Big Game: Part Three: Expert Evidence; The Judge As Gatekeeper;

If, in fact, the criminal justice system is little more than a "big game" in the minds of players such as Dr. Charles Smith, what must judges do to ensure there is an element of fair play?

This Bloggist's view is that the judge has to be the ultimate protector of both the accused and the integrity of the criminal justice system when it comes to so-called "expert" evidence.

It is therefore somewhat disheartening to learn from Patrick LeSage, former Chief Justice of the Superior Court of Ontario, that judges in Ontario rarely intervene in the expert witness qualification process.

Here is his explanation:

"We don't question authority enough in some occasions.

So somebody comes in as an expert, and I'm going to say that's a word I always
avoided with a -- with a jury.

I didn't refer to them as experts.

(I) referred to them -- to people who, because of their training and experience, were permitted to give an opinion, because I think even using the word expert is --
is already cloaking them with -- with a great authority, which maybe they ought not have.

Did I -- did I, or -- question the expertise sufficiently?

Did defence counsel, or Crown counsel as the case might be, question the expertise, the basis, the underpinnings of it as much as we ought to have?

In many cases, no, we didn't.

The question you ask is in part who's response -- who is responsible to see that the expertise is questioned, challenged, assessed -- accurately and thoroughly assessed, before the evidence is -- is permitted to be -- to be given.

And it -- that -- that's -- I've always found that a difficult issue, because we
have an adversary system, and we believe quite strongly in our adversary system, maybe too strongly, I'm not sure.

And as such, I tended as a judge to more like a sphinx than a -- than an activist, and I tended to sit back and allow the responsibility for the determination of the question which I'm going to have to determine, but the -- the -- providing the -- the information upon which I was to make that decision, I really left to counsel.


And if counsel didn't raise it, I probably said well it's the adversary system, I'm not the advocate for either the Crown or the defence, the plaintiff or defendant, and, so to what extent do I become the advocate, or the defender, of the qualifications of this particular witness.

I think it's fair to say, however, that there is a -- well, it's already been said, that there's a great responsibility on the adjudicator to make an informed decision, and how do you make an informed decision if the evidence has not been adduced before you?

I find that a bit of a conundrum.

Should I launch into my own questioning and inquiry?

I don't know that answer to that question.

I -- my -- by nature, because of I always believed in -- more in the passivity of a judge, I probably often didn't inquire deeply enough into the expertise.

But unquestionably, we do cloak the expert, the opinion giver, with an authority that is very often not justified."

LeSage candidly told lawyer Jeffrey Manishen that, "I regret to say that I have
probably have only rejected maybe a half a dozen proffered experts".

Asked why he rejected the evidence in those cases, LeSage replied:

And -- and what test did I use? You know, I'm not even sure what test I used.

But I -- I probably -- I probably determined they didn't have a clue about what it is that they were supposed to be testifying about.

Or they had -- I mean they had no basis. shouldn't say they didn't have a -- they had no basis upon which to come to their conclusion.

And it's -- it's -- you often see it in the -- I won't say often, you sometimes see it in the role of reconstruction, highway reconstruction issues.

You know, it's just -- it's just -- somebody's pet theory -- that's nothing more.

But I've also rejected it in matters of art experts, and I can't remember what -- what else.

But I -- although I probably fell into it."

To this humble Bloggist, Justice Lesage's exlanation covers only one half of the story.

The other half is that some judges, like some other actors in the criminal justice and some journalists, bought into the myth of the great, reliable forensic pediatric pathologist Dr. Charles Randal Smith, and failed to do their job.

I discussed a prime example of this phenomena in an earlier posting, entitled: "Smith's credibility boosted in courtroom, Mullins-Johnson's lawyers claim":


"Lawyers for William Mullins-Johnson claim in a factum filed in the Ontario Court of Appeal that Dr. Charles Smith's credibility as boosted not only by himself and other witnesses but by the prosecutor and the trial judge," the Blog began.

"Dr. Smith’s appearance at the trial undoubtedly made a powerful impression on the jury, and it was his opinion that enabled the jury to conclude that there was physical evidence of Valin’s murder having occurred while she was being sodomized," it continued.

Firstly, before Dr. Smith was called, the Crown asked Dr. (Bhubendra) Rasaiah (the pathologist who presided over Valin's autopsy: director of pathology at the General Hospital in Sault Ste. Marie) about him:

Q. And who is [Dr. Charles Smith]?

A. Doctor Charles Smith is the professor of pediatric pathology, and he’s a nationally known figure on forensic pathology.

Q. Okay Doctor, thank you.

During his presentation of his resume to the jury, Dr. Smith was asked:
Q. Sir, how many people do the specific type of work that you do?

A. At the hospital do you mean?

Q. At the hospital or perhaps throughout Canada.

A. Okay. At the hospital there are, there are three of us.

I do the majority of the work and if I’m not there someone has to stand in my place, so, I do that.

The pediatric forensic pathology unit is unique.

We are not aware or the Chief Coroner is not aware that there is in existence anywhere in North America such a unit.

So because of that I probably do a little bit more of this kind of work than anyone else in the country. (emphasis added)

In his closing, the Crown summarized Dr. Smith’s seemingly impeccable credentials:

You look at Doctor Smith. Who is Doctor Smith?

Well, you saw him on the stand.

Of all of them, I mean, you take a look at this guy’s curriculum vitae, that’s just a fancy way of saying all his qualifications, and you see what that fellow has done and you see the type of things that he’s dealt with, and he tells you over here that, you know, he deals now with pediatrics and Sick Children’s Hospital, and the types of cases he does and the number of it he does, and he does that exclusively dealing with children, and you see the type of qualifications he has but, how did he get involved?

He got involved because there’s a program called SCAN, Suspicious Child Abuse and Neglect.

And Rasaiah sends that down to him because he sees suspicious child abuse.

So he sends that down to that SCAN team, and they send it to somebody there and it’s a Doctor (Marcellina) Mian, and because the child is dead they call in Doctor Smith.

And that’s what he does, and that’s how he gets involved.

In the midst of giving his damning opinion about the recent injury to Valin’s rectum, Dr. Smith claimed that he was “trying to be a little conservative or a little cautious here.”

He made similar claims elsewhere in his testimony when, in fact, his opinion was far more radical than that of any of the other experts.

But appearances can be deceptive, and the Crown felt able to present him to the jury in his closing as a knowledgeable person, a down to earth person that was able to explain things and a person that knew and was pretty fair about answering questions...

The trial judge made comments during Dr. Smith’s evidence that made it clear that he had been impressed by Dr. Smith’s presentation.

Thus, in response to an objection by defence counsel to a question put by the Crown to Dr. Smith, the trial judge said:

THE COURT: I sense this witness exercising himself considerably to be objective and to be professional and I do not have any concern about the form of the question in the context of the evidence I have heard so far. But thank you, Mr. (TG) O’Hara (Mullins-Johnson's trial lawyer).

At the conclusion of Dr. Smith’s testimony, the trial judge said:

THE COURT: Doctor, I believe firmly in the adversarial system so I am not going to interfere with it except to say that I thank you for coming. I know you are busy, I know there were problems - -


It was unfortunate that Dr. Smith’s credibility was boosted in these ways..."

(End of portion from factum);

William Mullins-Johnson was wrongly convicted of first-degree murder and sentenced to life imprisonment for a sexual assault and murder which never occurred.

There are important lessons here for both judges and prosecutors.

Harold Levy; hlevy15@gmail.com;