Pubdate: Fri, 21 Feb 2014
Source: Globe and Mail (Canada)
Copyright: 2014 The Globe and Mail Company
Contact:  http://www.theglobeandmail.com/
Details: http://www.mapinc.org/media/168
Author: Sean Fine

TOP COURT HALTS USE OF EXPERT OPINIONS

Supreme Court Upholds Conviction in Drug Case, but Rules Witnesses 
Such As Police Officers Must Not Use Personal Experiences As Fact

The Supreme Court of Canada has told the country's prosecutors that 
expert witnesses, including police officers, must not give opinions 
based on their experience.

The ruling, in a major drug case, has wide implications for the 
prosecution of serious crimes, from high-value theft to murder, in 
which experts are called on to draw inferences or analyze evidence 
before the court. Such testimony has been linked to wrongful 
convictions, and the court was unanimous in trying to call a halt to 
opinion it feels has been disguised as fact.

The court went so far as to mock the expert testimony of an RCMP 
officer in a case in which a man accused of being a drug courier, 
Ajitpal Singh Sekhon, said he hadn't been aware that 50 kilograms of 
cocaine were hidden in the truck he was trying to drive into British 
Columbia from Washington State. The Mountie had testified that in the 
1,000 cases he had been involved in, he had never personally found a 
single one that involved a "blind" courier - someone kept in the dark 
about what he was transporting.

That testimony, wrote Justice Michael Moldaver, is no different from 
a "stolen goods investigator testifying that he or she has never seen 
a case of innocent possession of stolen property, or an experienced 
fraud investigator testifying that he or she has never seen a case 
where a senior manager was not aware of fraudulent conduct occurring 
within the company.

The inherent danger of admitting such evidence is obvious." The trial 
judge had allowed the evidence, and so had the B.C. Court of Appeal, 
by a 2-1 count.

Still, the Supreme Court upheld the drug importing and trafficking 
conviction against Mr. Sekhon by a 5-2 margin. Justice Moldaver, 
writing for the majority, said the police expert's testimony formed 
only a small part of the trial judge's reasons for finding Mr. Sekhon 
guilty. The minority dissented sharply, saying that Justice Moldaver 
had engaged in "pure speculation" by concluding that the judge would 
have found Mr. Sekhon guilty without the expert testimony. Mr. Sekhon 
had been sentenced to 10 years in prison.

Eric Gottardi, a lawyer for Mr. Sekhon, said he was disappointed for 
his client but called the ruling a big victory for civil rights that 
will apply widely, to everything from serious theft cases to murder.

He said that Canadian courts had in effect been "contracting out" 
questions of guilt or innocence to experts. From here on, though, 
"any time 'experiential' evidence points the finger directly at the 
accused, that's going to be offside. It's not just drug cases - it's 
any serious case."

He said that in cases in which police officers testified as experts, 
it was very difficult for defence lawyers to find people with the 
expertise to challenge them.

"For a while there was a proliferation of 'profiling' experts. 
There's been a murder and the killer has staged the house to look 
like there was a break-in. The Crown would call experts who would 
testify that the crime scene was staged. A lot of experts would then 
take an extra step and say, 'the profile tells us the killer is often 
someone who is known to the victim' " - which would point directly at 
the guilt of the accused individual.

Ben Berger, a criminal-law specialist at Osgoode Hall Law School in 
Toronto, said the ruling is an attempt by the court to rein in expert 
witnesses, part of a trend since Ontario's 2008 Goudge inquiry into 
more than a dozen wrongful convictions in baby deaths, stemming from 
the testimony of disgraced Toronto pathologist Charles Smith.

The Supreme Court found that "police experience on its own is 
something that has to be looked at with suspicion and a critical 
eye," Prof. Berger said. "That's important not just in a drug setting 
but in pretty much any criminal investigatory setting."
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