GAITKEEPING IN CANADA: MIS-STEPS IN ASSESSING THE RELIABILITY OF EXPERT TESTIMONY

Abstract

Incriminating expert testimony is a leading cause of wrongful convictions. Academic commentators and authoritative scientific research bodies agree that forensic comparison techniques such as fingerprint identification, toolmark comparison and bite mark analysis should be subjected to validation studies and experts subjected to proficiency testing prior to expert evidence being admitted in criminal trials. Canadian case law on the admissibility of expert testimony increasingly emphasizes demonstrable reliability as a condition of admission. In this article, we critically assess the BC courts’ approach to reliability in R v Aitken. In R v Aitken, “forensic gait analysis” was offered for the first time in a Canadian courtroom. We suggest that the growing judicial attention to reliability is heartening, but that Canadian judges and lawyers have not yet developed the tools necessary to conduct a sound assessment of the reliability of incriminating expert testimony. The authors draw on authoritative research and policy reports to offer suggestions about how to improve the Canadian judicial approach to assessing reliability.