UNCLEAR WHAT PROSECUTORS ... CAN DO.

with respect to the guilt of the defendants …

“In my view, these comments, made two months before he offered his final forensic report, demonstration Mr. Gagnon’s lack of independence and impartiality,” the judge said.

“… I would characterize Mr. Gagnon’s comments to be the kind one would expect to hear from a partisan police investigator, not a supposedly independent and unbiased expert.”

It was a stunning rebuke for police and prosecutors both, and a particular irony that in a prosecution which is in large measure about email, it was a note sent by Gagnon that really sunk him.

While the judge granted that there has been “a dramatic evolution” in Canadian law on expert witnesses in the past few years, he noted that the main recent case, a Supreme Court decision called White Burgess which emphasized that experts must be independent, impartial and unbiased, was released two years ago.

“If measures had not been taken by the police or prosecution prior to White Burgess to retain an outside and independent computer forensic analyst unconnected to the investigation, the judgment in White Burgess should have sent a strong message to them to strongly consider doing so,” he said.

It remains unexplained why neither OPP lawyers nor prosecutors recognized the Supreme Court case as significant.

When Gagnon was first hired, the judge said, the OPP gave him a separate, secure lab in which to do his work apart from the investigative team — but then did nothing else to insulate him sufficiently that he could reasonably be put up as an impartial expert.

Unlike all other witnesses, properly qualified experts are allowed to give their opinions; in Gagnon’s case, he would have been able to offer his interpretation of what the data, computers and cellphones he studied means — for instance, that documents were deleted by a certain person at a particular time.

It is unclear what prosecutors will or can do to repair their case.

Luckily for them, the trial is scheduled to break for two weeks Friday, so they will have some time.

Prosecutors called their first witness Thursday, former career civil servant Linda Jackson.

Now retired, she spent the last part of her 36-year career as an assistant deputy minister cum chief administrative officer for Cabinet — essentially, she said, the “ministry for the premier’s office.”

Her cross-examination will continue Friday.