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Canadian DNA Jurisprudence and Changing Forensic Practice 135
commonly used techniques and assumptions in DNA testing in the early 1990s. 133
While Campbell J clearly felt that many of the objections raised in that report
were relevant, he held that: “The NRC report does not detract from the
admissibility of Ms. Newell’s [the forensic DNA examiner] evidence, however
strongly it may go as to the weight of the number she would propose to use.” 134
The Ontario Court of Appeal decision of 1998 supported the decision of
Campbell J at trial and dismissed the accused’s appeal. Two major grounds of
appeal concerned the admissibility of the DNA evidence. In the first, the
appellant argued that the test and the courtroom procedure used by the trial judge
in finding the DNA evidence admissible were incompatible with the rules for the
admission of novel expert testimony as developed in Mohan. The second ground
of appeal related to the DNA evidence was that the jury instructions were
inappropriate. 135
On the question of admissibility, the case of R v Mohan had been decided in
1994, after the trial decision in this case but before the appeal. 136 Mohan
established a four-part test to determine the admissibility of novel scientific
testimony: relevance, necessity in assisting the trier of fact, the absence of an
exclusionary rule, and a properly qualified expert. 137
In contesting the admissibility decision made by the trial judge the appellant
argued that a voir dire was required and that the threshold for admissibility used by
Campbell J was incompatible with Mohan. 138 As seen in the discussion of the trial
judgment, the defence conceded the basic validity of DNA technology and the
attack was not on the process used by the Centre for Forensic Sciences. Rather it
was on the ability of the Centre to properly determine the likelihood of a random
match. 139 Specifically, the appellant attacked the sufficiency of Ms. Newall’s
credentials in this specific area as revealed from her cross-examination; her
reliance upon hearsay reports and the results of tests performed by others; and the
trial judge’s failure to make findings as to her credibility and the weight to be
given to her evidence. 140
On the question of Ms. Newall’s credentials, Justice Finlayson declined to
pre-empt the trial judge and reassess the reliability of her evidence. 141 As to point
(b) Justice Finlayson found “abundant authority for the proposition that an expert
can rely on hearsay reports and tests within the scope of his or her expertise.” 142
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Supra note 131 at paras 36-37.
Ibid at para 38.
Supra note 126 at para 94.
Ibid at para 16.
Supra note 54 at 11, as cited supra note 126 at para 20.
Supra note 126 at paras 13 & 19.
Ibid at para 30.
Ibid at para 31.
Ibid at para 36.
Ibid at para 32.