In their final day of testimony, a panel of three experts warned that the potential for wrongful convictions will not recede until the defence bar has equal access to forensic pathology expertise.
They described a double disadvantage for the defence: a worldwide shortage of forensic pathologists, and the reality that most of them work for coroners or within the hospital system.
"When you work with the Crown all the time and you are contacted by the defence, what is your reaction?" said forensic pathologist John Butt. "I think it is common to think: 'I work for the government - maybe I had better check this out with the Crown.' "
Dr. Butt compared it to the phenomenon of libel chill, where journalists are afraid to tackle contentious stories for fear of being sued. He said pathologists shy away from testifying for the defence lest their credibility be disparaged by prosecutors and their expert witnesses.
"Defence experts are reluctant to come forward as their reputation may be attacked by the government," he told Criminal Lawyers Association lawyer Jeff Manishen. "The comments will be not just about [their] opinions, but their reputation."
Mr. Manishen remarked that only one or two retired government pathologists in Ontario are willing and able to testify effectively for the defence.
He said that defence lawyers have no choice but to comb other provinces in the hope of retaining one of a handful of available experts.
The other two members of the panel - British forensic pathologists Christopher Milroy and Jack Crane - agreed that the dice are loaded against the defence bar. "I believe the defence has a right to equality of arms in our adversarial system," Dr. Milroy said.
Forensic pathologists conduct autopsies in suspicious deaths on behalf of coroners. Their findings about cause of death and evidence of foul play are a crucial part of any investigation.
Over two weeks of public hearings by the commission, the coroner system has been unmasked as one of the frailest links in Ontario's justice system.
Louis Sokolov, a lawyer for the Association in Defence of the Wrongly Convicted, said yesterday that the situation is just as bleak for defence lawyers whose clients have been convicted. The Office of the Chief Coroner of Ontario refuses to provide experts to review autopsy results in suspected wrongful convictions, he said.
The panel of experts agreed with Mr. Sokolov that this is a serious obstacle for lawyers who believe a client has been wrongly convicted.
Dr. Milroy told Mr. Justice Stephen Goudge that "dabblers" with no training in forensic pathology - such as disgraced pathologist Charles Smith - are all too common.
