FSC360 TEST II

Lectures: 6-10

What is a wrongful conviction?

A more narrow term, it is when a factually innocent person is convicted of a crime they did not commit.

What is a miscarriage of justice?

A broader term, can include many issues (e.g sentence and procedure issue). Could represent a number of different scenarios, including errors in law affecting either the public or the accused.

Examples:
Sentence: too harsh or too light
Procedure: Trial procedurally unfair, something unfair about how trial was conducted

What is the triple failure of the justice system?

Bruce MacFarlane, “Convicting the Innocent: A Triple Failure of the Justice System” (2006) 31 Manitoba Law Journal 3 at 480:
1) An innocent person is WRONGED
2) A guilty person is allowed to go FREE without being accountable to the public
3) Family of victim has to cope with the fact the perpetrator is not held responsible

Factors contributing to wrongful convictions?

Usually it is not one of these, but a couple.

Eyewitness Identification Error
False Confessions
False Guilty Pleas
Unreliable Witnesses, Jailhouse Informants and Perjury
Evolution and Errors in Forensic Science
Rush to Judgment and Tunnel Vision
Professional Misconduct and Noble Cause Corruption
Ineffective Assistance of Counsel
Systemic Racism/Discrimination

We do not know how often WC occur, the only way to know is to have fresh evidence saying the person is not responsible.

Critically analysing forensic science in Canada

Many public inquiries, reports address fsc, a compiled list, commissioners lead public inquiries, often times they are judges. LISTED IN CHRONOLOGICAL ORDER

1. The Ratushny Self Defence Review
2. The Morin Inquiry
3. The Inquiry regarding Thomas Sophonow
4. The Manitoba Forensic Evidence Review Committee
5. The Driskell Inquiry
6. The Goudge Inquiry
7. Forensic Science in Canada: A Report of Multidisciplinary Discussion (The Hart House Report)
8. The Motherisk Hair Analysis Independent Review
9. Report of the Federal/Provincial/Territorial Heads of Prosecutions Subcommittee on the
10. Prevention of Wrongful Convictions (2018) (“FPT”)

What is R v Lavallee?

R v. Lavallee (The BWS case) Lavalee: expert can rely on inadmissible and admissible evidence, first time BWS was recognized by SCC

Context: The appellant was a female who had killed her abusive partner and the forensic psychiatrist concluded she had been “terrorized” by her partner. Continuing pattern of abuse.
Forensic psychiatrist concluded that the appellant shot her partner as a desperate act as she sincerely believed she would be killed that night
Held: The SCC restored the appellant’s acquittal, self-defence is a full defence

Prior to 1983, rape within marriage was NOT an offense, also when term "rape" turned into sexual assault.

1. What is the Ratushny Self Defence Review?

Justice Lynn Ratushny was appointed to conduct a self-defence review aimed at determining whether there were Canadian women convicted of homicide who may have acted in self defence

Applications to participate sent to all 236 women serving a sentence for homicide in Canada
98 women responded

Final report of July 1997: Justice Ratushny recommended remedies for 7 cases
3 pardons, 3 remissions of sentence, and one new appeal
Only 1 of these recommendations was accepted and not a single woman was released

Is a review binding?

NO- They are simply a recomendation, no one actually has to follow/ not employed no matter how much $$ has been used, recommendations usually implemented

Guy Paul Morin Case

Arrested: 1985, murder of Christine
Two trials - Convicted: 1992
Conviction: First Degree Murder of 9-year -old Christine Jessop
◦ Exonerated: 1995 when DNA evidence from underwear excluded him, happened 10 years after his arrest
◦ Evidence of innocence: DNA
Takes a long time for wrongful convictions to be corrected

TRIAL #1: EVIDENCE AGAINST MORIN
- Hair in Christine’s necklace microscopically similar to Morin’s (“match”)
- Hair in Morin’s car microscopically similar to Christine’s (“match”), pinky purpley firbres in his car and her stuff
- Fibres from Morin’s car: could have same source as fibres on Christine’s effects
- Two jailhouse informants testified that Morin confessed

TRIAL #2: EVIDENCE AGAINST MORIN
New witnesses:
- Police constable: Morin not concerned on night of disappearance
- Band member: Morin shocked at the “uncaring way” Morin remarked on Christine’s death
- Christine’s best friend: Morin white knuckle gripped hedge clippers
Neighbour: Morin chased Christine away from his car
Christine’s Mother: Heard a man’s voice screaming after Christine’s funeral – believed it was Morin

2. What is the Morin Inquiry?

Science evolved: DNA available
1998 Inquiry: hair and fibre evidence essentially valueless and overstated; fibres represented contamination at lab, the pink ones actually from sweater of lab technician
Tunnel vision occurred
Jailhouse informants unreliable
October 2020 Genetic Genealogy Break in the Cold Case
Led to new suspect Calvin Hoover as the source of the DNA from semen found on Jessop’s underwear

What happened with Thomas Sophonow?

December 1981: 16-year-old woman strangled in the donut shop where she worked in Winnipeg
Male suspect: 21-30 years old, brown hair, cowboy hat, scruffy looking with scraggly sideburns, brown moustache, tall, slim, build, waist length coat, blue jeans, cowboy boots

His alibi: he wanted to visit his daughter and he went to a children's hospital and went to deliver gifts, was confirmed thru testimony of a nurse, he was convicted

KEY EVIDENCE against Sophonow: eyewitness ID. Tried three times. Had confirmed alibi.

3.The Inquiry with Thomas Sophonow?

Several findings and recommendations related to eyewitness identification evidence
Live line-ups: double-blinded procedure and officer should advise witness that he does not know if the suspect is in the lineup or, if he is, who he is (emphasizing the suspect may not be present).
At least 10 persons + “fillers” of similar resemblance to perp or suspect + degree of certainty statement + recorded (verbatim) in terms of what the witness said e.g if the witness aid “i'm pretty sure that's him”

Photo pack line-ups: double blinded + same recommendations as above. Photo pack must be presented sequentially.
Prior to presenting photo pack, officer should advise that it is just as important to clear the innocent as it is to identify the suspect

4. MANITOBA FORENSIC EVIDENCE REVIEW COMMITTEE (2004)

Established April 23, 2003 (shortly after Driskell’s innocence demonstrated by flawed hair microscopy
Mandate: 15 year retrospective review of Manitoba homicide cases that relied on hair microscopy evidence
Conditions: accused pled not guilty, convicted, appealed to Manitoba Court of Appeal asserting innocence and had appeal dismissed

Two cases identified: Kyle Unger and Robert Sanderson

Both cases: experts testified that hair evidence at crime scene “consistent with” known scalp hair samples
Both cases: mtDNA proved that the hairs did not belong to Unger nor Sanderson (nor any maternal relatives)

October 2005: Manitoba Justice concluded that case against Sanderson remained strong
Unger: Innocence Canada submitted s. 696.1 application and new trial ordered
2009: Crown advised that it would not be proceeding with retrial

FBI/DOJ MICROSCOPIC HAIR COMPARISON ANALYSIS REVIEW (MHCA)

Purpose: Did this microscopic hair comparison analysis testing meet accepted scientific standards?

Identified 3,000 cases where FBI examiner submitted reports or testified in trials using microscopic hair analysis
March 2015: FBI reviewed approximately 500 cases
In 257 out of 268 cases where examiners provided inculpatory testimony, erroneous statements were made (96%)
In at least 35 cases, the accused received the death penalty. Errors were identified in 33 of these 35 cases (94%)
9 people already executed. 5 died of other causes while on death row

What is the Goudge Inquiry? What was a major recommendation?

Inquiry launched in response to a series of wrongful convictions related to Dr. Smith’s problematic testimony in criminal pediatric death cases between 1991 and 2001.

Problems with Smith
1. Educational Background; he was not trained nor certified
2. Autopsy practice: he rarely attended scene, did not get all info, documentaion was not careful
3. Interaction with criminal justice system: not mindful of expert’s independent, objective role + speculated + anecdotal evidence + lied under oath

Overall: systemic failures of oversight.

Major recomendation was guard against bias by “thinking truth” rather than “thinking dirty”

THE MOTHERISK COMMISSION INDEPENDENT REVIEW: JUSTICE LANG (2015)

examined the use of drug and alcohol hair-strand testing in criminal and child protection cases between 2005 and 2015. Findings (at p. 4):

1. Testing was inadequate and unreliable in use in child protection and criminal proceedings
2. MDTL operations did not meet internationally recognized forensic standards, the work was not considered forensic in the first place , testing checked whether or not children was exposed to drugs or if the parents did
3. Hospital for Sick Children did not provide meaningful oversight over MDTL
4. The use of the hair testing in legal proceedings has serious implications for the fairness of those proceedings and warrant additional review

REPORT OF THE MOTHERISK COMMISSION: JUSTICE BEAMAN (2018)

2005-2015: Motherisk Laboratory tested more than 24,000 hair samples for drugs and alcohol, from over 16,000 different individuals, for child protection purposes.

Aim: to determine whether the testing had a substantial impact on the CAS and court decisions. If so, it was possible that the child, parent or other caregiver might have a legal remedy.

Motherisk test results had a substantial impact on the outcome of 56 cases.

In vast majority of cases, other evidence supported the CAS and court decisions.

Adoptions are hard to undo, many people lost their children because of these lab tests and couldn't get them back

What should lab tests for legal purposes have?

Should be done in an accredited lab, purpose is to enhance !! OVERSIGHT, TRANSPARENCY and ACCOUNTABILTY !!

FPT (federal provincial territorial) HEADS OF PROSECUTION COMMITTEE REPORT (2018)

FPT governments should support the creation of a permanent national multidisciplinary group to study and make recommendations concerning aspects of forensic sciences in Canada.
FPT governments should consider amendments to the Criminal Code and other provincial legislation, including rules of criminal procedure, to codify, clarify and enhance the common law rules concerning the admissibility of expert opinion evidence.
All levels of court should consider amendments to Practice Directions concerning the requirements for the admissibility of expert opinion evidence.

With respect to forensic evidence, education is a continuing and continual priority.

TRUE

What are wrongful convitions caused by? What are lessons we can learn from them?

The result of many systemic issues converging into one case. Not typically caused by one problem occuring in isolation.

Lessons~
1. Apprehending the correct perpetrator (preventing future crime)
2. Protecting the innocent by preventing a wrongful conviction
3. Assisting the victim/deceased and their family
4. Upholding the administration of justice (including appropriate handling of “no crime” cases)

R.v Tamara Broomfield

The case that initiated the Motherrisk Review.

Broomfield was convicted of assault causing bodily harm, aggravated assault, failing to provide the necessaries of life and administering a noxious substance to her son, who was 2 years old at the time

Charged with: assault causing bodily harm, failing to provide the necessaries of life
Stay ordered: aggravated assault, administering a noxious substance to her son

Son had fractures that occurred 2x, 8 rib fractures, two that were fractured twice (ones that healed and then came back)

Experts testified that woman put lots of cocaine in the son, pharmacologist/toxicologist and technician from Motherisk lab saying the same thing

Crown wanted to prove it was Broomfield providing the cocaine
Sons hair sample= high examples of cocaine

You would think this evidence is very powerful to T.O.F, she was charged with all of the charges

Conclusion of hair testing: Broomfield administered substantial amounts of cocaine to her son over a 14-month period
The cocoaine given to him was the reason he experienced those seizure like symptoms

Appeal of the Convictions for R.v Broomfield

Did not appeal the convictions arising out of the several fractures to the child but did appeal the convictions arising from the ingestion of cocaine from Motherisk lab

On appeal (R. v. Broomfield, 2014 ONCA 725), fresh evidence was submitted questioning the methodology and results of the expert evidence presented at trial. Said there were problems with them, challenged the methods used, critisized it, lawyers questioned validity of results

Crown invited a stay and Court agreed, the reason why there was a stay ordered because they thought it was not in the public interest to proceed, came to this conclusion by setting out that Broomfield served a 49 month service, double the one she was supposed to serve because of the cocaine.

Also, Motherisk was specialised, samples would be sent to this lab to get conclusions because there was no other lab.

R v Anthony Hanemaayer

EYEWITNESS IDENTIFICATION ERROR AND FALSE GUILTY PLEA
- Man broke in and entered residence, armed with knife, entered bedroom of the girl, mom saw intruder and formed a description, he drove away in white car. She engaged in her own invetigation.

- She began phoning construction companies, thought the intruder was a worker. Construction company in the area had an employee of that description
- Report made to police and the mother identified Hanemaayer from a photo line-up, said her photo was less sharp than other photos
- Hanemaayer arrested on Dec. 18, 1987 for break and enter and assault
- Hanemaayer didn't have a white car, where tf did he get it from? He had a black car
- Hanemaayar also had quit his job five days before the intrusion

What is a guilty plea, and what are the conditions for accepting one?

A guilty plea is when someone pleads guilty with the goal of getting a lighter sentence that they would have gotten if they proceeded to trial.
Everyone's right to proceed to trial and hear evidence against them
A person is never put into a position where they are punished to go to trial


Conditions for accepting one.
1. The accused is making the plea voluntarily
2. The accused understands that...
a. the nature and consequences of the plea
b. that the plea is an admission to the essential elements of the offence
c. The court is not bound by any agreement made between the accused and the prosecutor; and
3. facts support the charge

Hanemaayer's Guilty Plea and Re-Investigation

Guilty plea entered to: 1) B&E and committing an assault; and 2) assault while threatening to use a weapon
Sentence (joint position): 2 years less a day (provincial jail time)

Paul Bernardo confessed to the B&E and assault because of the details he provided, e.g next day he came and stole the licence plate

Fresh evidence:
Results of the police investigation
Hanemaayer’s Affidavit (explained why he changed his plea from not guilty to guilty)

GOUDGE INQUIRY (2008): INCORRECT AND MISLEADING EXPERT TESTIMONY- Six cases related to wrongful convictions

(1) Maria Shepherd
(2) William Mullins-Johnson
(3) Tammy Marquardt
(4) Richard Brant
(5) Dinesh Kumar
(6) Sherry Sherrett-Robinson

R. V. MARIA SHEPHERD

Flawed expert opinion and false confession example!
1991: Charged with her three-and-a-half-year-old step-daughter’s death
Shepherd was 21 years old at the time, with two young children and pregnant with her third child

Smith’s Conclusions: Death was a result of abuse, involving a blow or blows to the head. He used examples of a watch and said it was a match the the scalp.

1992: Shepherd entered a guilty plea to manslaughter but since the guilty plea was not informed, it was not valid

R. V. WILLIAM MULLINS-JOHNSON: NO CRIME CASE STUDY

June 26, 1993: Babysitting four-year-old niece and put her to bed. Died during the night. 24 hours he was arrested with 1st degree murder and aggravated sexual assault.

Esentially, the baby died because of natural causes. No evidence of assault, sexual abuse, or murder
Cause of death at trial not supported by the evidence: homicidal asphyxia
Cause of death: undetermined

Can the courts impose a finding of innocence?

NO! Criminal trial does not prove innocence but if the crown has proved the case beyond a reasonable doubt!
When an acquittal is entered, the appellant’s legal innocence has been re-established
No need to make a formal finding, presumption of innocence clocks the person

Jurisdiction and power

There are not two kinds of acquittals in Canadian law
A criminal trial does not address “factual innocence”. The trial determines whether the
Crown has proven its case beyond a reasonable doubt.
A finding of factual innocence does not fall within the ambit or purpose of criminal law, no power even if they wanted to

Policy

Important policy reasons for not recognizing a third verdict of “factually innocent”
Most compelling: the impact on others found not guilty

CONCLUSIONS TO LECTURE ON WRONGFUL CONVICTIONS AND MISCARRIAGES OF JUSTICE

They can happen, there is no verdict of factually innocent,
Wrongful convictions are a triple failure of the justice system but they have provided lessons that have improved the criminal justice system over time as well as critical analysis of expert evidence/forensic science disciplines

REMEMBER:
(1) Every wrongful conviction case begins as a seemingly strong case with a properly found conviction
(2) Forensic evidence is only one part of a larger evidentiary puzzle

How do death investigations and criminal law intersect?

When a persons death involves a criminal offence.

What are the relevant criminal offences?

1. First-degree murder: Planned and deliberate
2. Second-degree murder: All murder that is not first-degree murder

Manslaughter: Esentially accidental death, homicide WITHOUT intentionm not murder and not infanticide

Infanticide: Applicable only to female persons, willful act or omission a female causes the death of her newly obtained child and not fully recovered from the effects of childbirth and her mind is disturbed.

Specific issues of proof with death investigations?

- ID: Deceased AND perpetrator
-Murder crime cause and manner of death
-Level of intent and planning
-Circumstantial evidence proving the accused’s guilt, can be used with other pieces of evidence

What is forensic anthropology?

A subfield of anthropology, focusing on life, death, and post-life history of an individual, reconstructed from analyzing their skeletal remains and the context in which they are located.

Can involve remains that are not recognizable because of being burnt or decompsed (e.g Bosma)

What is the scope? -> one individual or a mass fatality (e.g., train derailment and fire, as in Lac-Mégantic) or serial murders (e.g., Pickton case).
Used since 1997, older than DNA analysis

Who is the forensic anthropologist and how do they work?

They work with police to look for bodies, parts and graves in forensic contexts. They recover these remains as well from fires, burials, wells etc.

Their key functions are
1. Identification
2. Excavation
3. Evidence collection

What is a skeletal examination with forensic anthropologists?

1. A biological profile: who was the person (can include age, sex, height)
2. Trauma analysis: What were the circumstances of death? **Can only comment on this if it has affected the SKELETON
3. Taphonomy analysis (effects on body after death): what was the sequence of events surrounding and subsequent to death? May be scavenging behaviour or scattering remains across the scene

What are potential opinions a forensic anthropologist can provide?

(1) Identifty: They can come to conclusions on ancestry because its related to biological inheritance, NOT race and ethnicity.

(2) Trauma Analysis: Three main types ~
a. Nature of injury
b. Determining the sequence and number of injury events
c. class or individualizing characteristics, can only be assesed from bone if a weapon leaves an imprint.

What happened in R.v. Hamilton?

Police investigation into missing persons case, Hamilton shot victim and set fire to body, burn pit found near residence. Fsc Anthropologists found charred human and dog fragmenets, confirming details. 20km search area showed us 13 human bones.

Key issue at trial: Did Hamilton act in self-defence?

His Position was that the deceased had been drinking and was aggressive and Hamilton acted in self defence, TOF didn't believe this and found him guilty of 2nd degree murder

What happened in R.v. Robert Pickton

21-month long excavation of his property for remains of missing woemn. Charged with 27 counts of first degree murder. Massive case, 129 witnesses and 1.3 million pages of documents.

R. v. Pickton: Similar fact evidence and the Jane doe Bone

Crown sought to tender the bones of “Jane Doe” (left heel bone and left rib) as similar fact evidence
SFE (similar fact evidence): Related to the identity of the person responsible for murdering the six women on the indictment

Held: Jury would be instructed to disregard the entirety of the Jane Doe evidence because it failed to provide “some evidence” linking Pickton to the similar act

Appeal: Trial judge erred in his analysis. There was indeed “some evidence” linking Pickton to the Jane Doe bones.

Other SFE Evidence at issue: The Crawford bone evidence

SFE application: a piece of long bone recovered from a manure cistern on Pickton’s property that was linked by DNA to Wendy Crawford
Relevant to:
(1) The identity of the perpetrator and
(2) The truthfulness of Pickton’s statement to Andrew Bellwood
Location of bone: near Pickton’s residential trailer and towards the end of a demolished piggery on the property

After forensic anthropology and toolmark examinations, the bone was ground to facilitate DNA testing

Mass Fatality Investigations: The lac-mégantic

Canada's "worst" railway disaster, 7.7 million L of petroleum oil derailed and exploded, killing 47 and destroying downtown. The search process was meticulous and they found material representative of human remains.

Forensic anthropologist determines if the material is representative of human remains
If so, coroner notified so removal and identification process can begin

Victims’ bodies burned for many hours. Remains were therefore predominantly bone.
Fuel: crude oil – unlike a house fire that is fuelled by wood and other building materials, burned for several hours.

During first two weeks: only 22 of the 47 victims were positively identified
Primary methods of identification: DNA analysis and dental records

To confirm a victim’s identity, two forensic methods should be used and they should result in the same answer !!!

Key issues with the Rail?

1. Fire in the locomotive
2. Braking force was not sufficient
3. Class 111 tank cars did not have enhanced safety features
4. Safety culture, organization was not proactive
5. Transport Canada, elevated risk
6. Dangerous goods, the oil was more dangerous than described in the shipping documents.

What happened in R.v. Brown?

Defence application: introduction of photo anthropometric testimony in relation to video evidence depicting the perpetrators of a fatal shooting
Ultimate issue: the identity of the men – suspected to be Mr. Francis and Mr. Grant – in the video

Held: Admissible
Frailties not so significant to render the evidence inadmissible
Frailties could be addressed in cross and during the charge to the jury

Found guilty.

What is forensic entomology?

e study of the carrion insects associated with a dead body.
One of the most accurate methods to estimate the time elapsed since death (post-mortem interval) Usually maggots…of some fly species

What is the primary aim of forensic entomology?

To estimate the minimum colonization time of insects on a dead body to inder the time elapsed since death (AKA post-mortem interval)
Insects CAN be used as an alternate toxicologial specimen when tradtional samples no longer available.

Victims DNA can also sometimes be extracted from DNA

First used in Canada in 1960's.

How do forensic entomologists work?

Reports describe;
- Insects, type and number and how they colonize remains
- How insects develop through their life cycle
- How each stage and species may be ID'd
- Opinion: age of insect and age of insect colony of the victim

Two areas of analysis overall: (1) insect development (blow fly life cycle), and (2) successional ecology (sequence of insects that colonize the remains over time)

Testimony may address:
Length of time insects have been associated with the remains (informs estimate of the minimum elapsed time since death, based on degree days)

What are possible opinions a forensic entomologist may provide?

1. Estimating the minimum length of time a person has been dead
2. Assists in developing a timeline. May focus police efforts and either strengthen or weaken a suspect’s alibi
3. Forensic entomology may also be used to discern information about a body after death:
- Whether a body has been moved from one site to another
- Whether a body has been disturbed after death
- The presence or position of wound sites that are no longer visible due to decomposition

The case of R.v Pickton and entomology?

1. An estimate of the amount of time between death and freezing of remains
2. Opinion on the time of the year when the women died

What happened in R.v Hosack?

Forensic entomology is “useful evidence in the right circumstances.” (Schultes J. at para. 129)
Complex homicide case: dismemberment and hiding of body parts, with earliest discovery of some parts being approximately one month after death

The linear relationship between temperature and insect development breaks down at higher temperatures
This reality limits the ability to calculate the effect of higher temperatures on the time of death estimate

Dr. Anderson was recognized as an eminent authority in her field but the court did not rely on the forensic entomology evidence because the non-linear relationship was “too significant a wild card.” (para. 129)

What happened in R.v. Truscott?

Wrongful conviction of Steven Truscott in the sexual assault and death of Lynne Harper.
- Sentence was for death, changed to imprisonment
- Most FAMOUS canadian case for the use of forensic entomology.

Key Issue at trial: Forensic pathology evidence of stomach contents, rigor mortis, and body decomposition resulted in Dr. Penistan concluding that Harper died between 7:00 pm and 7:45 pm on June 9, 1959

Five entomologists called;
Dr.Haskell calculated PMI using flesh fly larvae.

Fresh evidence:
Forensic pathology evidence that stomach contents was not a reliable method to determine time of death

The Court highlighted the importance of experts providing non-biased, objective testimony based on a foundation of replicable and relevant factual data.

What is forensic pathology?

The application of pathology to legal issues involving deaths that society has an interest in examining for public health

Most times homicide's are investigated.
Sudden and unexpected deaths are also investigated to determine COD and MOD

What does cause of death mean?

Essentially WHY did the death occur. This is usually the most valuable piece of information a pathologist can provide.

Events around the time of death to disease, trauma, or toxicological considerations, provides the link that experts can share with us, they piece it all together

What is the mechanism of death?

The pathophysiological chain of events following the COD. For example, hemorrhage and physiological shock. Essentially what caused the COD.

What is the manner of death?

The way and means the death occured by, usually CORONER certifies this.

What are the possible manners of death in Ontario?

1. Natural 2. Accidental 3. Suicide 4. Homicide 5. Undetermined

What do forensic pathologists provide? What do they do?

A medico-legal opinion drawn from the circumstances of death and the findings in the autopsy.

Forensic pathologist conduct the autopsy and make conclusions for COD and mechanism of death

All fsc pathologists MUST be a doctor, although in some provinces coroner's do not need to be one.

They are a jack of all trades, each case is different and require the pathologist to act accordingly.

What does the coroner do?

Certify the manner of death.

What are the medico-legal autopsy steps? (five steps)

1. Consideration of the scene and circumstances; nowdays pathologist doesnt attend scene but can; review pictures to understand more

2. External examination of the body; head to toe, x-ray maybe

3. Internal examination

4. Special labratory tests (ancillary tests); toxicology (examination of body fluids for drugs) and histology (examining tissues for abnormalities)

5. Creation of expert opinion

Potential opinions from the forensic pathologist?

- Has to prove the deceased is actually dead.
- Do not have to prove COD but can help
- Can also provide ID of deceased, ability to move after injury, post-morterm interval estimation, health considerations in injury determination

Nature and timing of injuries, including type of weapon that may have been used, a generalized opinion, could it be a knife? Was it smooth? How deep did it penetrate into the body? What weapon can be consistent, but ensure strengths and limitations are imposed on the court?

Blunt force trauma and Sharp force trauma?

Blunt force is caused by direct application of force against tissue, usually causes intenral bleeing; e.g a hammer on hand

Sharp force are wounds made by a sharp-edged instrument, e.g a knife

Other injury types?

Gunshot wounds, asyphxia and strangulation, abuse and neglect; usually in children and elders.

Examples of forensic pathology in criminal cases; (1) Key considerations relevant to a fact at issue

R.v. Gallant, position of the deceased in vehicle. (Issue of who was the driver)

R.v. Perlett; time elapsed from shooting to arrival of police on scene based on blood loss and changes in blood

Examples of forensic pathology in criminal cases; (2) Wound causation and weapon identification

R.v. Jaw; estimated distance from where gun was fired
R.v. Butorac; if pattern injuries consistent with being inflicted with a certain item
R.v. R.D; type of instrument capable of inflicting a particular wound

R. v. Taylor?

Forensic pathologist opined: “all wounds were inflicted from behind” and “were consistent with an attack from behind.”
Referred to characteristics of “homicidal attacks”

nadmissible! -> Made a pre-judge effect on jury and term homicidal attack shouldnt be used, he went beyond scope of expertise or evidence didnt reach reliability threshold.

Why?
“Homicidal attacks” prejudged an issue before the jury and “homicidal” should not be used in evidence

Beyond the scope of the expert’s expertise OR
the evidence did not meet the reliability threshold because the forensic pathologist provided no real reasoning as to how he arrived at his opinion

The case of Dinesh Kumar?

Child; Gaurov
March 18, 1992: Gaurov had stopped breathing and Dinesh performed CPR to no effect
March 20, 1992: Gaurov passed away

March 21, 1992: Dr. Smith conducted the autopsy and concluded COD was Shaken Baby Syndrome, that Kumar shaked him to the point where he turned blue and passed away as a result

June 26, 1992: Dinesh arrested

Guilty plea offer: guilty plea to criminal negligence causing death

No evidence that Dinesh harmed Gaurov

One possibility: Gaurov suffered a fatal hemorrhage caused by a head injury that he sustained during his birth

January 20, 2011: ONCA set aside the guilty plea and entered an acquittal

What happened in R.v Hiller?

Charge: Manslaughter
COD: Cardiac arrest
Central issue: Causation?

Hiller caused St. Louis’ death during a fight by placing St. Louis in a headlock that compressed his neck, causing the victim’s heart to stop.

Finding:
Expert’s opinion on COD does not prove beyond a reasonable doubt that the accused caused the victim’s death, needed something more

What should a trial judge do when they have questions on the validity of an expert opinion and those questions have not been asked to be put to witness by counsel?

Notify counsel of the judge’s concern and provide counsel with the material that grounded the concerns.

Trial judge told counsel in advance the question that she would ask, gave them opportunity to object

Judicial intervention a delicate matter:
Respect the principles of transparency and fairness!!!!!

Why were impaired driving offences created?

The parliamentary intention was to recognize the danger of driving under the influence of alcohol or drugs.
Safety of the public.

New legislation in December 18th 2018.

Emphasizing deterrence

What is the crime which causes the most significant social loss to Canada?

Impaired driving: most frequently occurring type of case in the Canadian criminal justice system.

Alcohol: 97% of impaired driving incidents, other drugs 3% of impaired driving incidents

Dangerous driving and impaired driving are unacceptable at all times and circumstances

Driving is a highly regulated privilege

What are the three statutes that govern impaired driving and toxicology?

(1) The Criminal Code
(2) The Controlled Drugs and Substances Act (CDSA)
(3) Provincial Highway traffic act

What does the criminal code outline with driving offences?

Criminal Code provisions govern the collection of breath or blood samples in the context of impaired driving offences, makes impaired driving an offense!!

- If someone is charged under CC, it also will come with a charge from the HTA.

What does the CDSA outline with driving offences?

Does not address drug impaired driving offences but does address drug related offences in general (e.g., possession, trafficking, etc.)

What are the two sentencing principles and what do the seek to do?

1. Deterrence: seeks to discourage people from impaired driving though consequences, the punishment that comes with conviction. Includes general (public) and specific(one person).

!!! General deterrence is the primary consideration in alcohol related driving offences !!!

2. Denunciation: seeks to denounce (publicly declare as wrong); impaired driving as a criminal act.

Are there mandatory ASD (alcohol screening device) demands now in place?

Yes; An officer can pull over someone, ask them to blow into it JUST to check. Happened in 2018, before officers had to have suspicion, now they do not need to.

Refusal to provide a breath sample, 2000$ minimum

Charges for alcohol and impaired driving?

- Under 120mg of alcohol in 100mL blood: $1000 + driving prohibition (12 months)
- Between 120-160 BAC: $1500 + driving prohibition (12 months)
- 160+: $2000 + driving prohibition (12 months)

Increased minimums for repeat offenders:
For second offence, minimum of 30 days jail
For each subsequent offence, minimum of 120 days jail

Minimum available fine goes up depending on what the BAC of the convicted person is, comes with driving prohibition.

What happened in R.v. Bingley?

Case if drug recognition expert evaluation was a reliable method?

Statute now makes DRE'S AUTOMATICALLY ADMISSABLE. No need for Mohan noir dire. Expert can still also be challenged on perhaps not being necessary.

Note: SCC does not say that DRE evidence was automatically admissible, but that void dire unnecessary and expert can be challenged on other criteria besides "qualified expert"

What happened in R.v. Stellato?

(a) impairment to any degree
The offence has been made out if the evidence of impairment establishes any degree of impairment, ranging from slight to great.

What happened in R.v Jackson?

Prosector must disclose list of items related to the functioning and operation of the approved instrument.

What happened in R.v Laycock?

DRIVING prohibition order takes effect the day it was made, when they are convicted NOT after the person is released on bail

Rejects R. v. Lacasse, 2015 SCC 64: held that prohibition order takes effect after release

WHAT’S THE DIFFERENCE BETWEEN THE OFFENCES OF IMPAIRED DRIVING AND DRIVING WITH 80+ BAC?

Impaired driving: may or may NOT need BAC
- BAC not always needed in trials but often called on
- forensic toxicologist also not necessary
- Must be evidence of any degree of impariment
- drug or alcohol or a combination

80+ (ALWAYS refers to BAC)
- Alcohol ONLY, and always required in trials
- BAD readings always needed
- fsc toxicologist may not be needed
-no need evidence of any degree of impariment

Drug per se limits?

Drug per se: 5 ng or more of THC per mL of blood within 2 hours of driving, this is a hybrid offence
“Low” drug per se: 2ng but less than 5ng within 2 hours, summary offence
Combined OH/drug, 2.5ng THC per mL of blood AND 50mL of alcohol per 100ml of blood, hybrid offence

What is a presumption with consumption of alcohol and drugs?

PRESUMPTION #1: VOLUNTARY CONSUMPTION
Presumption: The alcohol or drug was voluntarily consumed

Presumption can be rebutted IF accused raises a reasonable doubt as to whether they knowingly consumed the alcohol or drug

Examples:
Ingested a prescribed medication without being aware of its effects

What is a presumption with consumption of alcohol and drugs?

PRESUMPTION #2: DRIVER’S SEAT PRESUMPTION

If it is proven that the accused occupied the seat or position ordinarily occupied by a person who operates a conveyance, the accused is presumed to have been operating the conveyance unless they establish that they did not occupy that seat or position for the purpose of setting the conveyance in motion.

Accused bears the onus of establishing on a balance of probabilities that their occupancy of the driver’s seat did not begin with the purpose of setting the vehicle in motion

CASE EXAMPLES OF FAILED ATTEMPTS TO REBUT THE PRESUMPTION OF DRIVERS SEAT

What if the person is asleep when police arrive?
Presumption still applies!

What if the person planned to sleep and drive “later on”?
Presumption still applies!

What if the person claims, “I’ll only drive when I am sober”?
Presumption still applies!

What if the vehicle is turned off?
The vehicle being immoveable or inoperable does not defeat the presumption.
The Crown does not need to prove any further risk of danger as that is irrelevant

PRESUMPTION #3: PRESUMPTION OF ACCURACY?

Presumption: At the time of testing, the BAC is accurate

Presumption is proven if:
1. System air blank test: ≤ 10mg of alcohol in 100mL of blood
2. System calibration test: within 10% of the target value of an alcohol standard certified by an analyst
3. Interval of at least 15 minutes between samples
4. Truncated results do not differ by more than 20mg of alcohol in 100mL of blood

PRESUMPTION #4: BAC (STATUTORY READBACK)

Presumption: The Court can conducts its own “readback” of the accused’s BAC, without the need for the Crown to call a forensic toxicologist. Meant to reduce the # of times a toxicolgist has to be called

THE STATUTORY READBACK IN ACTION

IF: The first sample is taken more than two hours after the person ceased to operate the conveyance
AND: The person’s BAC is above 20mg/100mL at the time of testing
THEN: The person’s BAC is conclusively presumed to be the BAC at the time the samples were taken
PLUS: 5mg for every complete 30 minute period in excess of those 2 hours

Time of driving: 8pm
Two hours is up: 10pm
Time of Sample: 11:35pm
Sample result is 70mg/100mL
Between 10pm and 11:35pm, there are 3 complete 30 minute intervals, +5 everytime
Conclusive BAC at trial: 85mg/100mL

PRESUMPTION #5: DRUG CLASS MATCH PRESUMPTION

If a bodily sample contains the same drug as the one identified by the DRE at
the scene, then it is presumed that: (1) the drug was present in the person’s body when they
operated the vehicle; and (2) the drug specified caused their impairment.

Common defences with alcohol and drug offences?

COMMON DEFENCES
Charter defences are almost always raised in drinking and driving cases

Most common defences are, in addition to a s. 24(2) analysis:
S. 8: Right to be secure against unreasonable search and seizure
Police did not have reasonable grounds to arrest, therefore taking the breath samples was an unreasonable seizure

S. 10(b): Informational + Implementation
RTC must be provided immediately upon detention
There is a reasonable limit on this: police permitted to conduct roadside screening test

SEXUAL ASSAULT + ADMINISTERING A NOXIOUS THING

Sexual assault covers a broad range of non-consensual touching, Lower range would be touching over clothes and higher would be gang sexual assault.

Determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred

Facts about consent legally?

If it was consensual at the time, it is not a sexual assault, even if one of the parties regretted it after.
Consent can be revoked at any time!

Meaning on consent: onsent means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

No consent obtained:
- (b) the complainant is incapable of consenting to the activity; related to drugs and alcohol

Alchohol and/or drug facilitated sexual assaults

Alcohol is the most common drug incvolved in sexual assaults. Potential problem: possible memory loss from alcohol-induced black outs

Combining alcohol + drugs can exacerbate the effects
Offence specific to drugs seen in the sexual assault context: administering a noxious substance

Aggravating: convtced person and noxious substance gets higher sentence than just sexual assault

What happened in R.v.Stone? (Defence of automatism case)

Automatism is “a state of impaired consciousness, rather than unconsciousness, in which an individual, though capable of action, has no voluntary control over that action.”

Section 33.1: Non-mental disorder automatism is not a defence IF the automatism is: 1)self-induced by voluntary intoxication; and 2) the offence charged is a violence-based offence

What happened in R.v Sullivan and R.v.Chan?

Neither related to alcohol, but voluntary injections of drugs and committed violence to family drugs, but did not intent to do these acts because they had no voluntary control over their actions, both convicted. Chan= new trial and Sullivan, acquittal

What does this mean?
EFFECT: Non-mental disorder is a defence
EVEN IF:
(1) Self-induced by voluntary intoxication; and
(2) The offence is violent

Conclusions to forensic toxicology?

Forensic toxicology is one of the most commonly relied upon forensic discipline in the criminal courts

New laws have sought to streamline impaired driving prosecutions, including by reducing reliance on forensic
toxicologists

Beyond the impaired driving context, forensic toxicologists may be called to testify in various other types of cases

The forensic toxicologist’s testimony may be integral to providing a defence or clinching the prosecution, or to simply confirm aggravating features of the case

What case set out the laws for the test of impaired driving by the SCC?

R.v. Stellato, the main one for impairment. The case means that even a small impairment of a person’s ability to drive is sufficient to support a conviction.

What does impairment mean?

“From a scientific perspective it refers to a decreased ability to perform task”

Impairment can start as low as 15 miligrams in 100 ml of blood, becomes significant at 50 ml in 100ml

Impairment is not intoxication