Is the Smith Inquiry casting a shadow over this trial?

Tansi/Good Day Folks:

We're closely following this trial because depending on the ruling it could have a significant impact on your expectation of privacy when using the internet.

According to the Globe and Mail report, Ontario Superior Court Judge Robert Clark is moving cautiously before declaring Russ Doucet an expert witness (forensics and internet-use specialist).
You may recall the Ontario government last year ordered a public Coroner's Inquiry into the actions of Dr. Charles Smith. For 24 years he worked at Toronto's Hospital for Sick Children where he was long regarded as one of Canada's best forensic child pathologists.

Dr. Charles Smith

After reviewing 45 cases in which Dr. Smith had concluded the cause of death was either homicide or criminally suspicious, the Coroner's Review ruled a finding of foul play was questionable in 20 instances 13 of which had subsequently resulted in criminal convictions. Several people have been released from jail only one still remains behind bars.

The Inquiry found there was no specific training associated with being designated a child pathologist. Further, a system of checks and balances was lacking to prevent these kinds of errors. No doubt the situation was further exacerbated by Dr. Smith's disorganized work habits.

Judges give a lot of credence to expert witnesses which is probably why Judge Clark is moving carefully before designating Mr. Doucet as such.

Sincerely,
Clare L. Pieuk
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Proposed Expert In Child-Porn Case Admits His Résumé Had Mistakes
Christie Blatchford
The Globe and Mail
April 11, 2008
Page 7
cblatchford@globeandmail.com

TORONTO — A proposed defence expert witness in a child pornography case yesterday admitted to "a substantial misstatement" of his qualifications on a résumé presented to court.

Russ Doucet, who has worked in a variety of capacities in the computer and information technology fields for 15 years, was being questioned about his purported expertise by Crown prosecutor Allison Dellandrea at the trial of Toronto actor Robert Smith, who is pleading not guilty to charges of possessing child pornography and making it available online.

Robert Smith

Ms. Dellandrea told Ontario Superior Court Judge Robert Clark that because of the errors, which Mr. Doucet said he made inadvertently and for which he apologized, the whole of his proposed testimony should be "viewed with suspicion" such that he shouldn't be allowed to give the opinion evidence only experts can offer.

Mr. Doucet agreed that the language in the first version of his curriculum vitae appeared to say he had worked "with" police in certain cases; a later version, revised only after Ms. Dellandrea told his lawyer she was contesting his qualifications, added the words "in the capacity of defence expert."

The document also said he was qualified as an expert by a court in one case, when he wasn't; the later version replaced that court case with another.

Mr. Doucet acknowledged the mistakes, said he was "chagrined to realize" he had been misleading, but then curiously described a C.V. as "a living document."

He is being offered as a computer forensics and Internet-use specialist by Mr. Smith's lawyer, Cindy Wasser, who is challenging the validity of two search warrants executed by Toronto police in their investigation of her client.

Police first obtained a warrant to get from Bell Canada: Mr. Smith's Internet service provider or ISP, his name and address; two months later, officers executed a second warrant at his north Toronto home and shortly afterwards, in February of 2006, he was arrested.

If allowed to testify, Mr. Doucet would suggest that the officers swearing the first warrant allegedly misled the justice of the peace by not telling him there was a possible "innocent" explanation for the many images of child sexual abuse discovered on Mr. Smith's computer.

Mr. Doucet said yesterday that such images sometimes are innocently retrieved by users searching the Web with even innocuous keywords, and that users "frequently" install software in such a hurry they take shortcuts and may not even look at the content of the files.

At the time of Mr. Smith's arrest, police alleged they found on the computer more than 1,000 electronic files, including movies and pictures, of children as young as a year engaged in sexual activity.

Many of these files were allegedly also saved on computer discs, an issue that would not appear to be covered by Mr. Doucet's accidental download theory.

If the Bell warrant were deemed by the judge to violate Mr. Smith's Charter right against unreasonable search and seizure and to be invalid, the later one, which was based in part on the so-called subscriber information gleaned from it, would also be tossed.

Mr. Doucet was allowed to testify about his credentials because Judge Clark ruled "provisionally" that Mr. Smith has legal standing to challenge the Bell warrant so he could hear arguments from the lawyers. Because this is a judge-alone trial, not being held before a jury, the voir dire hearing can be reported.

Judge Clark said several times yesterday that he was "startled" or "troubled" by some of Mr. Doucet's answers, and that the misleading first version of his C.V. "at the very least shows a very cavalier attitude ... it's a bit disturbing even if there was no intent to deceive."

Ms. Wasser, however, argued that "there wasn't an attempt to hide it [the misleading résumé] but to fix it ... it shouldn't have any effect on whether he has specific knowledge in this area."

The judge will rule on whether Mr. Doucet can testify as an expert and, if so, if he will impose limits upon his evidence, today.