice Canada, 1997)
at 11.
10 Ibid. Justice Ratushny was a judge of the Ontario Court of Justice (Provincial Division)
at the time.
11 Ibid. at 17.
12 Ibid. at 11.
13 Ibid. at 15.
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