Updated: Sep 27, 2022
There are serious problems in forensic science in both Canada and the United States. We need a full public review of forensic science in Canada as it applies to both Adult Criminal Court and Youth Court. The review should be similar to the one done by the Committee on Identifying the Needs of the Forensic Sciences Community, National Research Council in the United States: Strengthening Forensic Science in the United States: A Path Forward.
The findings of the National Research Council in the United States, respecting forensic science generally, were remarkably similar to those respecting hair analysis made by the Motherisk Inquiry Report.
The U.S. National Research Council found that in an assortment of forensic science disciplines, there are problems with a lack of enforceable standards, a need for promotion of best practices, and consistency in the application of best practices. Reliability of forensic science opinions requires all of these. The Council therefore attempted to chart an agenda for progress.
The need for such an agenda was apparent because notwithstanding the wonders of modern forensic science (at p. 4):
"in some cases, substantive information and testimony based on faulty forensic science analyses may have contributed to wrongful convictions of innocent people. This fact has demonstrated the potential danger of giving undue weight to evidence and testimony derived from imperfect testing and analysis. Moreover, imprecise or exaggerated expert testimony has sometimes contributed to the admission of erroneous or misleading evidence."
One of the big problems identified by the Council related to mandatory standardization, accreditation, and certification (at p. 6):
"The fragmentation problem is compounded because operational principles and procedures for many forensic science disciplines are not standardized or embraced, either between or within jurisdictions. There is no uniformity in the certification of forensic practitioners, or in the accreditation of crime laboratories. Indeed, most jurisdictions do not require forensic
practitioners to be certified, and most forensic science disciplines have no
mandatory certification programs. Moreover, accreditation of crime laboratories is not required in most jurisdictions. Often there are no standard protocols governing forensic practice in a given discipline. And, even when protocols are in place (e.g., SWG standards), they often are vague and not enforced in any meaningful way."
In Ontario Youth Court and adult criminal Courts, I often hear police officers say during cross-examination "Yes, it may say that in my training materials, but that is only a recommendation, I'm not required by any law to do it that way. I do it another way. My police service doesn't keep that kind of record - we do it another way."
In Ontario Youth Court and adult criminal Courts, I hear Crown experts employed by the CFS say "The Centre of Forensic Sciences recommends xyz but it is not our role to provide supervision of the police. We don't do that." Sometimes they say "There is no mandatory accreditation required for xyz."
In Ontario, as in the rest of Canada and the United States, we have a problem with a lack of clear standards and oversight (at p. 6):
"the quality of forensic practice in most disciplines varies greatly because of the absence of adequate training and continuing education, rigorous mandatory certification and accreditation programs, adherence to robust performance standards, and effective oversight. These shortcomings obviously pose a continuing and serious threat to the quality and credibility of forensic science practice."
In the United States there is a rule about judges controlling the reliability of scientific evidence. The Council describes the rule at pages 9 and 10:
"In 1993, in Daubert v. Merrell Dow Pharmaceuticals, Inc. the [US] Supreme Court ruled that, under Rule 702 of the Federal Rules of Evidence (which covers both civil trials and criminal prosecutions in the federal courts), a “trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” The Court indicated that the subject of an expert’s testimony should be scientific knowledge, so that “evidentiary reliability will be based upon scientific validity.”11 The Court also emphasized that, in considering the admissibility of evidence, a trial judge should focus “solely” on the expert’s “principles and methodology,” and “not on the conclusions that they generate.”12 In sum, Daubert’s requirement that an expert’s testimony pertain to “scientific knowledge” established a standard of “evidentiary reliability.”
So how do we solve this problem? To start with we need to identify which labs and which police services in Canada are undertaking which forensic disciplines. The individual labs and individual police service sections need to be accredited for the particular disciplines they practice. Accreditation needs to be mandatory. Consider the following accreditation by Boston Police for latent prints:
Do Ontario police services that provide similar forensic analysis for use in Youth Court and adult criminal Court have this type of accreditation? What are the standards that they follow? Most importantly, do they comply with international standards such as ISO 17025? Why isn't such accreditation mandatory if the analysis is being done for forensic purposes?
Whenever a lab is being newly accredited they are audited pursuant to an international standard - note ISO 17025 referred to above and in the Motherisk Inquiry Report. Isn't it about time that police labs in your jurisdiction received such an audit?