Capital Crimes: Ottawa trials figured prominently in the evolution of DNA use in crime-solving – Ottawa Citizen

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The beauty of DNA is that it doesnt discriminate.

Following a moment of stunned silence, pandemonium broke out in a Barrie, Ont., courthouse on the night of March 1, 1991, when the jury foreman, after seven hours of deliberation with the 11 other jurors, stood and delivered the verdict in Claude Bourguignons trial.

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Bourguignon was charged with first-degree murder in the disturbing death in June 1989 of 2-year-old Paul Bourguignon Jr., Claudes nephew. The youngster had been sodomized and strangled, his body subsequently wrapped in a garbage bag in a Pampers diaper box and discarded in a dumpster near his west-end Ottawa home.

As soon as the foreman said not guilty, reporters hurried from the courtroom to file their stories. Others present, including family members, expressed their emotions, be they relief, thankfulness, anger or shock.

Hilary McCormack, the assistant Crown attorney who was prosecuting the case that, because of its notoriety, had been moved from Ottawa, waited for the other shoe to drop.

Im waiting for him to say not guilty of first-degree murder, but guilty of second, McCormack recalls. But nothing happened.

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The trial had gone extremely well for the prosecution, with Claude having to challenge the testimony of numerous witnesses in an effort to maintain his innocence. The neighbour who testified seeing him outside at 6:30 a.m. on the day Juniors body was discovered was mistaken, he claimed, as was another neighbour who testified to having heard a childs cry soon after Claude retired to the row house for the night. Even his mother and sister-in-law were mistaken when they said that he told them he received scratches on his stomach and groin from horseback riding, with Claude later telling police they were the result of picking burrs off a stray cat, a story that an animal expert for the Crown said was highly implausible.

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McCormack had also picked apart Claudes claim that the reason that sperm with his DNA was found on Juniors bed was that he had earlier masturbated there during a five-minute interlude when Juniors father, Paul Sr., had gone to greet his girlfriend. But hadnt the girlfriend testified that both Paul Sr. and Claude had greeted her together?

He really did look bad, McCormack recalls. I knew I had this guy it was just a matter of going through all these things. And at the end, I said to him, It couldnt have been anybody else, and he agreed with me.

The scene in the courthouse that night was soon turned on its head, however. McCormack recalls the juror closest to the foreman thumping him on the back, nearly knocking him out of the jury box, while other jurors shouted at him, No! No!

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Sorry, the flustered foreman explained to the court. I blew it. Claude Bourguignon was found guilty.

For that 10 or 15 seconds, McCormack says, Bourguignon thought he was acquitted. It really was quite a moment.

Claude Bourguignon was sentenced to life imprisonment with no chance of parole for 25 years. Twenty-four years later, and at the time an inmate at Joyceville Institution, he died in hospital in Napanee at the age of 52.

The Bourguignon case was one of a pair of late-1980s Ottawa crimes crimes that heralded groundbreaking developments in the evolution of trials and evidence-collecting. Bourguignons was the first murder conviction in Canada secured by DNA evidence.

The other case was a brutal sexual assault that occurred in Ottawa in September 1988 and went to trial early in April 1989. Also prosecuted by McCormack, it marked the first time in Canada that DNA evidence at a trial led to a conviction. It was also first time that DNA in a criminal trial had been tested in Canada, by the RCMP.

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In that trial, the Crowns case against Paul McNally had concluded after three days of testimony, and the defence was due up next.

McNally, 32, had been charged with sexual assault causing bodily harm, unlawful confinement and breaking-and-entering following an attack on a 68-year-old widow in her New Edinburgh home. The woman was raped four times and forced to perform oral sex, with her assailant promising to return later that night and every night, she testified.

Trial judge Keith Flanigan, then a 19-year veteran of the bench, described the assault as one of the most repulsive attacks on a woman Ive ever encountered.

Although it was dark on the night of the attacks, the woman could make out enough of her assailant by the weak light of an outdoor streetlight to identify him. Her visual ID of the man was augmented, she added, by his smell. He was the same man, she said, who had been at her home a month earlier to tile a floor. She recognized the odour of the adhesive glue he used in his trade.

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If the womans identification wasnt conclusive on its own, it was enough for police to consider him a suspect, and an analysis of his DNA was conducted.

And so, on the third day of the trial, instead of launching into its case following the conclusion of the Crowns arguments, a break was requested by the defence. Facing overwhelming DNA evidence five independent tests leaving a slim one-in-70-billion chance that anyone else could have committed the crimes, according to expert testimony McNally, McCormack recalls, wanted some time to confess to his wife, who had vociferously supported him, before changing his plea to guilty.

McNally was sentenced to seven years imprisonment for the first charge, and two years each for the other two, to run concurrently with the first.

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The DNA evidence in the case, McCormack says, was crucial. Without it, the judges instructions to the jury about the reliability of visual identifications may have carried more weight. This would have been extraordinarily difficult to get a conviction (without the DNA). I would have pursued it, knowing that all of these adverse instructions from the judge were coming, because I was satisfied she was right.

But the admissibility of DNA evidence and its eventual overwhelming acceptance, McCormack adds, truly has revolutionized criminal investigations and criminal prosecutions.

The DNA evidence in the Bourguignon trial didnt draw a direct line from Claude to the youngster none of the uncles DNA was found on or in the boys body but it was one of many factors that strongly pointed to Claude and convinced a jury that he had committed the crime.

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Without that DNA evidence, McCormack is convinced that Claude might never have been arrested in the first place. And, unlike today, when suspects can, with a warrant and probable cause, be compelled to provide DNA, there was no such provision 30 years ago, except for blood samples from those believed to be driving under the influence of alcohol.

(Claude Bourguignon) had agreed, although not entirely voluntarily, McCormack recalls. Every other family member went and gave blood. He was kind of shamed into it by his family, by his mother.

Whether Claude knew the perils of submitting his DNA was uncertain. He had, however, already declined a polygraph, or lie-detector, test, the results of which are generally inadmissible in court. Those machines dont work, he said then. Theyre a waste of time.

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The use of DNA evidence in criminal trials, though still in its infancy, was not unheard of. The process of DNA extraction and profiling had been developed in Britain in 1985 and was first used in court in 1987, when Leicestershire baker Colin Pitchfork was convicted of the rape and murder of two 15-year-old girls, one in 1983 and the other in 1986.

McCormack, who in her undergraduate years had studied genetics and chemistry, followed that case closely. She understood the science of DNA fingerprinting, and, when the McNally case presented itself, wanted to use it.

They were testing in England and had started to do it in the U.S., she recalls. And so I phoned up my investigating officer and said I wanted him to go to the RCMP lab and get our samples. She had made a special presentation to the ministry to justify the expense. I said I think this is worth a chance because it was a really very brutal sexual assault really, really brutal and we ought to be investing in this. We would have been negligent not to do this.

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The RCMP, meanwhile, had just readied its lab to do DNA testing and offered to run McNallys samples.

The process of testing was extremely time-consuming and expensive then, considerations that factored into the three and a half months that passed between Junior Bourguignons death and his uncles arrest, as the public breathed heavily down the necks of Ottawa police to solve the murder.

It was a very, very slow manual process that took weeks to process a single case, says Dr. John Waye, at the time a molecular genetics specialist with the RCMP. Terribly laborious and slow, so it was used very sparingly, and prosecutors and the lab cooperated and picked out the cases where the evidence would be most probative.

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Now the director of laboratory genetics at Hamilton Health Sciences and professor of pathology and molecular medicine at McMaster University, Waye provided expert testimony at both the McNally and Bourguignon trials. And, while many viewed the bourgeoning science as hocus pocus, and indeed it was frequently challenged the Defence Counsel Association of Ottawa, for example, suggested at the time that DNA typing might turn out to be no more significant than polygraph tests Waye never doubted the science.

Every aspect of the technology was being tested, he recalls, and in the Bourguignon trial I could give an opinion about the rarity of something, but I couldnt justify my opinion using statistics. After a very lengthy voir dire (the pre-trial process to determine the admissibility of evidence), it was decided that the numbers would be too prejudicial.

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Today, though, Waye says that DNA evidence is as readily accepted as fingerprints following a few rough years at the beginning with numerous challenges based on arguments that would now seem frivolous.

Eleven years after the McNally case, Canadas National DNA Data Bank was created by an act of Parliament. It formalized the centralized collection of hundreds of thousands of DNA profiles to assist investigators solve various crimes. According to the RCMP, which oversees the data bank, its main goals are to link crime scenes across jurisdictional lines; help identify or eliminate suspects; determine whether a serial offender has been involved in certain crimes; and assist investigators, coroners and medical examiners in finding missing persons and identify human remains.

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The exoneration of suspects by DNA is sometimes overlooked, but the very first use of DNA evidence in a criminal trial in Canada, in Calgary in 1988, did just that, as it has since in numerous widely publicized exonerations, including those of David Milgaard and Guy Paul Morin.

The beauty of DNA is that it doesnt discriminate, says McCormack, who became Ottawas Crown attorney in 2000, then director of Crown operations before becoming chair of the Military Police Complaints Commission in 2015. It just exonerates or includes, and its probably as powerful a tool for vindicating people, particularly those in the States who are on death row.

In that sense, it has become an extremely valuable tool that convicts the guilty and exonerates the innocent.

bdeachman@postmedia.com

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Capital Crimes: Ottawa trials figured prominently in the evolution of DNA use in crime-solving - Ottawa Citizen