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Canadian DNA Jurisprudence and Changing Forensic Practice 127
laboratory procedure and even fraud are as possible with forensic DNA testing as
with any other form of forensic evidence. 81 There is also the potential for
prosecutorial interference. 82
V.
EARLY FORENSIC DNA IN CANADIAN COURTS
Canadian courts have shown interest in all three questions Thompson
identified. Stated slightly differently from the way he presented them, three issues
stand out in the review of the Canadian DNA evidence cases that follows. The
first is a concern with the subpopulation problem, one that may be particularly
acute when potential suspects are part of a small relatively homogenous
population, such as among Canada’s Native people. The second is a concern over
how juries will respond to the complexities of evaluating DNA evidence. Third,
Canadian courts have shown some interest in laboratory standards and
procedures. The focus will be on the first two, since they show more general
methodological concerns that are applicable to techniques other than forensic
DNA itself. In their handling of these issues, Canadian courts encountered
difficulties that were never fully resolved. It is these difficulties that may hinder
the use of a DNA-derived methodology in other forensic sciences in Canada.
This section is a study of the early cases concerning the use of DNA evidence
in Canada. As we will see, this history shows that the adoption of DNA was not a
smooth one and that some of the decisions made, although ultimately reasonable
given the extraordinary quality of forensic DNA as a technique, should be seen as
highly problematic. Canadian courts have had a series of difficulties in addressing
the requirements of using forensic DNA evidence and it is in the causes of these
difficulties that one finds hints as to the future of post-NAS Report forensic
science.
One of the earliest Canadian cases to discuss DNA evidence was R v Parent, 83
a multiple sexual assault trial in Edmonton. In this case, both the defence and
prosecution accepted the admissibility of forensic DNA evidence that was
presented by the defence as exculpatory. The DNA evidence excluded the accused
in four out of the eleven counts with which he was charged and helped to
establish a reasonable doubt over several of the other charges because of the
Crown’s reliance on similar fact evidence. 84 The accused was ultimately convicted
on only one count for which he admitted guilt.
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See Harmon, supra note 71, and Thompson, supra notes 76 and 77, for examples of fraud in
DNA laboratories.
See Peter J Neufeld, “Have You No Sense of Decency” (1993) 84:1 Journal of Law and
Criminology 189 for examples of prosecutorial interference with forensic DNA procedure.
R v Parent, [1988] 91 AR 307, 46 CCC (3d) 414.
Ibid.