Medical Professionals

• Author: Eric V. Gottardi/Jennifer A. MacLellan/Michael Lacy/Robin Flumerfelt
• Pages: 117-143

117

6

Medical

Professionals

I. Forensic Pathology ........................................ 118

A. Forensic Pathology in Context ......................... 118

B. The Autopsy ........................................ 120

C. Interviewing the Pathologist ........................... 121

D. Testimonial Issues .................................. 123

E. Common Issues in Forensic Pathology .................. 126

F. Summary .......................................... 128

II. Forensic Psychiatry ........................................ 128

A. Diversion .......................................... 129

B. Sentencing ......................................... 130

C. Dangerous Offender/Long-Term Offender Proceedings ..... 132

D. Diminished Responsibility ............................ 133

E. Other Uses for Forensic Psychiatry ..................... 139

III. Forensic Psychology ....................................... 139

IV. Sexual Assault Evidence Kits ................................ 140

A. Legal Issues with SAEKs .............................. 141

© [2022] Emond Montgomery Publications. All Rights Reserved.

118Part II Specific Types of Expert Evidence

I. Forensic Pathology

Pathology is the study of the causes and effects of disease and injury. As a field of study,

pathology dates back to ancient Egypt; however, apart from the Hellenists’ ghastly

use of criminals as live subjects for vivisection, the connection between pathology and

criminal justice is comparatively recent.1 The first “forensic autopsies” took place in

Europe during the Middle Ages and were conducted before a judge. Today, forensic

autopsies are performed by specially trained forensic pathologists—medical doctors

who employ modern equipment, techniques, and knowledge to ensure that the ac-

curacy of their findings remains commensurate with the gravity and consequences of

a criminal trial.

The word “forensic” means “pertaining to court.”2 Forensic pathology, then, is

the resolution of pathology-related issues in a legal context. While forensic patholo-

gists can be called upon for various purposes (e.g., identifying remains or analyzing

non-lethal injuries), the most frequent object of forensic pathology in the criminal

law context is to ascertain the cause of death by way of an autopsy.3 Often this work

arises in relation to a homicide investigation where the stakes are extremely high for

all involved. It must be kept in mind, however, that responsibility for this evidence

does not lie with the forensic pathologist alone. The power of forensic pathology to

influence the outcome of a case must be carefully monitored. History has shown that

the consignment of this responsibility to the pathologist alone can lead to miscar-

riages of justice, an outcome that the justice system must prevent. As the Inquiry into

Pediatric Forensic Pathology in Ontario (the “Goudge Inquiry”) found, the courts,

defence counsel, and prosecutors “have much to contribute in helping to achieve this

objective.”4

In keeping with the goal of this book, this section will focus on the practical con-

cerns facing Crown and defence counsel when dealing with forensic pathology evi-

dence. When counsel on both sides approach forensic pathology in a professional

and cautious manner, the truth-seeking goal of the criminal trial is enhanced and the

spectre of miscarriages of justice is safely controlled.

A. Forensic Pathology in Context

As much as any other field of expertise, forensic pathology has the potential to mys-

tify and overwhelm judges and juries. Forensic pathology continues to be the subject

of dramatic focus in the popular media, often depicted as the key to unlocking every

1 JG Van den Tweel & CR Taylor, “A Brief History of Pathology”(2010) 457 Virchows Archiv3.

2 The etymology is traced back to the Latin word forensis, which meant a public place of assembly.

3 Frederick A Jaffe, A Guide to Pathological Evidence,4th ed (Toronto: Carswell, 1999) at 3.

4 ST Goudge,Inquiry into Pediatric Forensic Pathology in Ontario (Toronto: Ontario Ministry of

the Attorney General, 2008) vol 1 at 46.

© [2022] Emond Montgomery Publications. All Rights Reserved.