Looks like today is going to much like yesterday. A lot of legal arguments. IMO it's centering around the Eliminator. Pillay was very quick to object yesterday when Cook made the observation that it looked that it had been used more than once. I'm wondering, if the Crown can get that into evidence here, that it can be used in a later trial.
The problem with that statement is that the witness is offering (unasked) a personal opinion, not a statement of provable fact. He was not, AFAIK, called as an "expert witness" (and some of the discussions in the voir dire may relate to qualifications of expert witnesses, or evidence being offered that certain witnesses are expert - but this is usually settled in advance. Perhaps not with a direct indictment, I don't know).
Very recently the Supreme Court made a ruling on exactly the sort of statement Mr. Cook made.
You can find a learned discussion of the issue here:
http://www.thecourt.ca/2014/03/03/e...officers-and-the-curative-proviso-r-v-sekhon/
But the gist is, an opinion, even though based on the witness' own experience, is not evidence of the facts in the case before the court. It has no probative value. It can be very misleading (in either direction -- for the Crown
or for the accused), but since it is not evidence it should not be admitted.
In the worst case scenario, ignoring the rules of evidence, minor though they may seem, can lead to a mistrial, certainly give grounds for an appeal (which can be very expensive and further delay justice, whether it's justice for an innocent accused or justice for the victims of a serious crime).
If you read through all the minutiae, you will see that in the case in question, the SCC upheld the original verdict in spite of this questionable ""evidence" which the trial judge allowed, but should not have allowed. When the Crown has a strong case and plenty of supporting evidence, properly obtained and presented,
they do not need to bend the rules or break them in order to get a conviction.
In an adversarial system however, which is what we have, it is the
duty of the defense (in this instance, of the Crown if the role is reversed where the questionable statement is concerned) to hold the opposition's feet to the fire and insist on proper legal procedures. Whichever side does this, they are doing us, the public, and the justice system, a favour by ensuring the rules of fair trial procedures are followed.
Yes, it's frustrating for us, who are anxious to see what comes next, but the alternative: sloppy evidence introduction, witness testimony going unchallenged when it is off-limits, judge ruling on gut instinct rather than the law, either side letting the other off the hook, etc. etc., all leading to mistrials and having to go through it all over again - is far worse.
I personally am very impressed with the professional, thorough and proper conduct of the case from all parties in the face of a very difficult (emotionally and tactically) challenge. We can be proud that we have a justice system that is far more judicious in every sense than what we see south of the border, though as the Goudge inquiry found very recently (see
http://www.attorneygeneral.jus.gov.on.ca/inquiries/goudge/report/index.html) we still have some
egregious miscarriages of justice and must seek to avoid them by learning from them and applying remedies.
Followers of some of the more horrific examples of mismanagement in the past can see, in this case, how far we have come. The cooperation of the various police forces shows planned improvements based on Justice Galligan's recommendations after the Bernardo fiasco; the careful forensic work shows how far we have come since contaminated and even faslified evidence was allowed, unquestioned, to convict an innocent man (Guy Paul Morin. Full report here:
https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/morin/morin_ch1.pdf), a news article with relevant summary here:
http://www.cbc.ca/news/canada/morin-inquiry-slams-investigation-1.161599
This article on the 30th anniversary of the murder of little Christine Jessop itemizes ten things we have learned from that case (and many apply to the Truscott case as well). We can see that learning applied in real life in the investigation, prosecution and yes the defense, in the Bosma case as well.
http://www.thestar.com/news/gta/201...0_things_that_were_learned_from_the_case.html
