Report of the Kaufman Commission on Proceedings Involving Guy Paul Morin:
The Honourable Fred Kaufman CM QC 31 March 1998

[This version of the report has been edited by Dr Robert N Moles
Underlining where it occurs is for editorial emphasis]

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Forensic Evidence and the Centre of Forensic Sciences

Introduction

At both of M’s trials, the prosecution placed substantial reliance on hair and fibre evidence tendered through forensic scientists who were (or had been) employed by the CFS in Toronto. At the 2nd trial the prosecution regarded the hair and fibre evidence as some of the most significant evidence incriminating M. I am satisfied that the hair and fibre evidence collected from the body site, from M, and from his car and home was, essentially, valueless. Properly understood, it had little or no probative value in demonstrating M’s guilt. Evidence only revealed at this Inquiry demonstrated that the fibre evidence was contaminated while in the possession of the CFS, suggesting that any findings relating to the fibre evidence may well have been tainted from the outset.

There is no doubt that the hair and fibre evidence was crucial to the decision to arrest M; its presentation to the jury at the 2nd trial undoubtedly contributed to M’s wrongful conviction.

The Centre and its Scientists

The CFS is the principal laboratory where forensic examinations are conducted for criminal investigations. It is a publicly funded institution, accountable to the Ministry of the Solicitor General. On a day-to-day basis, it is run by a Director. The laboratory is divided into 5 sections: biology, chemistry, firearms, toxicology, documents and photography. Each section is administered by a section head and by an assistant section head. The biology section is of particular interest to this Inquiry, since it conducts, amongst other things, hair and fibre, serology and DNA testing.

Two forensic examiners, Stephanie Nyznyk and Norman Erickson, gave hair and fibre evidence at the instance of the prosecution in M’s criminal proceedings. Nyznyk was a forensic biologist, specializing in hair and fibre analysis. She joined the Centre as a trainee in 1979. She was largely trained in-house, and within 2 years, was accepted as a fully qualified analyst, responsible for her own files, with a caseload of 60 to 80 files per year. In January 1986, she testified for the prosecution at M’s 1st trial. Shortly after, she was in a serious car accident and ended full time employment with the CFS that year.

Prior to the 2nd trial, Norman Erickson, then head of the biology section and himself a hair and fibre analyst for many years, was asked by the prosecution to review Nyznyk’s findings and to conduct further examinations of the relevant hairs and fibres. It was feared that, because of her injuries, Nyznyk might not be physically able to testify at the 2nd trial. As it turned out, both Nyznyk and Erickson were tendered by the prosecution as expert witnesses in 1992. By then, Nyznyk had not worked as a forensic analyst for some time. She admitted that she had not re-examined the relevant fibres since 1986, and had spent about 1 hour re-examining the relevant hairs. Some of her original notes were missing, as were a number of slides containing original evidence.

At trial, the prosecution relied on the hair and fibre findings made by Nyznyk and Erickson to demonstrate that there was physical contact between CJ and M, and that CJ was transported in the Morin Honda to her death by M. The evidence was said to refute M’s denial that he had any physical contact with Christine and his specific assertion that CJ had never been in the Honda.

Definitions

To facilitate an understanding of the summary of evidence which follows, it is necessary to briefly define some of the terms used. These are not technical definitions, but those which I have derived from the substance of the evidence before me.

Hair and fibre evidence is a form of trace evidence. It is called trace evidence because it deals with often microscopic items found on a person or object. These items are compared for similarities or differences.

Hair evidence refers to comparisons between human or animal hairs. Hairs can either be shed or pulled out, and thereby transferred or deposited elsewhere.

Fibre evidence refers to comparisons between fibres of synthetic or animal origin. Such fibres may be components of clothing, furniture, carpeting and so on. Like hairs, they can either be shed or pulled out, and thereby transferred or deposited elsewhere.

Primary transfer refers to the transfer of hairs or fibres from 1 object to another through direct contact - for example, where a person’s sweater rubs against a bus seat and deposits fibres upon it.

Secondary transfer refers to the transfer of hairs and fibres from 1 object to another, not through direct contact — for example, where fibres from a person’s sweater are 1st deposited directly on a bus seat, and later transferred to the clothing of another person who subsequently sits on that seat. The transfer of fibres thus occurred from the 1st person to the 2nd person without any contact between them. Of course, the transfer can be further removed, involving a number of intermediary steps.

Contamination refers to the presence of foreign items (including hairs and fibres) on trace evidence, which were deposited onto or alongside that evidence during the collection, examination or storage of the evidence. For example, conclusions may be drawn from the similarity of fibres found at a body site and on an accused’s clothing to prove his or her presence at the site. If some or all of the fibres compared were, in reality, deposited by investigators or scientists, the comparisons are meaningless. Contamination must not be confused with environmental contamination, which may explain why similar fibres are found on 2 different people or objects without direct contact between them. For example, 2 people may share the same environment (through adjoining properties or a common office or courtroom), within which fibres are transferred and deposited.

Extraneous fibres are fibres which do not form part of the make-up of a particular garment or other object. They are, rather, fibres which have been transferred to the garment, and are adhering to or are embedded in it.

Unknown hairs or fibres are hairs or fibres whose source, or place of origin, is unknown. They are normally compared to known (or source) hairs or fibres, the sources of which are known. It is significant to note that, where 1 extraneous fibre is compared to another extraneous fibre, there is no known source for the fibres. This may affect the strength of the conclusions which can be drawn from the comparison.

Taping and vacuuming represent 2 ways in which hairs, fibres and other items may be collected from an object or site.

Taping involves the application of adhesive tape to a surface in order to capture any hairs or fibres adhering to or embedded in the surface. The sticky underside of the tape attracts hairs, fibres and other items, often of microscopic size. This sticky underside is then stuck to 1 side of an acetate sheet, which is folded over the non-sticky outer surface of the taping to make a folder. The acetate sheet is later opened for the purpose of examining the taping attached to it. The taping is screened for hairs and fibres of interest. Once located, they are either marked for future removal or removed immediately. A scientist can access a desired fibre by either lifting up a part of the taping off the acetate sheet, or by making a V-shaped cut through the top of the taping or through the bottom of the acetate. The desired fibre is then pulled off the exposed underside of the taping with tweezers. A small amount of solvent is applied when needed to loosen the adhesive. The fibre is then mounted on a glass slide which has a substance on it (‘perma-mount’) to ensure that it stays on the slide. The slide is then covered with a cover slip.

Vacuuming involves the use of a vacuum cleaner to collect items (including hairs and fibres) lying on or embedded in a surface. The collected items are stored in a vacuum bag.

How Hair and Fibre Comparisons are Made

Hair comparisons are conducted both on a macroscopic level, (i.e. by the naked eye) and on a microscopic level. A number of hair characteristics are regarded as noteworthy — for example, the hair’s internal structure: how the pigment is distributed, whether the hair has a medulla (a central channel), and the type of medulla that is present.

Fibre comparisons may be effected through various kinds of examinations. For example, fibres may be compared simultaneously through a comparison microscope, or through microspectrophotometry (“MSP”), a process which measures the amount of light absorbed by the fibres. Both of these techniques were used on the Morin-related fibres.

Another means of fibre comparison is Thin Layer Chromatography (“TLC”). This is a process which allows the examiner to compare the dyes used to colour the various fibres. This process was not performed on fibres in the Morin case.

Inclusionary and Exclusionary Conclusions

The evidence is clear that hair comparisons can yield exclusionary results - that is, it is possible to definitively exclude someone as the donor of an unknown hair. To give the most obvious example: a blond-haired person can be excluded as the donor of a dark brown hair. A hair comparison which excludes someone as the donor of an unknown hair is an important investigative tool and can be of great evidentiary significance at trial.

The difficult issue arises where hair comparisons are used for inclusionary purposes — that is, to permit an inference that a person (usually the accused) was the donor of an unknown hair. The evidence is clear that hair comparisons cannot yield a conclusion that a person was definitely the donor of an unknown hair.   The characteristics of a person’s hairs vary from hair to hair, and they may differ even within a single hair on a person’s body. Hair comparisons are not akin to fingerprint comparisons. Hairs are not unique, and the assessment of the similarities, differences and importance of hair characteristics is highly subjective. Efforts to quantify, through statistical analysis, the probability that a person was the donor of an unknown hair are not generally accepted in the forensic community - in my view, with good reason.

Fibre comparisons raise similar, though not identical, issues.

The forensic scientists who testified at the Inquiry outlined the different expressions used to describe the strength of hair and fibre comparisons, introduced for their inclusionary value. Nyznyk testified that the strongest conclusion that can be drawn is that a hair or fibre is consistent with having come from a particular source. The 2nd strongest conclusion is that a hair or fibre could have come from a particular source. Either conclusion does not exclude the possibility that the hair or fibre came from a different source.

Another conclusion which is sometimes drawn is that a hair or fibre cannot be excluded as having come from the same source. Some regard this as a weaker conclusion than ‘could have come from’; others use the 2 phrases synonymously. Still others use ‘consistent with’ and ‘could have come from’ synonymously. Some scientists use the term ‘match’ to describe similar fibres or hairs; others avoid this term.

In summary, scientists (within and outside the CFS) express the same conclusions in different terms; sometimes they express different conclusions using the same terms. Some of the terms, even if used uniformly, are potentially misleading. The term ‘match,’ for instance, overstates the connection between similar hairs or fibres. The term ‘consistent with’ is interpreted by some to imply perfect or near identity of 2 items. The distinctions drawn by scientists are sometimes subtle and always important. However, due to the uneven use of language, as well as the inherent complexity of the subject matter, the scientists’ findings (and their limitations) are easily miscommunicated and / or misapprehended by non-scientists. Both the miscommunication and misapprehension of scientific findings contributed to M’s wrongful arrest and prosecution.

An Overview of the Hair Comparisons in Morin

The Necklace Hair

When CJ’s body was discovered, a single dark hair was found embedded in skin tissue adhering to her necklace. This came to be known as the ‘necklace hair.’ This hair was not CJ’s and it was presumed to have come from her killer.

After M became a suspect, hair samples were obtained from him. Nyznyk testified at the 2nd trial that the necklace hair was similar to M’s hair samples and could have originated from him. She was unable to state that the hair was ‘consistent with’ having come from M because she could not make a full comparison: the root end of the necklace hair had atrophied and the bulb of the root had decomposed. As such, she was unable to make a root comparison. She was also unable to compare the tips of the different hairs. The necklace hair was 6 months old by the time of her analysis, and M’s hairs would have changed to some unknown extent over that period of time as they grew or were cut.

Erickson agreed with Nyznyk that the necklace hair was a ‘could have’ situation. In a letter to Mr. Scott, dated March 28, 1990, he wrote as follows:
“It should be stressed that in order to have a complete and meaningful hair ‘match’, the following elements are normally required. 1. The unknown hairs should be complete hairs with roots. 2. There should be a 1-to-1 correspondence of major characteristics between the unknown hair and at least 1 hair from the comparison sample. 3. The comparison samples should be collected as near as practical to the date as the unknown is believed to have been shed. This minimises the chance that changes have occurred to the comparison sample, eg. length, changes to the tip end, cuticle damage, cosmetic alterations, etc. 4. No drastic changes should have occurred to the unknown hairs by accidental or environmental factors.”

“This is not to state that hair examinations cannot be useful as an investigative aid. When the above elements are not present, however, the probative value of such an examination is minimised. The hair from the tissue B9 [the necklace hair] lacked a root, and had been exposed to environmental changes. The comparison samples had been collected several months after the disappearance of CJ, thus the probative value of these hair comparisons are extremely limited. (Emphasis added.)”

Erickson explained in a subsequent letter to Widner (who acted for M at the 2nd trial) that there was no 1-to-1 correspondence of the major characteristics between the necklace hair and any 1 of M’s samples, and that while the hairs shared some similar microscopic characteristics, only the necklace hair had a bleached appearance at its tip. Erickson testified before the Inquiry that although the necklace hair could have come from M, it could also have come from any number of other people, male or female. Indeed, prior to the 2nd trial, Erickson had examined hair samples from 32 of CJ’s classmates. The necklace hair could have come from 2 of them as well.   He confirmed in his trial evidence that the value of this comparison was “extremely limited.”

The Car Hairs

Nyznyk testified at the 2nd trial that 3 hairs found in M’s car were dissimilar to M’s hairs, and could have come from CJ. As with the necklace hair, the car hairs had deteriorated over time and she was, therefore, unable to state that they were ‘consistent with’ CJ’s hairs. They could have come from 1 person or from 3 different people. Erickson also testified that the car hairs could have originated from CJ. He would not “go to the wall” with these comparisons because he did not think there were enough characteristics to be very strong in terms of his conclusions.

Findings

Erickson’s trial testimony fairly presented the hair comparison evidence and its limitations. Counsel was able to use Erickson’s concession to extract a similar concession from Nyznyk as to the extremely limited value of the necklace hair comparison. This concession might otherwise not have been forthcoming (to the same extent, at least) from her. Although the limitations of the hair comparison evidence were generally communicated by Nyznyk at the 2nd trial, I find that (1) she did not adequately or accurately communicate these limitations to police and prosecutors prior to the 2nd trial; (2) had these limitations been adequately communicated, M may not have been arrested when he was — if, indeed, ever; (3) the hair comparison evidence was misused by the prosecution in its closing address (though I do not find that this was done malevolently).

The introduction of evidence that hairs ‘could have come from’ M or CJ also raises an important systemic issue: does the probative value of such evidence, even if viewed as a piece of circumstantial evidence to be evaluated cumulatively, truly outweigh its prejudicial effect and justify its reception in support of guilt. Although our subsequently acquired knowledge that these hairs did not originate from M or CJ cannot dictate the answer to this question, the dangers associated with this evidence are surely highlighted by that known fact.

An Overview of the Fibre Comparisons in Morin - The Conclusions Drawn by Nyznyk and Erickson

Fibres were collected from the taping of CJ’s clothing and recorder bag found at the body site, from the taping and vacuuming of the Morin Honda and from tapings of the Morin residence. Many thousands of fibres (perhaps hundreds of thousands) were examined. Several became significant. All of them were extraneous fibres, and no source was ever identified for any of them. As such, Nyznyk and Erickson could only conclude that the compared fibres were similar and could have come from the same source.

Nyznyk concluded that: 1. A pink / red animal hair fibre found on a taping from the front floor of the Honda could have come from the same source as a fibre removed from one of CJ’s socks and a fibre found on a taping of her right shoe; 2. A purple / pink animal hair fibre found on a taping of the rear floor of the Honda, and a purple / pink rabbit guard hair fibre found in a vacuuming from the same vehicle could have come from the same source as a fibre removed from the waistband of CJ’s corduroy pants and a fibre found on her sweatshirt; 3. A pink polyester fibre found on a taping of the gold seat cover in the rear of the Honda could have come from the same source as a fibre found on CJ’s recorder pouch; 4. A dark grey animal hair found on a taping of the Morin living room rug could have come from the same source as 2 fibres found on tapings of CJ’s turtleneck sweater.

Erickson was of the view that only 1 fibre collected from CJ’s turtleneck sweater was similar to the dark grey animal hair collected from the Morin living room rug; otherwise, he agreed with these comparisons.

At the 2nd trial, much time and effort was expended by the defence, through cross-examination of the Centre’s experts and through its own expert evidence, to find out whether all of these compared fibres were true similarities. For example, the accuracy of the MSP graphs (as well as the conclusions drawn from them) was contested. In my view, the fibre comparisons were vulnerable for a more important reason: the similarities, even if they all existed, proved nothing.

Fibre similarities, assuming they exist, may be explained in different ways: (1) they may be random — that is, it may be (and often is) mere coincidence that several similar fibres are found in different locations; (2) the number of similar fibres, particularly where some or all are unusual, may be evidence of direct contact, and that, of course, was the position of the prosecution; (3) they may be evidence of a shared environment - fibres transferred without direct contact between the persons or objects on which the fibres are located (‘environmental contamination’); (4) they may be explained by contamination during the collection, examination or storage of trace evidence (‘contamination’). In this case, the fibre similarities did not favour the theory of direct contact.

Findings

Despite Nyznyk’s evidence to the contrary at the Inquiry, I find that the clear thrust of her testimony at both trials was that these fibre similarities were likely evidence of direct contact between CJ and M. She minimized the likelihood that the similarities could be explained by random occurrence or environmental contamination. She never admitted (though given an opportunity to do so when the topic was explored by the defence) that internal contamination at the CFS could also possibly explain these similarities. Despite her evidence at the Inquiry, I find that she advised police and prosecutors that these fibre similarities were truly significant in placing CJ with M and that they were not ‘neutral’ or insignificant to the prosecution’s case. Erickson’s trial testimony also conveyed his opinion that these fibre similarities, though not conclusive, were significant to the prosecution’s case. Erickson never disclosed that internal contamination at the Centre could possibly explain these similarities.

The thrust of their evidence is accurately summarized by the Attorney General of Ontario in M’s appeal:

106. Based on [the hair and fibre matches] it was Nyznyk’s opinion that:
(a) Finding similar fibre types in the Appellant’s car and in his home was significant since it demonstrated that there was transference of fibres between the home and the car;
(b) Finding similarities between fibres on CJ’s clothing and the Morin living room rug was significant as it showed another instance of transference of fibres;
(c) With respect to finding several hair and fibre matches, as opposed to just 1, Nyznyk stated:
If you found just 1 or 2 matches, then you would have to, you maybe have to consider the fact that it could have been be a random match, that it just happened to be that those fibres were there. The more matches you have, the less the chance, the less the possibility of having a random match of something just happening to be there and matching.
107. Mr. Erickson agreed with Ms. Nyznyk, stating:
Of course the more matches that you find, be it with hairs, fibres, paints, glass, the less chance there is of a random occurrence or a happening.
Well, if they just have come here randomly, there’s less chance of that occurring. They still could be there, it’s possible that they were there through a random occurrence but it diminishes with the more matches that you have.
139. Ms. Nyznyk concluded her evidence by stating that, given the number of hair and fibre matches in this case, while it’s possible, it’s highly unlikely that they were all due to contamination.

I find that (1) the fibre evidence was contaminated within the CFS and this contamination might or might not have tainted any findings respecting fibre similarities; (2) this contamination was known to Nyznyk and Erickson prior to the 1st trial and withheld by them from the police, the prosecution, the Court and the defence at both the 1st and 2nd trials; (3) further examination on already contaminated fibres was ordered by Erickson for possible use at the 2nd trial; though no additional incriminating findings were used, certain findings which assisted the defence and undermined the prosecution were not communicated to the prosecution or the defence; (4) apart from the contamination at the Centre, the fibre similarities were not probative in demonstrating direct contact between CJ and M - instead, they were equally explainable by random occurrence or environmental contamination; the number and nature of the fibre similarities did not support the prosecution’s position; (5) Nyzynk and Erickson failed to communicate accurately or adequately the limitations on their findings to the police, the prosecutors and the Court; (6) Erickson (and likely Nyznyk) provided the prosecution with a published study on fibre transference (the Jackson and Cook study), which did not support an inference that the fibre findings in the Morin case were significant; (7) Erickson and Nyznyk failed to accurately or adequately communicate the limited relevance, if any, of the study to the prosecutors or to the Court; (8) the fibre findings and, more particularly, the Jackson and Cook study, were misused by the prosecution in its closing address (though I do not find that this was done malevolently); (9) this misuse was compounded by the defence’s approach to this evidence. The evidence bearing upon these findings is summarized below.

The introduction of evidence that fibres ‘could have come from’ M or CJ raises an issue similar to that generated by the hair comparisons: does the probative value of such evidence, even if viewed as a piece of circumstantial evidence to be evaluated cumulatively, truly outweigh its prejudicial effect and justify its reception in support of guilt. Though our subsequently acquired knowledge that M was not in direct contact with CJ and that the fibre similarities were, in reality, insignificant cannot dictate the answer to this question, the dangers associated with this evidence are surely highlighted by those known facts.

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