Wrongful Convictions.pdf - Robson Hall Faculty of Law
Wrongful Convictions.pdf - Robson Hall Faculty of Law 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.
Wrongful Convictions 7A. The Morin InquiryThe modern assessment of the probative value of hair microscopyevidence, at least in Canada, starts with the Commission of Inquiry intothe Proceedings Involving Guy Paul Morin. 13On October 3, 1984, Christine Jessop, a nine-year old girl, wasmurdered. Suspicion fell on her next-door neighbour, Guy Paul Morin. Inshort order, he was charged with her murder.The case was entirely circumstantial. Amongst other things, theCrown relied on hair comparisons to demonstrate that there had beenphysical contact between Christine Jessop and the accused, and thatChristine had been transported in Morin’s car to her death. This evidencewas said to refute the accused’s denial that he had not had any contactwith Christine, and that she had never been in his car.When Christine’s body was discovered, a single dark hair was foundembedded in skin tissue adhering to her necklace. This hair was notChristine’s, and was presumed to have come from her killer. Onmicroscopic analysis, experts concluded that the hair could have originatedfrom Morin. Three hairs found in Morin’s car were likewise said to bedissimilar to the accused’s hairs; experts contended that they were similarto Christine’s hairs, and “could have” come from her.After multiple trials and appeals, Morin was acquitted on appeal in1995 on the basis of fresh DNA evidence tendered jointly by the Crownand the defence. Ontario called a public inquiry to find out what hadhappened and appointed the Honourable Fred Kaufman, a former judgeof the Quebec Court of Appeal, to preside over it. The hair comparisonevidence played a significant role in Commissioner Kaufman’s conclusionthat Morin had been wrongly convicted. He cited three central concerns.First: “[h]airs are not unique, and the assessment of the similarities,differences and importance of hair characteristics is highly subjective.” 14Hair microscopy cannot yield a conclusion that a particular person was thedonor of a hair. 1513Report of the Kaufman Commission on Proceedings Involving Guy Paul Morin, (Toronto:Queen’s Printer for Ontario, 1998) (The Honourable Fred Kaufman), online: [MorinReport].14Ibid at 88.15Ibid.
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<strong>Wrongful</strong> <strong>Convictions</strong> 7A. The Morin InquiryThe modern assessment <strong>of</strong> the probative value <strong>of</strong> hair microscopyevidence, at least in Canada, starts with the Commission <strong>of</strong> Inquiry intothe Proceedings Involving Guy Paul Morin. 13On October 3, 1984, Christine Jessop, a nine-year old girl, wasmurdered. Suspicion fell on her next-door neighbour, Guy Paul Morin. Inshort order, he was charged with her murder.The case was entirely circumstantial. Amongst other things, theCrown relied on hair comparisons to demonstrate that there had beenphysical contact between Christine Jessop and the accused, and thatChristine had been transported in Morin’s car to her death. This evidencewas said to refute the accused’s denial that he had not had any contactwith Christine, and that she had never been in his car.When Christine’s body was discovered, a single dark hair was foundembedded in skin tissue adhering to her necklace. This hair was notChristine’s, and was presumed to have come from her killer. Onmicroscopic analysis, experts concluded that the hair could have originatedfrom Morin. Three hairs found in Morin’s car were likewise said to bedissimilar to the accused’s hairs; experts contended that they were similarto Christine’s hairs, and “could have” come from her.After multiple trials and appeals, Morin was acquitted on appeal in1995 on the basis <strong>of</strong> fresh DNA evidence tendered jointly by the Crownand the defence. Ontario called a public inquiry to find out what hadhappened and appointed the Honourable Fred Kaufman, a former judge<strong>of</strong> the Quebec Court <strong>of</strong> Appeal, to preside over it. The hair comparisonevidence played a significant role in Commissioner Kaufman’s conclusionthat Morin had been wrongly convicted. He cited three central concerns.First: “[h]airs are not unique, and the assessment <strong>of</strong> the similarities,differences and importance <strong>of</strong> hair characteristics is highly subjective.” 14Hair microscopy cannot yield a conclusion that a particular person was thedonor <strong>of</strong> a hair. 1513Report <strong>of</strong> the Kaufman Commission on Proceedings Involving Guy Paul Morin, (Toronto:Queen’s Printer for Ontario, 1998) (The Honourable Fred Kaufman), online: [MorinReport].14Ibid at 88.15Ibid.
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