Nathan BoulangerIn 1998, Joyce Rita Hayman was convicted of criminal negligence and administration of a noxious substance, based on an analysis of her child's hair and "> Nathan BoulangerIn 1998, Joyce Rita Hayman was convicted of criminal negligence and administration of a noxious substance, based on an analysis of her child's hair and ">

Relentless pursuit of justice through science

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Nathan Boulanger

In 1998, Joyce Rita Hayman was convicted of criminal negligence and administration of a noxious substance, based on an analysis of her child’s hair and urine suggesting that the child had been exposed to the cocaine. The analysis was presented via expert evidence from the Motherisk Drug Testing Lab. Two reports, from the Ministry of the Attorney General (MPG) in 2015 and 2018, showed serious problems with the tests performed and used both in criminal prosecutions and in family or child protection cases.

In R. c. Hayman 2021 ONCA 242, the Ontario Court of Appeal dealt with Hayman’s convictions and admitted MAG’s reports regarding concerns about such testing. Crown counsel acknowledged the problems raised by using Motherisk experts. Acquittals have been recorded and Hayman can begin to deal with the trauma that the criminal justice system has sadly inflicted on him. As the Court of Appeal concluded, “She deserves, as she puts it, to hold her head up for the first time in a long time. “

This case underscores the importance of recognizing that as good as the Canadian criminal justice system is, it is far from perfect. Cases involving a wrongful conviction are of greatest concern to the criminal justice system. Second US President John Adams said, “It is more important that innocence be protected than that guilt be punished, because guilt and crime are so common in this world that not all of them can be punished. But if innocence itself is brought to the bar and condemned, perhaps to death, then the citizen will say: “Whether I do good or that I do evil does not matter, for the innocence itself is no protection. injustice.

The certainty and finality of the closure of a criminal case, including the conviction, is important. It can give an outcome to the victims and the accused. However, the ability to review cases, even long after the case is over, is important and necessary in cases like Hayman’s. When new evidence undermines the basis for a conviction, the matter must be reconsidered, even years later. Public confidence in the administration of justice and the rule of law demands no less.

The development of new technologies and their application to criminal cases is an ongoing process. the AI Case Study: DNA Tools for Probabilistic Genotyping in Canadian Criminal Courts (Law Commission of Ontario, June 2021) examines new algorithmic decision-making technology that is likely to become more common in the coming years. Current DNA technology, called Random Match Probability, compares DNA samples found against DNA profiles, and then reports the probability of a random match. This technology is a very reliable “gold standard” when used correctly. However, in cases where traces of DNA or mixed DNA samples are found, this can be difficult.

Probabilistic genotyping uses a computer program to use a statistical method and mathematical algorithms to reduce a group of suspects. The design of these programs is to try to determine which possible hypotheses may be more likely. However, they compare the assumptions and determine the probability rather than the facts. The difficulty is that this may not include possibilities that are not foreseen by the programmers. Criminal law deals with atypical situations, so it will be important to be creative enough to determine alternative scenarios.

It will be important to educate the trier of fact when different technologies are used, including the strengths and weaknesses of these technologies and how they differ from other similar technologies. The dangers of relying on scientific analyzes without a good understanding of their rationale are dangerous. Science should be used in criminal cases, but not without appropriate ongoing challenge and reanalysis. What disproves science is the best science, but science keeps seeing itself again, and neither can science courts.

A final interesting point in the Hayman case concerns the issue of publication bans. At the start of the appeal, a publication ban was imposed on Hayman’s name as well as his child. However, with the acquittals recorded, Hayman demanded that the publication ban be lifted. The Court of Appeal agreed to state “in light of the unjustified nature of the conviction in this case, based on what can only be described as flawed science, the least that can be done is to allow the ‘calling for the dignity of having this matter corrected now in the media if they choose to talk about it. Publication bans exist to protect certain participants in the criminal justice system. However, courts should not lose sight of who these prohibitions are meant to protect. Courts should listen to those affected by the bans and be sensitive to their interests. Publication bans should protect.

Nathan Baker is a criminal defense lawyer in Peterborough, Ont., And practices alone at Nathan Baker Law. He is particularly interested in impaired driving cases, particularly those involving drug-impaired driving and impaired navigation. Send him an e-mail at

Photo credit / Turac Novruzova

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