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

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.