Wrongful Convictions.pdf - Robson Hall Faculty of Law

6 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1placed considerable emphasis on hair microscopy. The RCMP alonemaintained a staff of approximately 35 hair examiners across Canada. 9 Butit was just a tool: hair comparisons were simply intended to provide a“class association”; that is, as the National Research Council of theNational Academies put it in 2009:a conclusion of a “match” means only that the hair could have come from anyperson whose hair exhibited—within some levels of measurement uncertainties—the same microscopic characteristics, but it cannot uniquely identify one person.However, this information might be sufficiently useful to “narrow the pool” byexcluding certain persons as sources of the hair. 10So it was fundamentally an investigative tool intended to “narrow thepool” of suspects. Despite this, prosecution services sometimes used theresults of the comparison as evidence in criminal prosecutions. Hairmicroscopy faded from prominence during the early to mid-1990s (at leaston the court side) with the advent of DNA technology.For reasons I will now examine, hair microscopy probably yieldednothing more than an educated guess. 11 Its probative value was slight, theprejudicial effect on the conduct of the trial was significant, and its useought to have been confined to investigations and not extended into thecourtroom. 129Report of the Commission of Inquiry Into Certain Aspects of the Trial and Conviction of JamesDriskell, (Winnipeg: Government of Manitoba, 2007) (The Honourable Patrick JLesage, QC), at 174, online: [Driskell Report].10NRC, supra note 6 at 156.11To adopt the phrase used consistently (albeit in a different context) in the followingappellate decisions: R v Ranger (2003), 67 OR (3d) 1 at para 82, 178 CCC (3d) 375(CA); R v Clark (2004), 69 OR (3d) 321 at para 78-79, 182 CCC (3d) (CA); R vKlymchuk (2005), 203 CCC (3d) 341 at paras 33-37 (available on WL Can) (Ont CA)[Klymchuk].12Even if the test for admissibility of expert evidence is met, a trial judge may reject theproffered evidence if its prejudicial effect on the conduct of the trial outweighs itsprobative value: R v DD, 2000 SCC 43 at para 11, [2000] 2 SCR 275. I will turn tothis later on in this section, but the Ontario Court of Appeal has powerfully observedthat items of evidence amounting to nothing more than an ‘educated guess’ “… canplay a valuable role in the investigation of crime by directing the police to fruitfulareas of investigation. They cannot, however, be admitted as evidence under the guiseof expert opinion”: Klymchuk, supra note 11 at para 37.