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| John L. Hill |
More recently, with advances in scientific research, the likelihood that DNA has been transferred has cast some doubt on the “gold standard” that DNA evidence has become. In Santa Clara County, Calif., a homeless man, Lukis Anderson, who had been detoxifying in hospital overnight was cleared of the murder of a wealthy investor despite the homeless man’s DNA being found under the fingernails of the deceased.
It turns out that paramedics had been using the same pulsometer on both the hospitalized man and the murder victim. The new research has led to attacks by defence counsel in attempting to explain the presence of DNA connecting their accused clients with serious crimes.
Such an attack was brought in the appeal of a case where a police raid led to the conviction of an Ottawa man for firearms possession and breach of a firearms prohibition (R. v. Bakal 2023 ONCA 177). Subheer Bakal was one of seven men found inside a townhouse that had been under surveillance for nine days as part of a drug investigation. On the early morning of Nov. 22, 2017, police obtained a search warrant and used dynamic entry to break into the dwelling. In the subsequent search, police found drugs, cash but of most importance to Bakal, police found a firearm containing Bakal’s DNA and a backpack containing Bakal’s government ID and ammunition that would fit the firearm found elsewhere in the house.
The trial judge found no evidence linking Bakal to the drugs or to the proceeds of crime but relied on DNA evidence to convict on the weapons charges. If it could be proven that DNA was transferred, it would raise a reasonable doubt. DNA transference became one of the major issues at trial and one of the most significant grounds for appeal.
The DNA evidence at trial was elicited from Melanie Richard, a forensic scientist qualified as an expert in DNA analysis and body fluid identification. She had analyzed the DNA from the gun and concluded that at least 70 per cent of the DNA on the handgun belonged to the appellant. But she added that a transfer from contact with clothing could not be ruled out, but this was unlikely unless the DNA had been transferred from contact with wet bodily fluids. The possibility of transfer from dry clothes is low, she perhaps mistakenly maintained.
The theory of the defence was that when the raid started, someone planted Bakal’s ID in the backpack, then ran upstairs and wiped the gun’s handle with dirty laundry to get rid of fingerprints of the true owner, thereby transferring Bakal’s DNA to the gun.
In the end, the trial judge rejected the explanation and imposed a sentence of three and a half years for gun possession and a consecutive term for breaching the firearms prohibition amounting to a global sentence of four years and 51 days.
Unfortunately, with the possibility of DNA transference now coming before the courts as a challenge to the forensic “gold standard,” this case did not turn on an analysis of the DNA testimony except that offered by the Crown witness. The Court of Appeal was left to assess the case based on the credibility and reliability of the witnesses at trial. The three-judge appeal panel agreed with the trial judge that the timing of when the raid began and when the occupants became aware of the police presence, the work needed to stash the ID and then wipe the prints from the gun could not be accomplished in such a short period. The defence witness testimony was rejected and the trial judge’s reasoning for rejecting it was in line with R. v. W. (D.), [1991] 1 S.C.R. 742 even though the trial judge made no reference to the case.
Even though DNA transference may be a plausible theory, the Appeal Court agreed that a trier of fact need not act on an inference that it considers unreasonable (R. v. B.(S.) 2018 ONCA 807). In the end, this was a case that turned on credibility and reliability and not a careful re-examination of the probative value of DNA evidence now that it is coming under scrutiny. The verdict and sentence were upheld.
Defence counsel are to be congratulated on bringing a novel idea to the court. In future, we can expect more such challenges.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at johnlornehill@hotmail.com.
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