ONTARIO APPEAL court backs
class action..............................1
QUESTIONS ON expert
testimony remain .....................2
B.C. MOVES to beef up court
support staff............................. 3
HIGH HOPES for trade with
Middle kingdom....................... 5
FOCUS
Alternative Dispute Resolution
THE UNSTEADY road to
common ground..................... 10
HOW E-MAIL leaves a trail of
bad blood ............................... 11
COMBINED PROCESS can be
effective tool.......................... 12
Sports & Entertainment Law
TELEVISION CONTESTANTS
surrender control .................... 15
ONTARIO NOT jurisdiction for
olympic lawsuit...................... 16
BUSINESS & CAREERS
FUTURE IS in the hands of
Generation y .......................... 21
TABLETS AND e-books are
gaining ground ....................... 23
DEPARTMENTS
Careers ............... 22
Classified Ads . . . . . . . . . . 19
Lawddities............. 11
Names in the News. . . . . . . 4
Weekly Digest.......... 17
Correction
A story on pages 1 and 8 of the
Feb. 3, 2012 issue of The Lawyers
Weekly, headlined “Court says
Ponzi money not taxable,” contained an incomplete quote from
Ryan Morris, a partner with
McMillan LLP in Toronto. The
correct quote is as follows: “This
case confirms balance in the
law — the CRA should not be able
to deny deductions for unwitting
participants that claim deductions for losses while at the same
time tax unwitting participants
that were fortuitously up money.”
JEREMY HAINSWORTH
Convicted of killing her two-year-old son in 1995, Tammy
Marquardt spent almost 14 years
in prison.
The conviction, based on the
evidence of now disgraced pathologist Charles Smith, was overturned in 2011 by the Ontario
Court of Appeal.
The Marquardt case illustrates
the kind of injustice that University of British Columbia law professor Emma Cunliffe seeks to
prevent as she researches what
she sees as a critical gap between
expert testimony and published
research in cases where a parent
is accused of killing a child.
“The idea of losing a child and
then being imprisoned for a long
period of time is just devastating,” Cunliffe said.
She said the gap occurs when
experts’ testimony is far different
than what can be found in peer-reviewed literature.
“It’s less careful, and we need
to understand why that difference arises,” Cunliffe said, saying experts can fail to limit
themselves to their knowledge
in court.
And, she said, it’s putting
innocent people behind bars.
For 24 years, Smith worked in
pediatric forensic pathology at
Toronto’s Hospital for Sick Children, conducting more than
1,000 autopsies.
An Ontario coroner’s inquiry
reviewed 45 child autopsies in
which Smith had concluded the
cause of death was either homicide or was criminally suspicious.
The review found questionable
conclusions of foul play in 20 of
the cases. Of 23 charges laid in
those cases, 13 resulted in overturned convictions — including
that of Marquardt, Cunliffe said.
“She was an easy target for
Smith and she was an easy target,
I fear, for the criminal justice system,” defence lawyer James Lockyer told the court in 2011.
A public inquiry was ordered.
In 2008, Justice Stephen Goudge
concluded Smith lacked basic
pathology knowledge, “actively
misled” his superiors, “made false
and misleading statements” in
court and exaggerated his exper-
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Disgraced pathologist Charles Smith in Toronto in 2008. University of British Columbia researcher Emma Cunliffe probes
what she sees as a critical gap between expert testimony and published research in parental child killing cases.
aDRian wyLD / The CanaDian PRess
As lawyers, we tend
to assume that
experts testify on the
best knowledge
available in their field.
“
emma Cunliffe,
UBC law professor
tise. In 2011, Smith was stripped
of his medical licence.
“Your transgressions were
egregious in nature, repulsive in
result, and caused irreparable
harm to many innocent victims,”
the College of Physicians and
Surgeons of Ontario’s Marc Gabel
said in revoking Smith’s licence.
Cunliffe said she is currently
working to determine what
aggregate numbers for such
wrongful convictions might be in
Canada. She pointed to the
United States’ Innocence Project,
which looks for wrongful convictions, for numbers in other areas
of forensics. It found that in the
case of DNA forensics alone, 222
exonerations have been won in
35 states since 2000.
“Unvalidated or improper forensic science played a role in
approximately 50 per cent of
wrongful convictions later overturned by DNA testing,” the Innocence Project website says, adding
that other forms of forensic techniques are not being subjected to
rigorous scientific evaluation.
Understanding the gaps, she
said, might help courts be more
skeptical about expert testimony
to avoid miscarriages of justice
resulting from such testimony.
Further, Cunliffe said, “if the
forensics and medical evidence
are not as robust as we might
think, then guilty people are
escaping justice.”
“We need to understand how,
when things go wrong, we may
share responsibility for those
errors.”
She said lawyers already have
the analytical research skills to
find those gaps. They just need to
use them, she said.
Cunliffe and UBC colleague
Christine Boyle received a
$101,893 grant from the Social
Sciences and Humanities
Research Council of Canada for
a three-year project called
Reconsidering Child Homicide:
Investigation, evidence, and fact
determination in Canadian
cases, 1990-2010.
They compared published
medical research with what
experts said when they testified.
The current study is looking at
20 Canadian cases but Cunliffe
has also studied six Australian
and British cases.
“In Canada, this was associ-
ated with Charles Smith, who
wrongly accused 23 parents,”
Cunliffe said. “You start to won-
der whether something more is
going on.”
Given her studies in Britain
and Australia, that “something
more,” Cunliffe suggests, is a sys-
temic problem.
She said one problem is that
the trial process might not be
allowing for reliable reviews of
expert evidence. “The second is
some parents are subjected to
negative stereotyping that makes
courts and experts more willing
to accept that they may have
murdered their child despite the
fact the science is unclear.”
Professor Tamara Levy, who
leads UBC Law’s Innocence Pro-
ject, one of many across North
America, said Cunliffe’s research
is “incredibly important to post-
conviction review work.”
Levy said Innocence Project
networks have found experts who
were not what they purported to
be or who were biased.
