CHAPTER 6: PHYSICAL SCIENCES

6:10 Anthropology

R. v. Sharples, 2015 CarswellOnt 14039 (Ont. S.C.J.)

Crown Expert: Dr. Kathy Gruspier

Christopher Sharples was charged with first-degree murder in relation to the killing of his common law spouse. It was the Crown’s theory that Sharples killed the victim in their home and thereafter attempted to dispose of the body.

The victim’s body was found almost two years later in a wooded area in the District of Parry Sound. Her skeletal remains were examined by a forensic anthropologist, Dr. Kathy Gruspier.

At trial the Crown sought to call Benjamin Sampson, a toolmark expert, to give evidence in support of the theory that the victim’s body had been dismembered. The trial judge rejected this evidence. In part, the judge noted the evidence of Dr. Gruspier who testified, “that there was no evidence of dismemberment” and that “any missing parts of the body would be attributable to scavenging by animals”. The court further noted that Dr. Gruspier “testified that she checked for and found no metal shavings that would indicate an attempt to dismember the body”.

R. v. Hales, 2014 CarswellSask 833 (Sask. Q.B.), affirmed 2015 CarswellSask 759 (Sask. C.A.)

Crown Expert: Dr. Ernest Walker

Douglas Hales was charged with first-degree murder. The victim, Daleen Bosse went missing one night. Her remains were only recovered when Hales told an undercover officer how he had killed her and where he left his remains. Hales was the subject of a police investigation. During early interviews with Hales, he admitted to meeting Daleen at a nightclub the night she disappeared. He denied hurting or killing her.

The police later resorted to a Mr. Big operation. During the course of that operation, Hales told an undercover officer that he killed Daleen. He told the officer where he killed her and where the remains could be found. The trial judge summarized how this unfolded:

On the ride back, the conversation focused upon the two men discussing how Hales would handle such a situation. N. initially brushes off the responses of Hales and observed that until someone has gone down the road of a serious crime, implying a homicide, they do not know how they would deal with such a situation. With that generalized statement, Hales responds, “Well yeah I’ve done it”, to which N. asked, “Done what?” Hales then says, “I’ve killed, killed a hooker”. N. indicates to Hales that he does not need to impress him, after which Hales says, “Yeah I’m not I’m not lying its ah in the paper actually the one you bought that there talking about her, four years. They never found her cause I knew how to get rid of her. I did it the proper way I did it all myself cause I didn’t want to get caught. I could I could tell the whole, the whole scenario if you want”. Shortly thereafter, Hales further says, “Yeah yeah it had to be done I . . . I finished it. . . . It had to be done. I couldn’t let her you know like a loose string I couldn’t let her just go away with a beating I had to (inaudible). I got a lot of . . . rage out on that and ah yeah I don’t feel sorry, she . . . deserved every . . . bit of it.” [at para. 62].

Hales told the officer that the victim’s remains were in an area near Martensville. He said that he had started a fire and placed an “old fridge over the remains”. The remains were located.

At trial the Crown called Dr. Ernest Walker. He was qualified as a forensic anthropologist to give evidence in the area of “biological anthropology and forensic anthropology”. The trial judge noted that he had “worked with police agencies throughout Saskatchewan for many years when an investigation requires the examination of human remains”. Dr. Walker opined that the remains which were discovered were “found to have been affected by heat alteration” and he concluded that “the body was burned at that location”. Moreover, “[i]t was very clear to him that the remains had not been disturbed from their origin to the date of his examination. There was also no evidence of predation. He concluded from his investigation that the individual was a female, and his estimate of age based upon dental remains was between 18 and 30 years of age”. Dr. Walker further offered that the state of the remains was consistent with death having occurred in 2004.

Hales was convicted of second-degree murder.

6:20 Arson

R. v. Fournel, 2014 CarswellOnt 5069 (Ont. C.A.)

Crown Expert: Douglas Horn

Fournel was convicted of arson and administering a noxious substance. The victim was her daughter-in-law who was in the midst of an acrimonious break-up with Fournel’s son. Fournel slipped sleeping pills in to the daughter-in-law’s drink, set a fire and left the home. The victim escaped unharmed. At trial, the Crown called Douglas Horn a fire investigator with the Ontario Office of the Fire Marshall.

Horn examined the scene of the fire and eliminated careless smoking as a possible cause. Horn sought the opinion of an electrical engineer to examine the possibility of an electrical fire. Based on the opinion of the electrical engineer and his own investigation Horn concluded that the fire was intentionally set in the bedroom closet.

Notwithstanding some inconsistent answers between the prelim testimony and the trial testimony the judge accepted the conclusion that the fire was caused “be the intentional application of flame to combustibles in the bedroom closet.” [at para. 30]

Fournel challenged the judge’s conclusion on this point in one of her grounds of appeal. The Court of Appeal held: “the fact that the trial judge did not accept the defence position with respect to [the electrical engineer’s’ examination or Horn’s conclusions does not render her conclusions in this respect erroneous.” [at para. 48]

R. v. Cartolano, 2013 CarswellOnt 8883 (Ont. S.C.J.)

Crown Expert: Scott Evenden

Defence Expert: Dennis Merkley

Cartolano was charged with arson for fraud and arson with disregard for human life. The charges related to a fire and explosion at a historic hotel in the town. [at para. 2] No one was injured however residents lost personal property and pets perished.

At trial the Crown called Scott Evenden and sought to have him qualified as an expert in the cause, origins and circumstances of fires and explosions. Evenden’s qualifications were challenged and a Mohan voir dire was held. The judge held “that there is no doubt that Evenden is qualified to give expert evidence in the cause, origins and circumstances of fires and explosions.” [at para. 87]

Evenden’s opinion was that the fire was incendiary; that “a volatile ignitable liquid identified as gasoline was intentionally applied of the floor area within the basement”. [at para. 90] The gasoline vapour ignited and caused the explosion. [at para. 91]

Mr. Merkley was qualified as an expert in the source and origin of explosions and fires. Merkley had worked as an investigator for the Ontario Fire Marshall for 17 years and later as a supervisor and trainer. Since retiring from public service Merkley has been working as a fire investigator and CEO of Fire Facts.

Merkley concluded that “the source of ignition, the fuel first ignited and the sequence of events that brought all together” could not be establish. [at para. 116] Merkley also criticized the methodology and conclusions of Evenden’s investigation.

In acquitting the accused the trial judge concluded that the expert evidence was “equivocal on the issues of whether the fire was intentionally set and whether gasoline was the fuel first ignited in the fire.” [at para. 178]

R. v. Nguyen, 2014 CarswellBC 452 (B.C. S.C.), affirmed 2016 CarswellBC 856 (B.C. C.A.)

Crown Expert: Not identified

Nguyen was charged with six offences related to arson at a commercial property that she leased for the nail salon she operated.

The expert testified and it was ultimately conceded that the fire was deliberately set. Notwithstanding the concession the trial judge highlighted the conclusions reached by the expert and ultimately held that he was convinced beyond a reasonable doubt of the expert’s opinion. The trial judge highlighted several aspects of the fire investigator‘s evidence that he found persuasive including the fact that he:

• attended the scene within hours;

• read all of the reports of those who had attended the fire; and

• even personally spoke to witnesses.

R. v. Johnston, 2014 CarswellOnt 2763 (Ont. S.C.J.)

Crown Expert: Michael Ross

Johnston was charged with two counts of arson in relation to a fire that caused $8,000 in damage to his rented apartment. When firefighters arrived on scene Johnston told them that he lit the fire in order to harm himself.

Mr. Ross an investigator with the Office of the Fire Marshall determined that the fire was intentionally set. At trial, Ross was qualified as an expert in fire scene assessment and examination including the origin, cause and circumstances of fire, fire scene management and security, and the collection, photography and handling of exhibits. [at para. 20]

In reaching his opinion about the origin and cause of the fire, he examined the scene, the results of forensic tests and the statements of the firefighters who responded to the fire call. He opined that the fire was started by the application of an open flame to the combustible material that was piled near the east wall of the living room. [at para. 21]

No ignitable liquid was found on the samples of fire debris which led Ross to conclude that the fire could have been started without such a liquid or the liquid was consumed in the fire.

The Defence theory was that the fire investigation was flawed and that the fire could have been caused by a smouldering marijuana cigarette. In cross-examination, Ross rejected this theory highlighting the presence of a plume flame in this fire which is not present when the fire is ignited by a smouldering source. [at para. 24]

The trial judge accepted the expert evidence and highlighted the following:

• the defence theories were adequately addressed by the expert and the court accepted those explanations;

• the expert evidence was consistent with the observations of numerous firefighters and a statement made by the accused;

• moreover the expert evidence was not contradicted. [at para. 36]

6:30 Blood Stain Pattern Analysis

R. v. Rothgordt, 2014 CarswellBC 1947, 2014 BCSC 1215 (B.C. S.C.), affirmed 2017 CarswellBC 1559 (B.C. C.A.)

Crown Expert: Sgt. James Hignell

Kim Rothgordt was charged with second degree murder in relation to the killing of James Shannon. Shannon was killed by Rothgordt after the latter delivered numbers blows to Shannon’s head during or immediately after a pre-arranged sexual encounter. The Crown’s theory was summarized as follows by the trial judge:

The Crown’s theory as stated in their written argument is that on February 13, 2008 Mr. Rothgordt killed Mr. Shannon by beating him with a hammer in Mr. Shannon’s bedroom after having consensual sex with him. Mr. Rothgordt then called his son, Ryley Lockwood, to come to Mr. Shannon’s residence, which his son did. Then Mr. Rothgordt left Mr. Shannon’s residence with Mr. Lockwood only to return and spend several more hours in Mr. Shannon’s residence before making his way to the nearby 7-11 store on the morning of February 14, 2008. Mr. Rothgordt then took a cab to the hostel, where he was arrested by police a little while later after causing a disturbance. The Crown says Mr. Rothgordt then “faked” the suicide attempt on February 16, 2008 so he could hide out in the psychiatric ward of the Port Alberni hospital to consider his predicament. He decided to cover his tracks and enlisted his friends and family to steal and destroy evidence, while at the same time leading the hospital staff and police to believe he was the victim of a sexual assault and that his assailant was still alive. He told many conflicting stories regarding his encounter with Mr. Shannon, none of which were true. [Para 26]

The issues at trial related to whether the killing was either self-defence or occurred while Rothgordt was too intoxicated to form the specific intent for murder or was the result of provocation.

Several experts were called at trial. This included Sgt. James Hignell who was qualified as an expert in blood stain pattern analysis. The court noted that he was “highly qualified and experienced in this area” and that he had prior experience in scenes involving hammers [para 330].

The key findings of Sgt. Hignell included:

(1) Impact spatter and castoff stains on the headboard, walls, ceiling, and floors as described at “C” to “G” would have occurred when SHANNON was reclining or lying on the bed and received a minimum of 5 blows to his face and head.

(2) The swipe stain on the bedroom door frame as described at “E” would have occurred when a bloody object or individual made contact with the door frame while moving out of the bedroom.

Other aspects of Sgt. Hignell’s evidence included:

— From a vantage point facing the end of the bed, Staff Sgt. Hignell also noted that the dark comforter shown to the right of the deceased’s head bore a soak stain.

— The left edge of this comforter upon which the deceased was lying bore projected drops of blood and a piece of bone.

— The maroon pillow to the right of the deceased’s head bore projected drops of blood.

— The blue pillow left of the deceased’s head bore a soak stain associated with a flow of blood.

— The right edge of a second maroon pillow left of the deceased’s head bore projected drops of blood.

— A second blue pillow along the left edge of the bed bore projected drops of blood, clots, and a somewhat circular area of “void” (lack of blood stain) along the right edge.

Notably, the court identified the following aspects of Sgt. Hignell’s cross-examination and re-examination:

During cross-examination, Staff Sgt. Hignell agreed that small stains on the deceased’s left chest were projected onto his body from a source and at some point the deceased would have been moving (Exhibit 70); the directionality of several projected drops on the deceased’s left leg was from the hip towards the knee (Exhibit 71). He also agreed that the deceased was up and possibly moving some distance from the headboard when the projected drops fanned out on the wall above the headboard. When it was put to Staff Sgt. Hignell that Mr. Shannon was bending over another person when this event occurred, the witness said it was likely that Mr. Shannon moved but not a lot, given the totality of what he observed in the bedroom and the bloodstain patterns. The deceased received the blows basically where he was found. Staff

Sgt. Hignell admitted that the deceased could have been above the person who was hitting him for at least one blow. He also admitted that it was possible that Mr. Shannon received a blow beside the bed as opposed to on it; and, he acknowledged the blood stain fans where the north and west walls adjoin could have been made when Mr. Shannon was up and off the bed, on someone else and moving.

In re-examination, Staff Sgt. Hignell said that it was possible but unlikely that the fanned bloodstains on the north and west walls occurred when Mr. Shannon was above someone else on his knees facing the north wall. However, given how the deceased was found, lying on his back with his outstretched right arm covered by two pillows and without blood stains on his right hand and forearm, Staff Sgt. Hignell indicated that it was “a very unlikely event” that Mr. Shannon was on top of someone else facing the north wall at the time bloodletting blows were struck. [paras 339-340].

In support of the conviction and relevant findings, the court noted the following aspect of Sgt. Hignell’s evidence:

It is inconceivable that Mr. Rothgordt, in delivering the blows to Mr. Shannon’s head that projected blood spatter from one side of the bedroom to the other, was not himself completely covered in blood spatter from Mr. Shannon. Mr. Rothgordt washed himself off. Had he not done so, Mr. Lockwood would have seen much more blood on his father than the couple of drops he referred to. At some point Mr. Rothgordt had a shower in Mr. Shannon’s bathroom, hence his bare footprints there as found by Staff Sgt. Richard. While in the bathroom he threw a cigarette butt into the bathtub, based on a sample of DNA taken from it. [para 374]

R. v. MacDonald, 2013 CarswellNS 884 (N.S. Prov. Ct.)

Defence Expert: George Fraser

MacDonald was charged with assault following an altercation at a bar in Halifax. The victim was struck with a beer bottle. MacDonald denied having struck the victim with a beer bottle and instead argued he hit the victim acting only in self-defence.

The defence sought to tender the evidence of Mr. George Fraser — a retired RCMP officer. Mr. Fraser’s was to opine on the potential cause of the injuries to the victim. Prior to working in private practice as a consultant Mr. Fraser was a RCPM officer in the forensic identification unit. The Crown opposed the introduction of this evidence and a voir dire was held.

Notwithstanding the proposed area of expertise, Mr. Fraser was not a medical doctor nor a forensic pathologist.

The Court held that notwithstanding Mr. Fraser’s impressive career as a highly trained forensic identification officer, which included extensive training as a blood pattern analyst, the opinions defence sought to elicit from him were beyond the scope of his qualifications.

The Court declined to qualify Mr. Fraser as an expert and held:

[w]hile acknowledging Mr. Fraser’s impressive professional career, I found that the opinion evidence the Defence wished to elicit from him fell outside the scope of his expertise as a crime scene investigator and a bloodstain pattern analyst. Those forensic disciplines have afforded Mr. Fraser experience in observing wounds and injuries — as noted he has viewed autopsies, police photographs, and actual bodies — but he has none of the training, accreditation, or experience that would qualify him to offer opinions about the physiology and anatomy of the human body, the diagnosis of wounds and injuries, or the effects of trauma on the human body. This is expertise that falls within well-established areas of specialized medical knowledge, such as, forensic pathology. Mr. Fraser’s training and experience do not qualify him to make determinations about the cause of wounds or injuries. He has not been shown “to have acquired special or peculiar knowledge through study or experience” in respect of the cause of wounds on the human body. (Mohan, paragraph 27) Mr. Fraser has not previously been put forward as an expert in the causes of wounds or injuries nor has he ever been qualified by a court to give an opinion such as was proposed in this case. [at para. 83]

The Court noted that had the defence sought to qualify Mr. Fraser as a blood pattern analyst — he would have been so qualified. [at para. 86]

R. v. Vader, 2016 CarswellAlta 1704 (Alta. Q.B.)

Crown Expert: Adrian D. Butler

Defence Expert: Joseph Allan Slemko

Travis Vader was charged with two counts of first-degree murder. Lyle and Marie McCann were on a road trip. They were travelling through Alberta toward British Columbia in an RV. They never made it to their destination. An investigation into their disappearance led to a body of evidence that culminated in the arrest and charge of Vader for their killing.

Amongst the evidence gathered was evidence of “blood” on a number of items within the SUV including:

• on the Boag’s hat

• on the Superstore No Name Cans

• in the interior of the McCann SUV

The Crown called RCMP forensic investigators who gave evidence on how potential blood stains were identified and the tests were performed to confirm the character of the stains — those witnesses included Linda Rhodenizer, Pamela Marie Lilly, and Heather Janssens [at para. 85].

The Crown also called Sgt. Adrian D. Butler who was qualified as an expert in the interpretation and analysis of blood stain patterns [at para. 87]. Butler explained “this topic uses the size, shape, locations, and distribution of blood stains as a method to understand the physical events that caused the blood stain patterns. Since blood has a stereotypic composition its motion and behaviour outside the body follows predictable patterns based on blood’s physical properties and how blood responds to physical force and interaction with surfaces” [at para. 87].

The defence called Joseph Slemko who was qualified and provided expert evidence on blood stain analysis on behalf of the Defence.

Butler’s evidence was that “he was unable to offer commentary on the mechanism or mechanisms that led to nine blood stains located on the SUV console armrest” [at para. 90]. Butler’s evidence also included:

The Boag’s hat showed many stains. Most were spatter stains, at least 25 on the bill of the hat, and almost 50 on the top, sides, and back of the hat. Three larger stains that could be either caused by spattering or dripping blood were located on the top of the hat. The adjustment strap at the back of the hat exhibited a transfer stain. The pattern and size of the spatter stains was caused by force being applied to a source of liquid blood.

Four of the Superstore No Name Cans exhibited large numbers of spatter stains, 2 mm or less in diameter. The location, shape, and orientation of these stains was not consistent with a blood source in the vicinity of where the cans were located. Sgt. Butler concluded that these stains had been transferred to the No Name Cans at a different location, then the cans were relocated to the SUV and reoriented before the cans reached the location where they were recovered. The patterns on the cans are an impact pattern type. The source of the blood was an impact event about 3-6 cm from the bottom of the cans. In each case only one face of a can was exposed to blood. This made it possible all the cans were contaminated with blood via a single spatter event. The orientation of the blood spatter stains and the manner in which blood appears to have shifted under the force of gravity implies the cans were in a vertical position at the time the blood spatter occurred.

Beyond that, this expert was careful to stress he could not provide additional information and context, for example such as what source produced the transfer stain on the Boag’s hat, Sgt. Butler described the blood in the food can stains as uniformly diluted, which could be explained in a number of ways:

1. the blood was mixed with another liquid, and then the combined liquid was struck by an object causing the spatter pattern;

2. the cans were subjected to rain, but in that case there should have been flow patterns, or

3. the blood was combined with cerebral fluid.

He had previously encountered diluted blood and based his conclusion on that resemblance. [at paras. 91-93].

With respect to Slemko’s evidence, he concluded that “some of the stains on the Boag’s hat were caused by dripping blood. However, Mr. Slemko proposed a different explanation for the much smaller blood stains on that hat, and suggested these were satellite spatters, small secondary blood spatters that may be produced when a drop of blood lands on an uneven surface” [para. 94]. Slemko testified that “the explanation that Sgt. Butler had provided for the stain pattern observed on the No Name Cans was a possibility. He also agreed the blood was diluted, but from his field experience was skeptical of the cerebral fluid explanation” [at para. 95].

In relation to the blood on the SUV console, Slemko “agreed it was possible that a person standing at the window of the SUV might sneeze or cough into the vehicle, and that would account for the blood located on the centre station arm rest. He thought the same mechanism could be responsible for the stains located on the No Name Cans” [at para. 96].

In assessing the evidence the court rejected the defence position that “certain stains which the Crown identified as blood were something else, such as tomato juice” [at para. 98]. The court also noted:

What is clear from the evidence of the two blood stain experts is that their ability to reconstruct what had led to the blood staining was hampered by the fact some of the items, the Boag’s hat and the cans, had been recovered in a location that was not the one where those objects had been initially exposed to blood. The absence of context meant both experts had to acknowledge that while they may prefer a particular explanation for the observed blood staining, that there are other alternative explanations. For example, a sneeze could have transferred material to the cans.

Neither expert could with any confidence explain the blood dilution. Some of the potential alternatives are much more sinister than others. The larger stains on the Boag’s hat could be caused by blood drops falling from above, or drops ejected into the air by an unidentified mechanism.

[. . .]

Both blood stain experts pointed to large spots of blood on the Boag’s hat and indicated these appeared to be drops of blood landing on the hat in a manner perpendicular to the ’horizontal’ orientation of the hat. I accept that is the more likely explanation for the larger drops. As for the other small spatters, the experts make different suggestions. I prefer the scenario advanced by Sgt. Butler, but think it is entirely plausible that at least some of the smaller spatters are satellite stains as suggested by Mr. Slemko. However, after careful review of the spatter locations I conclude that at least some of these are caused by a mechanism other than satellite staining, in particular given the association of small spatters to the bullet hole. I therefore reject the alternative argument that the large number of blood spatter locations on the Boag’s hat are only a consequence of a few large drops landing on the hat, and then fragmenting. The pattern visible simply does not match that mechanism, and though Sgt. Butler very properly agreed that secondary satellite stains could account for some of the observed pattern, I accept his conclusion that mechanism alone cannot explain the state of the hat, as a whole. [at paras. 99-100 and 102].

R. v. M. (K.), 2015 CarswellNWT 101 (N.W.T. S.C.)

Crown Expert: Staff Sergeant Standing

KM was charged with first-degree murder of CL. The victim’s body was found in a driveway; there was blood on the snow in various locations of the driveway. Staff Sergeant Standing examined the scene and produced a report. He is trained as a bloodstain pattern analyst. He is employed with the RCMP. At trial the Crown sought to tender his opinion evidence on the bloodstains found at the scene.

The trial judge summarized the evidence of Standing as follows:

Staff Sergeant Standing identified seven specific areas of the driveway in question. He examined the blood stains on the snow in each of these areas and he drew certain conclusions, which are outlined in his report. He draws certain conclusions between different types of blood stains that he observed. His opinion is that these different types of stains suggest different things, and different conclusions can be drawn from them.

To give a few examples of these distinctions, he defines a “swipe pattern” as a blood stain pattern resulting from the transfer of blood from a blood bearing surface onto another surface with characteristics that indicate relative motion between the two surfaces. He defines a “wipe pattern” as an altered blood stain pattern resulting from an object moving through a pre-existing wet blood stain. He defines a “drip trail” as a blood stain pattern resulting from the movement of a source of drip stains between two points. And he defined “drip stain” as a blood stain resulting from a fallen drop that formed due to gravity. There are other definitions in his report but this illustrates some of the distinctions that he makes.

He also draws conclusions in his report about some of the areas that have to do with what he calls “directionality,” which he defines as the characteristic of a blood stain that indicates the direction the blood was moving at the time of the deposition.

The summary of key findings, which appears on the first page of his report, is fairly straightforward. Those findings read:

A minimum of six impact patterns and the other blood stains present at the scene are consistent with being created as a result of the deceased, C.L., being beaten, bleeding, and moving northward along the driveway at the rear of the elder’s residence.

[at paras. 8-11].

Defence objected to the admission of Standing’s evidence — primarily on necessity. The defence argued that the conclusions were “common sense”. The Crown argued that the opinion went well beyond that of the average trier of fact and without his evidence the jury could not draw inferences that would otherwise be available from the evidence. The court agreed:

But the same is not true for all the different types of blood stains identified in the report. The difference between a “swipe pattern” and a “wipe pattern” or the difference between a “transfer stain” and a “drip stain,” for example, are far less obvious to me, and I imagine they would be to jurors as well. In addition, and importantly, conclusions about what the report calls “directionality” based on the blood stains and patterns is not, in my view, something that someone without special training and expertise could draw. For that reason, I am satisfied that, unlike the subject matters of the proposed expert evidence in R. v. D. (D.) and R. v. Sekhon, this evidence does not pertain to something that is a matter of everyday common sense for the jury to assess, nor is it about something that I could simply give the jury instructions about. [at para. 25].

The court also rejected the notion that since there was an eyewitness to the attack the expert evidence was not necessary. Necessity, in this context, does not mean that the “expert evidence is the only evidence available to the Crown to prove a fact relevant to its case” [at para. 30]. The Crown is “entitled to use expert evidence to make its case stronger and to corroborate evidence” [at para. 30]. The court admitted the evidence of Staff Sergeant Standing.

6:40 Chemistry

R. v. Stevenson, 2014 CarswellOnt 17424 (Ont. C.A.), leave to appeal refused 2015 CarswellOnt 7436, 2015 CarswellOnt 7437 (S.C.C.)

Crown Expert: Dr. Gerard

Stefanie Stevenson was murdered on December 23, 2006 as she left home to go to work at a local hospital. Stefanie was shot once in the head by a perpetrator who attacked on the short walk from Stefanie’s residence to her vehicle. The only issue at trial was the identity of the shooter. Stefanie’s ex-partner with whom she shared custody of their children was charged and convicted after trial of first degree murder.

On appeal Mr. Stevenson argued that the trial judge erred in admitting evidence from the gunshot residue expert as to the number of particles found on Mr. Stevenson’s hands.

Dr. Gerard testified about the general composition of gunshot residue as follows:

Dr. Gerard explained that gunshot residue is derived from the primer cup of a piece of ammunition. The primer cup contains lead, barium, nitrate and antimony sulphide. When the gun is fired, the primer explodes and vaporizes. Some of the lead, barium and antimony particles will escape the firearm through the muzzle or any breach in the loading mechanism. When those particles hit the cold air, they condense into small microscopic droplets.

Dr. Gerard explained that when a gun is fired, the particles produced by the condensation of the vaporized discharge include particles that contain only lead, only barium, only antimony, some combination of the two, or all three. Dr. Gerard further testified that there are many possible sources of one or two element particles containing some combination of lead, barium and antimony. This was particularly true with respect to particles containing lead. Because of the other potential sources of one and two element particles, the CFS, like most in the forensic science community, treats only three particle elements as GSR. [at para. 84-85]

The defence objected when the Crown sought to elicit from Dr. Gerard the number of one and two element particles on Mr. Stevenson’s hands, his clothing and other items seized at the time of his arrest.

The number of particles containing one or two of the three elements significantly exceeded the number of GSR particles found. For example, while 22 GSR particles were found on the appellant’s right hand, some 350 particles containing one or two of the three elements were found on his right hand. [at para. 86]

The defence argued that the evidence of the number of one and two particle elements would inevitably and incorrectly lead the jury to conclude that they were deposited by the discharge of a firearm.

The trial judge permitted this evidence to go before the jury. The Court of Appeal agreed and held that:

The expert testified that one, two and three element particles are deposited after a gun is fired. Without evidence of the existence of the one and two element particles, the jury may have wrongly concluded that there were no one or two particle elements deposited on the appellant’s hands and clothing and factored that erroneous conclusion into its assessment of the GSR evidence. The trial judge clearly and accurately described the effect of the evidence pertaining to the one and two element particles and the significance of the expert’s evidence that only three element particles constituted GSR. [at para. 88]

R. v. Hickey, 2014 CarswellOnt 9410 (Ont. C.J.)

Crown Expert: Dr. Elspeth Lindsay

John Hickey and Aldo Simoni were charged with break and enter. They were alleged to have broken into a commercial unit located above a TD bank. The Crown’s theory was that they were two of a group of men that broke into that unit and then broke through the floor of that unit to break into the bank vault. The vault was indeed broken into. Police were called. Police then obtained information that that a GPS unit from the bank was moving outside of the bank. The police obtained GPS coordinates and eventually found Hickey and Simoni in a field — along with the other men who later pleaded guilty. The police seized the clothing of the accused and sent them for analysis along with items seized from the van. The analysis was to compare material found on those items with concrete powder and drywall from the TD bank vault.

The Crown called Dr. Lindsay to give opinion evidence about the materials. Dr. Lindsay was qualified to give expert evidence in the “comparison of materials based on her experience and her qualification as a forensic organic chemist” — the comparison was based on the chemical compositions of the materials [at para. 40]. However, Dr. Lindsay acknowledged that she was not an expert in concrete and she “readily agreed that she could not determine if any specific binders or other chemical properties existed in the TD Bank vault concrete that would be different from concrete that existed at a site where Mr. Simoni was cutting concreted (he works in pacing) or in concrete job sites where Mr. Hickey, who works in renovations, may have cut concrete” [at para. 41].

Dr. Lindsay did testify however that:

. . . concrete dust contains minerals mined from the earth and it is an aggregate of calcium, dolomite, and quartz and cement. Similarly, drywall is readily available and contains gypsum, dolomite and quartz. She was unable to obtain any scientific information prior to testifying about the variability of the core substances in concrete and did not give any evidence about the specific variability of the samples of drywall from the TD Bank samples or the samples containing the dust or particles found on the accused’s clothing. [at para. 43].

Lindsay also testified that the clothes contained more dust than would be expected if the clothes had been laundered [at para. 44]. Lindsay could not “exclude the dust on their clothing as coming from the TD Bank concrete or drywall”.

As a final note, the court commented on one aspect of Dr. Lindsay’s evidence that strayed beyond the scope of her expertise:

The airborne transfer of concrete and drywall dust from tool to clothing that was led through Dr. Lindsay was not pursuant to her qualifications as an expert witness, but through her experience as a ‘home renovator’. This is not a criticism of her evidence, but of the fact that the Crown attempted to elicit evidence from her that was beyond her scope of qualifications that were determined before she testified in her ‘qualification voir dire’. [at para. 48].

6:50 DNA

R. v. Hall, CarswellMan 545 (Man. C.A.)

Crown Expert: Michelle Mascioli

Defence Expert: Dr. William Watson

The facts were succinctly described by the Manitoba Court of Appeal as follows:

Early in the morning of September 27, 2012, the quiet charm of an all-night diner was disrupted by gunfire. While eating with friends, Jeffrey Lau was fatally shot and G.N. was seriously wounded. The masked shooter fled the scene by vehicle. Soon after the shooting, the police found his abandoned semi-automatic pistol (the gun); black fleece gloves (the gloves); and mask, a white tank top (the shirt), near the diner. Deoxyribonucleic acid (DNA) on the items ultimately led police, several months later, to the accused via the National DNA Data Bank. [at para. 1]

The key issue at trial was the identity of the shooter. The DNA evidence featured prominently in the mix of circumstantial evidence identifying the accused as the shooter. Hall was convicted. He appealed. On appeal Hall raised a number of issues including the adequacy of the jury instructions on the DNA evidence.

Michelle Mascioli is a forensic specialist at the RCPM lab in Ottawa. She was qualified as an expert and testified about the 21 samples of DNA on the gloves and shirt. “She concluded that there was a match between the DNA profile of the accused and the DNA found in the other seven samples.” [at para. 18]

Dr. Watson testified it was “likely” that the accused’s DNA was on the gloves and shirt. He came to that conclusion based on the STR analyses Ms. Mascioli conducted on the seven samples (. . .) [at para. 19]

The RCMP lab:

was not told the race of the accused or asked to use a different population database, the default Canadian Caucasian database was used for calculating the RMP of the seven matches. Ms. Mascioli testified that, if the accused was black, the RMPs would have been “different” but still “rare” using the Canadian Black database. [at para. 27]

On appeal the accused made

a barrage of arguments about alleged deficiencies of the jury instructions as to the DNA evidence, only two warrant discussion. He says that the judge failed to fairly and adequately review the evidence as to the limitations of mixed DNA profiles, particularly as explained by Dr. Watson, and also neglected to identify the evidence that supported his defence of innocent DNA transfer. [at para. 142]

The Court of Appeal found defence counsel’s interpration of their own expert’s evidence to be inaccurate:

Defence counsel’s interpretation of Dr. Watson’s evidence at the first pre-charge conference that, “if it’s a mixed profile, you can’t convict. It’s as simple as that”, was not reflective of the expert’s testimony. Dr. Watson testified as follows on what STR analysis and the RMP could establish: “So I would say it’s impossible to tell just from that evidence alone who was involved in the shooting” (emphasis added). [at para. 150]

The appeal was dismissed. The Court of Appeal held:

Perfection is not asked of trial judges. Their duty to decant and simplify the case is just as much about avoiding “over-charging” as it is “under-charging” (Rodgerson at para 50; see also R. v. Royz, 2009 SCC 13 (S.C.C.) at para 2). In my view, taking a functional approach to the jury instructions looked at in their entirety and in the context of the trial, the overall effect of the charge was that the jury was properly and fairly instructed on the DNA evidence. In conclusion, I would not accede to this ground of appeal. [at para. 162]

R. v. Rothgordt, 2014 CarswellBC 1947, 2014 BCSC 1215 (B.C. S.C.), affirmed 2017 CarswellBC 1559 (B.C. C.A.)

Crown Expert: Dr. Greg Litzenberger

The issues at trial related to whether the killing was either self-defence or occurred while Rothgordt was too intoxicated to form the specific intent for murder or was the result of provocation.

Several experts were called at trial. This included Dr. Greg Litzenberger. The court explained his area of expertise as follows: “an expert in interpreting the results of the evidence from the recovery unit’s examinations and interpreting the results of DNA typing analyses, including the application of statistical significance to matches or inclusions found” [para 305]. The defence did not contest the expertise of Dr. Litzenberger.

The expert examined the following exhibits:

#417 — a known sample of Shannon’s DNA

#222 – a known sample of Rothgordt’s DNA

#170 — the hammer found in the kitchen sink of Shannon’s residence

#8 — the condom found on the living room floor of Shannon’s residence

#156 — the piece of gum found in the dining area of Shannon’s residence

#158 — another piece of gum found in the same area of Shannon’s residence

#181 — the cigarette butt found in the bathroom of Shannon’s residence

#208 — the swab taken from the rim of a glass found on the floor (police exhibit #76)

#210 — the swab from the white stain on the seat of the piano bench found in Shannon’s living room (police exhibit #115)

#214 — green tape taken from the leg of the same piano bench

#235 — the swab from the wine bottle attached to the piano bench with the green tape.

The court explained that “[o]ut of the police exhibits submitted for analysis that were found to have sufficient DNA for comparison, there were no profiles found from any individual other than Mr. Shannon and Mr. Rothgordt. In assessing the strength of the DNA evidence, I have considered the random match probability ratios in relation to all DNA considered ”a match,“ but do not consider it necessary to review the evidence with that degree of detail”. [para 305].

Amongst the relevant evidence in relation the DNA the court noted that:

The exterior of the used condom was found to be of mixed origin from two contributors, with Mr. Rothgordt’s DNA being the main contributor; the minor contributor was Mr. Shannon’s DNA. Both Mr. Shannon and Mr. Rothgordt contributed DNA found on the interior of the condom. A positive screening test for semen occurred in relation to the exterior of the condom but it did not test positive for semen. No semen was found on the inside of the condom. [para 308].

And that:

Both pieces of gum (#156 and #158) and the cigarette butt (#181) contained Mr. Rothgordt’s DNA. [para 309].

The court also discussed the evidence of the DNA expert under cross-examination and noted the following relevant aspects thereof:

In cross-examination, Dr. Litzenberger answered a number of general questions about DNA and DNA recovery. A sample containing DNA might not be visible to the naked eye. A deposit of material containing DNA may persist on a surface for a long time. Often if a surface is rough it may be possible to obtain from it a sample containing a DNA profile. Merely walking into a room would not provide DNA but perhaps touching a door handle or sneezing would. He agreed that because of the adhesive quality of tape, DNA on it might persist and at the lab they often use tape to pick up loose cells that might contain DNA. He discussed samples where there is more than one contributor and when it is possible to determine a major contributor. DNA from one person may be deposited on an object and then a fresh deposit of DNA on the same surface may occur. One handler may dislodge the sample from the previous handler. He said the longer something is handled, the more likely he will be able to obtain a profile from DNA; he stressed that there are no hard and fast rules but the time of handling and the intensity of handling are significant; and, once a sample containing a DNA profile has been deposited it may be lost or moved to something else.

Dr. Litzenberger agreed that if someone deposited DNA by saliva and then someone touched the sample leaving blood it would not be possible to tell which DNA came from blood and which DNA profile came from saliva, although one could lean towards blood because it is DNA rich. He said the genetic code contained in DNA looks the same for one person whether it came from blood, skin cells or semen. He was asked about two other samples from the green tape. He confirmed that the sample 18-AF was a mixed origin deposit from two individuals but no blood was found in that sample. He also confirmed that in sample 18-AB, which was of mixed origin consistent with originating from two individuals, no blood was found. The two penile swabs taken from the deceased Shannon (#410) matched his DNA and both tested positive for semen; one tested positive for blood and the other only screened positively for blood. The pubic hair sample taken from the deceased Shannon (#411) was broken down in to a number of sub-samples all of which provided a match with Mr. Shannon’s known DNA except one. That sample (AE) was determined to be of mixed origin consistent with having originated from two individuals, one that matched Shannon’s known DNA, and the other was a trace contributor with limited genetic information, such that no meaningful comparison to known samples could be made. Two anal swabs taken from the deceased Shannon (#416) both screened positive for semen without confirmation; one screened positive for blood and the other did not. The DNA profile obtained matched that of Mr. Shannon. [paras. 315-316]

In relation to facts found by the court that supported the conviction, the court cited the DNA evidence including the fact that the accused was a contributor to the DNA on the condom and that a glass was found to have his DNA [paras 366-367].

R. v. Nendick, 2017 CarswellBC 2353 (B.C. Prov. Ct.)

Crown Expert: William Price

Nendick was charged with 28 criminal offences all of which stemmed from four separate incidents. The charges can be summarized as follows:

Counts 1 to 24 allege that on December 4, 2014, he committed the offense of mischief by puncturing the tires of motor vehicles contrary to section 430 of the Criminal Code.

Counts 25 and 26 allege that on January 1, 2015, he committed the offense of breaking and entering into Capilano University and committing theft and arson contrary to sections 348 (1)(b) and 434 of the Code.

Count 27 alleges that on January 10, 2015, he committed the offence of breaking and entering into an ESSO station and committing theft contrary to section 348 (1)(b) of the Code.

Count 28 alleges that on August 12, 2015, he committed the offense of breaking and entering into Henry’s Grocery Store and committing theft contrary to section 348(1)(b) of the Code. [at paras. 2-5]

DNA was found at all four crime scenes. “The Crown alleges the profiles of these DNA samples match the profiles of the DNA samples taken from Nendick and the circumstantial evidence resulting from the police investigations proves beyond a reasonable doubt that Nendick committed the offenses set out in the Information.” [at para. 6]

William Price, a biologist employed by the RCPM was qualified as an expert and permitted to give opinion evidence in the following areas: “(1) the interpretation of body fluid test results; (2) the comparison of DNA profiles; (3) the application of statistical significance to DNA matches.” [at para. 9]

Mr. Price’s evidence was summarized by the Court as follows:

Mr. Price testified that, in his opinion, the DNA profiles created from the blood samples seized from Nendick matched the DNA profiles created from the blood and biological material seized by the police during their investigations of the incidents as set out in Counts 1 to 28.

Mr. Price testified that the estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same DNA profile as Nendick is one in 290 quintillion with respect to the DNA profiles created from the blood and biological material seized by the police during their investigations of the charges as set out in Counts 1 to 27. A quintillion is a number having 18 zeros.

Mr. Price testified that the estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same DNA profile as Nendick is one in 230 quadrillion with respect to the DNA profile created from the blood seized by the police during their investigation of the charge set out in Count 28. A quadrillion is a number with 15 zeros. [at paras. 10-12]

The Court unequivocally accepted the expert evidence of Mr. Price and found Nendrick guilty of all of the offences charged. [at para. 105]

R. v. Vader, 2016 CarswellAlta 1704 (Alta. Q.B.)

Crown Experts: Vashni Skipper, Vivian Mohrbutter and Janice Rae Lyons

Defence Expert: Randall Libby

Amongst the items gathered by the police were personal belongings of the McCann’s from which DNA profiles — not belonging to the McCann’s — were discovered. At trial the interpretation of the DNA evidence was at issue. Experts were called.

The Crown took the position that the procedures followed were well established and the interpretation of the results were reliable. The defence, while admitting Vader’s DNA was on some of McCann’s property, argued that it was placed there through accidental or innocent transfer and that some of the alleged “matches” are actually inconclusive.

In support of its position the Crown called three expert witnesses. “Vashni Skipper was qualified as a forensic biologist with expertise in the analysis of forensic DNA evidence and identification, interpretation, and comparison of biological materials using those techniques. Vivian Mohrbutter, another forensic biologist, was qualified in the examination of exhibits for biological materials, PCR methodologies, and interpretation of forensic DNA data, including the probabilities of an unidentified third person being an alternative match for an unknown profile. The third expert, Janice Rae Lyons, was qualified as a scientist with expertise in forensic DNA analysis and interpretation, comparisons, and statistical analysis of forensic DNA profiles” [para. 143]. These experts developed the DNA allele profiles for both the known and unknown sources and “evaluated electropherograms to identify allele profiles” [at para. 144].

The Crown also called witnesses who were “forensics DNA technicians”: “Christine Downs, James Cameron Scott, Kelly Coloumbe, Jasmine Robitaille, Mandeep Kahlon, Brett Stefura, Pamela Lilly, and Healther Maria Janssens. These witnesses described their sampling and manipulation of items seized in the investigation of the McCanns’ disappearance. Their evidence and explanations were not challenged” [at para. 145].

The defence called Randall Libby. He “was qualified as an expert in human molecular genetics, forensic DNA analysis, and population genetics. Dr. Libby received a PhD in molecular genetics in 1981, and engaged in a range of research activities in that subject domain. At present he is the co-founder and an employee of a company named SNPgenomics. That company specializes in prenatal genetic testing. He was previously a consultant for GeneQuest Diagnostics. He indicated in the qualification voir dire that he has testified as an expert in forensic DNA analysis in about 150 to 200 court proceedings. Dr. Libby estimated he has testified in Canada 4-6 times. Dr. Libby indicated that when he provides testimony in a court proceeding he is almost always retained by the accused” [at para. 150].

The court summarized a portion of Dr. Libby’s evidence related to his experience:

Dr. Libby testified he has little hands-on experience in DNA forensic analysis because he is not a technician. His experience is “in directing other individuals”. In-laboratory work and analysis is not his role. He also acknowledged that his present specialization is analogous but not the same as forensic DNA analysis. It involves measuring characteristics of repeated genetic sequences, but that is in the context of prenatal genetic disorders, rather than to identify and match unknown DNA samples to specific individuals. However, the methodology and theory for both subjects is essentially the same. [at para. 152].

The court accepted and preferred the evidence of the Crown’s DNA witnesses. “They were cautious and careful. While discussing a technical field they were helpful in how they framed complex issues and facts to assist the Court. They illustrated their reasoning with examples: e.g. Ms. Skipper explained why care should be taken when evaluating smaller electropherogram peaks via comparisons with baseline fluorescence. Their evidence was helpful. When asked to substantiate their opinions these experts referenced their lab records and recorded data and explained their meaning and the reasoning used to build the opinion.

They were careful to identify unusual scenarios which may lead to unexpected or atypical results” [at para. 244].

With respect to the defence expert, Dr. Libby, the court had concerns. “These range from non-answers, what appear to be factual errors, and interpretation of the unchallenged RCMP forensic DNA analysis data which uses loaded language and ignores the obvious, even when this is pointed out in detail. Dr. Libby’s evidence was nothing but ”there might be another possibility“, and yes, in life there are usually other possibilities. Some are more likely than others. However, the standard demanded by Dr. Libby is not logical or reasonable, and the fact he could not explain why his alternatives were plausible illustrates that very fact” [at para. 245]. In the end, although qualified, the court put “no weight” on Dr. Libby’s evidence and explained the reasons for this.

First, as my survey has indicated, Dr. Libby was neither a credible nor a reliable witness. I come to this conclusion because of the general and specific issues I have previously reviewed. For example, to me it is very strange that a proper expert, discharging his Ikarian Reefer obligations, could review the Boag’s hat mixed profile data and not make a simple observation: Mr. Vader’s allele profile is present en toto, except for one allele. To instead announce “half the test failed to produce results” and say those gaps are “disturbing” and “troubling” can only be explained as an active attempt by the expert to mislead the finder of fact. Dr. Libby re-framed his analysis in a manner that guides the finder of fact, me, who depends on his expertise, down a blind alley and away from the core question on which he was to assist: is that Mr. Vader’s biological material on Lyle McCann’s hat?

I reject that Dr. Libby was a “witness for the court”. He was an advocate for Mr. Vader. Dr. Libby was admitted as an expert, but did not conduct himself as an expert should. I do not reach this conclusion lightly, but only after very careful review of Dr. Libby’s testimony and in light of his previous appearance in this Court. As I noted earlier, there is a pattern here.

Dr. Libby was not an independent expert but instead acted as a hired gun for the Defence. He was qualified as an expert but did not conduct himself in that role. I therefore place no weight or value on his opinion evidence and his interpretation of whether Mr. Vader’s DNA was recovered from the McCann SUV and its contents. [paras. 247-249]

The court also rejected the submission that there was contamination.

R. v. Keats, 2016 CarswellNS 1077 (N.S. C.A.)

Crown Expert: Katherine Murphy

Crown Expert: Ms. Janssens

Keats was found guilty after trial of sexual assault. In convicting the trial judge relied on evidence that Keats’ semen was discovered on swabs taken from the complainant’s vagina. Although, at trial Keats did not object to the admissibility of this evidence on appeal he argued that the evidence was inadmissible hearsay.

In dealing the appeal the Court noted:

[t]he foundation for the enigma was laid, at least in part, by what appears to be a growing trend of trying to introduce expert opinion evidence by way of an omnibus expert’s report. I agree with the appellant — the icing on the forensic cake was supplied by careless presentation of the Crown’s case. [at para. 4]

Katherine Murphy testified as a forensic laboratory specialist qualified as an expert in “the interpretation of body fluid and hair examination results, the interpretation and comparison on human DNA typing profiles, and the application of statistical significance to forensic DNA typing.” [at para. 27]

As part of her evidence at trial Ms. Murphy’s three reports were filed as exhibits. The thrust of these reports was that the seminal fluid found in the complainant’s vagina ‘matched’ the DNA profile of Keats.

At trial the admissibility of the reports and Ms. Murphy’s evidence at trial was not contested. On appeal however Keats argued that:

the trial judge was legally wrong to rely on the semen evidence because Ms. Murphy’s report, and her viva voce testimony about semen, were inadmissible as hearsay.

Ms. Murphy had no first-hand knowledge of the existence or absence of semen. She was called to present the DNA evidence, not offer expert opinion evidence about semen being found by a search technologist working in a laboratory in Edmonton. [at paras. 74-75]

Ms. Janssens was qualified as an expert in “recovering and identifying significant biological material, including, of course, semen and spermatozoa.” At para. 76. During the course of her evidence:

Ms. Janssens was never asked by the Crown the steps and processes involved in examining the exhibits for the presence of biological material. Nor did she in fact specifically testify that she observed spermatozoa. The Crown merely asked Ms. Janssens to identify the presence of her notes in Ms. Murphy’s bundle of paperwork. At no time, did she adopt those notes as part of her testimony. [at para. 78]

The Court of Appeal first noted that there was no doubt about:

the soundness of the proposition that an expert can rely on matters or sources within his or her field of expertise in the proffering of their opinion. But in the circumstances of this case, it does not make Ms. Janssens’ observations admissible via Ms. Murphy’s reports. [at para. 82]

Second, the Court of Appeal explained that in this case “the work done by Ms. Janssens, and the application of her skilled knowledge and training to find semen, was not relied upon or used as a building block for Ms. Murphy’s opinion.” [at para. 90]

Third, the Court of Appeal referred to Ms. Murphy’s evidence that she was not an expert in semen and thus the value of her evidence that there was semen on the vaginal swab was of little value.

These points could of course lead to the conclusion that the defence appeal should succeed, however, the Court of Appeal went on to explain that notwithstanding these limitations in the Crown’s case, Ms. Janssens’ notes as detailed in Ms. Murphy’s report were admissible “based on both the modern view of the admissibility of hearsay, and the common law exception for business records.” [at para. 92]

The appeal was dismissed.

R. v. Gill, 2016 CarswellBC 3225 (B.C. C.A.)

Crown Expert: Trevor Price

Gill was convicted after trial of dangerous driving, failing to stop for police and later of driving while disqualified. The central issue at trial was the identity of the driver of the vehicle. To prove that Gill was the driver the Crown relied on:

(. . . ) the from various police officers who were involved in what became a police chase of the Acura; the testimony of a Ms. Peacey, who had been a passenger in the Acura during the chase until it crashed into a phone booth and the driver ran away; and evidence from two experts tendered by the Crown. [at para. 4]

Gill appealed his convictions.

Trevor Price was qualified as an expert in the “interpretation of body fluid identification test results, the interpretation and comparison of DNA profiles, and the application of statistical significance to DNA matches.” [at para. 5]

Mr. Price testified that he identified a DNA profile from the air bag which deployed during the accident and analyzed the DNA as being Gill’s. Defence argued that the DNA could have been the result of a secondary transfer and that this was a real possibility given that Gill’s father was the registered owner of the vehicle.

The trial judge concluded that:

On the totality of the evidence, being the identification of Constable Rhode who had dealt with Mr. Gill over a number of years, a number of contacts, some of which were lengthy, and his in-court identification of Mr. Gill, and Mr. Gill’s DNA on the Acura’s driver’s side airbag, which could only have been deposited there during manufacture or deployment, it seems to me that in this circumstantial case, the only rational conclusion on all of the evidence I have heard is that Mr. Gill was driving the Acura, and so consequently, I convict Mr. Gill on Counts 5 and 6: failing to stop for police and dangerous driving. [at para. 15]

On appeal Gill argued that the trial judge misapprehended the expert evidence. The Court of Appeal rejected this argument and held that there:

(. . . ) no misapprehension of evidence on the part of the trial judge. Again, her conclusion was based on the totality of the evidence — including direct evidence of Cst. Rhode, who had known Mr. Gill for some years, as to identity — not simply the DNA evidence. Second, as para. 54 demonstrates, the trial judge was clearly open to the possibility of a secondary transfer of DNA evidence. However, she was also obviously of the view that it was more likely DNA had been transferred during the collision from Mr. Gill onto the airbag, and emphasized that the “AC” area of the airbag was in the top quadrant “where a face would normally contact the airbag.” In all these circumstances, she was satisfied beyond a reasonable doubt that the driver of the car had been Mr. Gill.

R. v. Richard, 2016 CarswellMan 449 (Man. Q.B.)

Crown Expert: Florence Celestin

Richard was charged with second degree murder of a young woman, Ms. Hornbrook. Death was caused by multiple and severe blunt force injuries to her head. Video surveillance revealed Richard and the young woman were together near where her body was found. The issue at trial was whether Richard was the person who caused the victim’s death. The victim knew Richard and had a sexual relationship with him prior to her death. The Crown theory was that on the night of the murder the victim was out drinking with Richard and had refused to have sex with him. When she turned down his sexual overtures the Crown argued that Richard took her outside where they were captured on video and stomped her to death near a warehouse where she was ultimately found.

In support of this theory the Crown called DNA expert Florence Celestin. Ms. Celestin was qualified as an expert in forensic DNA analysis and prepared four reports in relation to a number of items that were seized from the scene and from Richards.

The first report dealt with Richard’s shoe and staining believed to be blood on the wall at the warehouse. Ms. Celestin concluded that:

there was blood on the middle instep and top tongue areas of the left shoe and in some of the staining on the wall. She opined that the blood on the middle instep of the shoe was that of Ms. Hornbrook (each time she identified Ms. Hornbrook’s blood on a particular item, she did so based on the estimated probability of the blood belonging to someone else — which ranged from 1 in 130 million to 1 in 1.4 trillion, depending upon the item). Ms. Celestin also found that the blood on the top of the tongue area was of mixed origin from two individuals, with the majority being that of Ms. Hornbrook. [at para. 19]

In the second report Ms. Celestin dealt with additional items seized and the significant findings related to the victim’s blood being found on Richard’s right shoe.

In her third and fourth reports Ms. Celestin was able to find and identify additional blood stains located on the left shoe as belonging to both Richard and the victim.

Richard testified and offered an explanation as to how the victim’s blood came to be on his shoes. He explained that he was close by when the victim was stuck in the face by her boyfriend. The blow drew blood and Richard’s feet were extended toward the victim when this occurred. [at para. 41]

The trial judge rejected Richard’s evidence on this point:

(. . .) in terms of my concerns, Mr. Richard’s evidence with respect to how Ms. Hornbrook’s blood came to be on his shoes is simply not credible. He testified that he never saw blood on her prior to that night; therefore, he says that the only opportunity for her blood to get onto his shoes was when she was bleeding while sitting across the table from him after being struck by Mr. Flett. However, on cross-examination, he said that Ms. Hornbrook was not actually slapped by Mr. Flett but rather Mr. Flett only raised his hand to her, which did not draw blood. He explained that it was only the assault by elbowing that caused her to bleed. And the video surveillance shows that he was at the table for only about one or two minutes after Ms. Hornbrook was elbowed and before he went inside. Furthermore, his testimony that his legs were extended under the table is inconsistent with the video which shows him sitting upright. He explained that he extends his legs even when sitting upright. However, again, the video does not show this; on cross-examination, he was shown video of him sitting upright later that night at about 11:23 p.m., and his legs appear to be bent under him. Finally, in order for Ms. Hornbrook’s blood to get onto his shoes, it seems that it would have had to make its way past her hand, which was on her temple, and the table. [at para. 59]

The expert evidence in this case was uncontroverted, accepted by the trial and formed a powerful body of evidence which the accused had to try to respond to. Ultimately, Richard was convicted as charged. [at para. 97]

R. v. M. (W.E.), 2015 CarswellAlta 16 (Alta. C.A.), leave to appeal refused 2016 CarswellAlta 426, 2016 CarswellAlta 427 (S.C.C.)

Crown Expert: Dr. Green

MWE was convicted of sexually touching his stepdaughter. He appealed. One of the grounds of appeal was that the trial judge improperly relied on the expert DNA evidence.

Dr. Green testified that MWE’s DNA was “detected on a swab taken of the complainant’s buttock” and “that semen was present on the complainant’s buttock.” [at para. 5]

The Court of Appeal dismissed the appeal finding specifically that the trial judge’s use of the expert evidence was unassailable. [at para. 9]

The Defence argued that the Dr. Green’s opinion that MWE’s DNA was present on the victim’s clothes does not advance the case for the crown as there was no evidence that the clothes tested were worn during any of the assaults. [at para. 40] The Court of Appeal however noted that this fact doesn’t assist the appellant either and nor does it “undo the damage done by other aspects of Dr. Green’s evidence.” [at para. 41]

This body of evidence was described by the Court as follows:

Dr. Green opined that the appellant’s DNA was detected on a swab taken from the complainant’s buttock. The presence of the appellant’s DNA on the complainant’s buttock and the complainant’s evidence that the appellant contacted her in this area when he was in her bed on the night of August 24, 2011 provides the evidentiary platform which supports the inference that the appellant’s acts on the night of August 24, 2011 caused his DNA to be placed there. [at para. 41]

R. v. Tse, 2013 CarswellBC 679 (B.C. C.A.)

Crown Expert: Mr. Saul

Defence Expert: Dr. Wayne

Doan and Soux were convicted of a number of offences arising out of a kidnapping, forcible confinement and extortion plot. The two were among six accused charged on the indictment. Doan appealed arguing, first, that the trial judge misapprehended the expert DNA evidence. Second, that the trial judge erred by failing to give reasons for rejecting the expert DNA evidence. [at para. 5]

The DNA evidence was located in a number of garbage bags found at the place where the victims had been held. Some 30 such bags had been stockpiled over the course of the confinement. Within the bags officers found used duct tape, which in turn had DNA on it.

Soux appealed on the basis that the trial judge reversed the burden of proof in assessing the defence expert evidence or by “failing to accept that it raised a reasonable doubt.” [at para. 6]

The main question about the DNA evidence was whether the “DNA on the duct tape could have been the subject of secondary transference”. [at para. 17]

The Court of Appeal extensively summarized the evidence of each of the experts and concluded that:

the judge just did not accept the theory of accidental transference. (. . .) There was a body of evidence that amply supported his conclusion that the DNA on the tape came directly from the donor and not by accidental transference. Accordingly, we see no basis to interfere with the judge’s factual conclusions. [at para. 31]

Moreover, the Court held that:

It appears to us that the judge considered the alternative explanation that the DNA was deposited by accidental or secondary transference to the duct tape in the pattern found by the forensic examiners, because that was the theory posited by the defence. He then concluded that accidental transference was improbable. His conclusion on the theory advanced by the defence does not demonstrate a reversal of the burden of proof. [at para. 33]

Lastly with respect to the argument that the trial judge failed to give adequate reasons for rejecting the defence expert evidence, the Court held:

[t]his submission relies upon an over-reading of Dr. Waye’s evidence, in our view. While Dr. Waye did proffer the single statement that transference from a toothbrush was “likely”, a review of all his evidence reveals his view of the conditional nature of the possibility of secondary transference to all three pieces of DNA-bearing duct tape in the patterns found by forensic examiners. On balance, his entire evidence can only be seen as equivocal, and not diametrically opposed to that of Ms. Saul. [at para. 35]

R. v. C. (M.M.), 2014 CarswellOnt 5079 (Ont. C.A.)

Crown Expert: Ms. Henry

CMM was convicted of sexual assault and sexual exploitation. His victim was his neighbour’s five-year-old daughter. Forensic evidence tendered by the Crown revealed the presence of CMM saliva on the little girl’s underwear. CMM appealed the convictions and argued that the trial judge misapprehended the expert evidence.

Ms. Henry examined the victim’s underwear; two areas tested positive for CMM’s DNA. In Ms. Henry’s opinion the source of the DNA was saliva. Ms. Henry’s evidence detailed the different amounts of DNA and whether it was present on the inside or the outside of the underwear.

In giving effect to CMM’s appeal, the Ontario Court of Appeal noted that the trial judge completely failed to distinguish between the:

three relevant areas of the underwear, which were tested by the expert. Specifically, the appellant’s DNA was located on the front panel and waistband; not in the crotch area. Her “322 nanogram finding of DNA in the crotch area”, again, was recovered from the front panel; not the crotch. And, less importantly, the waistband deposit was described by Ms. Henry as “moderate”, not “significant”.

Further, the trial judge appears to misunderstand the evidence when she wrote that the 322 nanogram DNA deposit is too much to be the subject of transference. The hypothetical the Crown provided to the expert presupposed both that the saliva had dried before transference and that the entire quantity of the 322 nanograms was the appellant’s DNA. Ms. Henry’s evidence was that transference would occur more readily if the saliva were wet. [at paras. 40-41]

The Court of Appeal found that these misapprehensions of evidence played an essential part in the trial judge’s reasoning and as such ordered a new trial.

R. v. Grant, 2013 CarswellMan 525 (Man. C.A.)

Crown Expert: Dr. Amarjit Chahal

Defence Expert: Dr. John Waye

In 1984 a 13-year-old girl went missing. A few months later her body was found hogtied and frozen in a shed in an industrial area. Grant was arrested in 2007 and charged with her murder. Newly obtained DNA testing matched hairs found on the girl and DNA on twine used to tie her up to the accused’s DNA.

Dr. Chahal opined that “the probability that a randomly selected and unrelated person other than the accused being a contributor to the mixed DNA profile from the twine” was one in 50 million.

In contrast, Dr. Waye, for the defence, opined “that the scientific approach by Dr. Chahal was faulty and that the accused should have been excluded by the DNA evidence.” [at para. 5] Dr. Waye was unable to do his own testing as the samples had been used by Dr. Chahal’s testing. [at para. 5]

Grant was convicted; he appealed. One of the grounds of appeal was that the instructions to the jury did not adequately deal with the DNA evidence. Among the defence grievances with the charge was the fact that the “judge’s instructions were not specific enough in explaining how the statistical evidence derived from DNA should or should not be used.” [at para. 39]

Although the Court of Appeal had “some concerns about the verdict given the DNA evidence, those concerns do not permit appellate intervention.” The Court granted the appeal on the basis of another ground unrelated to the expert evidence.

R. v. Gabriel, 2014 CarswellQue 4902 (C.S. Que.)

Crown Expert: Dominique Roberge

Gabriel was charged along with two others with first-degree murder and attempted murder. The defence sought to exclude a portion the DNA expert’s testimony. Specifically, the defence argued that “the statistical conclusions found in Ms. Roberge’s reports be excluded, along with her explanation of these statistical conclusions.” [at para. 4]

The Court dismissed the motion and held that the points raised by the defence do not warrant exclusion but rather would more properly form part of the cross-examination of the expert. [at para. 35]

The Court was:

convinced that the DNA evidence to be given by Ms. Roberge, a qualified expert in the field, is both relevant and necessary in its entirety, and also that it does not contravene any exclusionary rule. [at para. 41]

R. v. Prosser, 2015 CarswellNB 37 (N.B. C.A.), leave to appeal refused 2015 CarswellNB 276, 2015 CarswellNB 277 (S.C.C.)

Crown Experts: Joy Kearsey; Curtis Hildbrandt

Prosser was charged with first-degree murder, sexual assault causing bodily and sexual assault. DNA evidence was tendered by the Crown, which linked Prosser to the death of the victim. Prosser was convicted and appealed. One of the grounds of appeal was the trial judge’s instruction to the jury on the DNA evidence.

During the voir dire to qualify, the experts defence counsel cross-examined extensively on the qualifications of the proposed experts but ultimately consented to having both qualified as experts “capable of given the opinion evidence contained in their reports.” [at para. 22]

The defence argued at trial and on appeal that the factual underpinnings of the DNA evidence had not been adduced and thus the jury should’ve been instructed to give the opinions no weight. [at para. 27]

The Court of Appeal held that:

By consenting to the admissibility of the DNA evidence, it is a reasonable inference the appellant is conceding the opinion evidence is relevant to a material issue, the witness is qualified to give opinion evidence relating to the subject matter of opinion evidence sought to be admitted and finally, the proposed opinion does not run afoul of any exclusionary rule. Of course, consent to the admissibility of opinion evidence does not relieve the trial judge of his function as “gatekeeper”. Thus, the primary responsibility to ensure that the pre-conditions to admissibility exist rests with the trial judge

(. . .)

However, the consent to admissibility has an impact on the issue being discussed. Recall the appellant is arguing that the necessity to instruct the jury as he suggests emanates from the danger inherent in DNA evidence on the issue of identity. However, the accuracy of the DNA evidence was not challenged except by the appellant’s speculation that contamination was a possibility as the laboratory technicians did not testify. Finally, the DNA evidence was not challenged or opposed by other experts and was admitted without opposition. [at para. 33]

The Court of Appeal dismissed the appeal.

R. v. L. (J.), 2015 CarswellOnt 18071 (Ont. C.A.)

Crown Expert: Brian Peck

JL was charged with sexual assault related offences including offences under ss. 271, 151 and 153(a) of the Code. The alleged victim was the daughter of the accused. She was four years old at the time of the alleged offences.

At trial, the Crown filed the report of an expert in DNA, Brian Peck. His evidence “indicated that a large deposit of the complainant’s saliva was found in the crotch of the appellant’s underwear” [at para. 2]. The report stated in detail the following:

The DNA profile from the amylase positive area on the front/crotch area of the underwear (1-1) from [the respondent], is a mixture of the DNA from at least two individuals, at least one of whom is female and one of whom is male:

• A major female DNA profile (Profile #1) has been determined, at 15 STR loci, and is suitable for comparison. [The complainant] cannot be excluded, at 15 STR loci, as the source of this DNA profile.

The probability that a randomly selected individual unrelated to [the complainant] would coincidentally share the observed DNA profile is estimated to be 1 in 400 quadrillion.

• The minor amount of DNA detected is not suitable for comparison due to the low amount present and uncertainty with respect to the total number of contributors.

[Emphasis in original; footnotes omitted.]

The trial judge acquitted JL. In doing so, the court held that “there was no physical or forensic evidence that could buttress the Crown’s theory that the accused admitted [committed] the alleged offences against his daughter” [at para. 3]. The Crown appealed arguing that this finding demonstrated a misapprehension of the evidence and was in error. The Court of Appeal agreed:

This statement reflects a misunderstanding of the forensic evidence and, in particular, the fact that the complainant’s saliva was positively identified on the appellant’s underwear. It also reflects a misunderstanding of the ability of that evidence to confirm the evidence of the complainant that the respondent put his penis into her mouth [at para. 4].

6:60 Fingerprints

R. v. Szostak, 2014 CarswellOnt 161 (Ont. C.A.), leave to appeal refused 2014 CarswellOnt 16347 (S.C.C.)

Crown Expert: Detective Giuliani

Philip Szostak was charged with numerous violent offences. Relevant facts related to two dates, August 2008 and August 2009. With respect to the latter date, the court summarized the evidence as follows:

In the summer of 2009, the appellant had recently been released from jail on an unrelated matter. He claimed that the complainant owed him money because he had taken two bikes that the appellant’s grandmother had been keeping for him. The complainant claimed that he was entitled to the bikes because the appellant had his stereo system. On the evening of August 14, 2009, the complainant and a friend went to the beer store. The complainant had a kitchen knife with him for protection because the appellant was looking for him. By coincidence, the appellant came to the same beer store. When he entered the store, he saw the complainant and immediately left and waited outside. When the complainant left the store, the appellant approached him, put his left hand on the right side of his face said, “Tough guy, eh?” and using a small pocket knife, slashed the left side of the complainant’s face. The appellant then left.

The complainant claimed that he never had a chance to use his knife. The complainant was bleeding heavily. He realized the police would be coming so he put his knife around the side of the beer store. At the time he was subject to a life-time weapons prohibition. The complainant returned to a grassy area near the store where a woman (Jill Gorle) helped him until the police and ambulance came. Ms. Gorle, who saw most of the encounter between the appellant and complainant, gave an account that was generally consistent with the complainant’s account, although she did not actually see the appellant with a knife.

The appellant testified that he waited outside the store intending to ask the complainant for some money for the bikes. He denied having any weapons. When the complainant came out of the store, there was a brief verbal exchange and then the complainant pulled a large butcher knife out of his pants. The appellant jumped on the complainant and wrapped his left arm around the complainant’s neck. He used his right hand to grab the complainant’s wrist that was holding the knife. When the complainant took a step forward, trying to escape, the knife cut the complainant’s face. The appellant jumped into his vehicle and left. He was not supposed to be at the beer store and did not want to get caught there.

According to the complainant, about two weeks later the appellant called him several times threatening that if he showed up at trial he would assault him and come after his family. These calls were the basis of the obstruction of justice and threatening charges. The appellant was on several probation orders in 2008 and 2009; hence the breach of probation charges. [Paras 6-9].

Szostak was convicted after trial. He appealed. With respect to this incident, he argued that the trial judge erred in relation to the evidence of Detective Giuliani — a witness qualified to give expert evidence in relation to fingerprints.

The court noted the following as the critical aspect of the expert’s evidence:

Detective Giuliani introduced some photographs of the scene and explained where the kitchen knife had been found at the side of the beer store. He then went on to testify that he had examined the kitchen knife for fingerprints and found no prints. Without objection he also testified that while using various light sources to check for prints, he had looked for other fluids, including blood. He testified that he “[d]idn’t see anything that appeared that there was any blood on the knife.” He continued then to testify only about fingerprints and when they could be left on various surfaces. However, the last question asked the officer if there was any difference “in terms of blood versus fingerprints in terms of wiping away the evidence”. The officer replied that “[b]lood is very difficult to just wipe away. . . . It’s not something that could be easily or quickly done.” Defence counsel in cross-examination immediately focused on the issue of blood on the knife. She questioned the officer in considerable detail as to the tests he had performed to see if there was blood on the knife. He explained that he had used various light sources which were all negative for blood. The cross-examination concluded with this exchange:

Q. If a bloody hand that had been clutched to a face and blood is seeping through the fingers, and that bloody hand then reaches and grabs a handle of a knife, pulls it out of a pocket and belt and discards it, would you likely be able to find traces of blood on that knife, having gone through that process?

A. I’d expect to see some stains on there, yes.

Q. Unless it was wiped very clean, correct?

A. Yes. [Para 16].

The trial judge relied, in part, on this evidence and concluded that if the expert found “no visible blood” on the knife it is hard to accept that there was blood on it as it was “unlikely that the knife could have been meticulously cleaned of blood in the short time that [the complainant] had to dispose of it. Detective Giuliani testified that it would be difficult to remove all traces of blood from the knife.” [para 17].

Szostak argued, on appeal, that the trial judge erred in so finding as the expert was not qualified to testify about blood. The Court of Appeal rejected this position:

I would not give effect to these grounds of appeal. As to the expert evidence, it is apparent that the decision not to object to the officer’s evidence about blood was tactical. As the final exchange with the officer shows, defence counsel sought to use the absence of blood on the knife as evidence undermining the credibility of the complainant. We have not been provided with any evidence that shows Detective Giuliani was not qualified to give the opinion that he did or that anyone was misled by his evidence.

I am also satisfied that the trial judge did not misapprehend Detective Giuliani’s evidence. On appeal, counsel argued that the trial judge misapprehended the evidence because he referred to “tests for trace evidence”. Counsel submits that this is not an accurate reflection of the officer’s evidence and that he only did tests with various light sources. In my view, the trial judge accurately summarized the evidence. In fact, the trial judge’s reasons accurately tracked the officer’s answers in cross-examination:

Q. All right. Did you use a multi-step process on this particular knife?

A. I used visual with various light sources and once that was negative I stopped the test.

Q. Okay. So you’ve got no trace of blood on the handle of the knife?

A. That’s correct.

[Emphasis added.] [Paras 19-20].

R. v. Gambilla, 2015 CarswellAlta 718 (Alta. Q.B.)

Crown Expert: Cpl Heidi Godden; Cpl David Westin

Dennis Gambilla and Myriam Mamouni were both charged with importing and possession for the purpose. During the investigation the police seized numerous items that were relevant to identification of Gambilla and Mamouni and their connection to the cocaine that was the subject of the prosecution. Included in those items were materials which were examined for fingerprints. Cpl Godden and Cpl David Westin were both qualified as experts in the collection, preservation, processing, identification, examination, analysis, and comparison of human fingerprints and human fingerprint characteristics.

The court also discussed the issue of bench notes, recommendations about taking same and the practice of Cpl Godden:

As with all her analyses of fingerprints, Cpl Godden started by analyzing R7G. She had not yet examined the fingerprints on Form 1-G. When she undertakes her analysis, she makes what she referred to as “bench notes.” These are her observations of the latent fingerprint and such things as the substrate and its characteristics. During cross examination, counsel pointed out that David Ashbaugh, a RCMP officer who has researched and written in the area of friction ridge analysis, recommends that an officer’s bench book must be as detailed as possible when analyzing a latent fingerprint. It would include, for example, established routes for each friction ridge and the flows of the ridges. The analyst must note any “red flags,” such as ridge disturbances, misaligned ridges, or angular joints. Cpl Godden’s bench notes contained some detail, but not the level of detail that Ashbaugh recommends. Cpl Godden testified that the details that Ashbaugh suggests are those that she considers throughout her analysis. Each detail cannot be considered in isolation. She analyzes discrepancies by way of a tolerance level. Writing the details down will not protect against bias because, in the end, the analyst must still justify her findings. As well, the photographs of the fingerprints contain all the information that any person may observe. In other words, the fingerprint itself contains the details to which Ashbaugh refers.

She does not undertake a “tracing” of friction ridges. In her view, this does not protect against bias and adds nothing to her comparative analysis. Her study of the latent fingerprint allows her to be aware of the fingerprint itself and what it contains. The recording of bench notes is not necessary, in her mind, to understand what is in the fingerprint. [Paras 162-163].

An issue arose in relation to the comparison done by Cpl Godden. In short, the issue was that the initial Form 1-G which was used for comparison by the officer to the suspect print was “incomplete”. Cpl Godden’s approach to this issue was explained by the court and noted that under both approaches her opinion was the same — and was unaffected by the incomplete:

Form 1-G contained individual “rolled” fingerprints, as well as “flat” fingerprints. It had Gambilla’s name handwritten on it. Form 1-G was incomplete, as it did not contain all the information on the form that she usually sees. Despite this, she used the information on Form 1-G to do her analysis. She handwrote her initials on Form 1-G, along with the date on which she undertook her analysis, which was September 10, 2010.

[ . . . ]

She reached the conclusion that R7G was positively identified to Known-G, the left thumb impression on Form1-G. Her conclusion reads as follows:

The latent impression marked R7 that was located on the piece of plastic toy packaging was positively identified to the left thumb impression on a fingerprint form (C-216) bearing the name of Dennis Anambono GAMBILLA / Date of Birth – May 25, 1983: FRAR-G, under heading “Conclusion.”

Because of her concerns with the absence of certain information on Form 1-G, the Crown’s counsel asked Cpl Godden to undertake a further comparison of R7G and fingerprints on a RCMP form C216. This Court will refer to that form as “C216-G1.” She received the C216-G1 from Cpl Westin and took a photograph of it. The photograph was made an exhibit in these proceedings. The C216-G1 was completed and included the CPS as the “contributing agency,” the signature of the person who took the fingerprints, that person’s regimental number, and the date on which that person took the fingerprints. There was a signature in the space headed “Signature of Person Fingerprinted.” The demographic information of that person also appeared on the C216-G1. A photograph of the C216-G1 that Cpl Godden used for her further comparison was made an exhibit in these proceedings.

She conducted her analysis by comparing the R7G to left thumb impression on the C216-G1, using the same methodology that she had used previously. Her conclusion was that R7G was positively identified to the left thumb impression on the C216-G1. The C216-G1 identified the person fingerprinted as Gambilla, Dennis Anambono. The C216-G1 also contained his demographic information and his photograph. Cpl Godden did not have this second analysis verified.

When questioned why, although she used Form1-G to undertake her initial comparison, she was uncomfortable using that form alone, she said that she felt it was important for her to use a completed form. However, she also stated that this information was not relevant to her comparison. [Paras 161, 166-169]

With respect to the work done by Cpl Westin, the court noted that there were three relevant examinations conducted. They included:

— An examination of a plastic bag in relation to which the court noted: “Because the substrate of the exhibit was plastic, Cpl Westin processed the exhibit using the fuming method with cyanoacrylate, as described by Cpl Godden. He applied the ”brilliant yellow“ dye to further enhance the fingerprint image and took photographs of the fingerprint image. The photographs were also entered as exhibits in these proceedings” [para 178].

— An examination of a birthday card envelope using ninhydrin [paras 194-195];

— An examination of some plastic, in relation to which Cpl Westin “used the cyanoacrylate fuming technique to expose” [para 200].

Cpl Westin made positive identifications from each.

R. v. Rothgordt, 2014 CarswellBC 1947, 2014 BCSC 1215 (B.C. S.C.), affirmed 2017 CarswellBC 1559 (B.C. C.A.)

Crown Experts: Cpl Sean Allen; Sgt Alain Richard

The issues at trial related to whether the killing was either self-defence or occurred while Rothgordt was too intoxicated to form the specific intent for murder or was the result of provocation.

The investigation involved the use of several experts. One of those was Cpl Sean Allen. The court explained his qualifications as an expert as follows:

[. . .] qualified to provide expert evidence in relation to the discovery and identification of fingerprints, more specifically called friction ridge analysis, which relates to prints from hands, palms and the soles of the feet. He is a designated fingerprint analyst pursuant to s. 667(5) of the Criminal Code. He is also qualified as a senior forensic officer, qualified to provide expert evidence in court. [Para 256].

Cpl Allen conducted a thorough examination of the scene where the killing occurred. His evidence included the following:

— A fingerprint was identified on a wine bottle that was “matched” to a known print of the accused’s middle finger. The bottle was found on a glass table in the living room which was noted to be in complete disarray [para 259]

— A fingerprint was identified on a can of Schweppes ginger ale on the dining room table; this print was matched to the accused’s right thumb [para 264]

— On a plate in the living room, under a jacket, three “prints” were identified including a print matched to the accused’s middle finger, a print matched to the accused’s left palm and a print matched to the accused’s right index finger [para 274]

— A piece of glass in a bedroom was found to have a fingerprint that matched the accused’s left palm [para 276]

— In the closet a rod was found to have a fingerprint that matched the accused [para 279]

— A piece of mirror, which included a piece found in the area of the victim’s face, had a fingerprint on it that matched the accused [para 284]

Cpl Allen further testified that all identifiable prints located matched either the victim or the accused [para 294].

Sgt Alain Richard also testified as an expert in relation to fingerprints. His evidence, in relation to fingerprints, focused on prints identified on a wooden chest in the bedroom and the doorframe to the closet in that room [para 295]. The results of that examination were summarized by the court as follows:

Staff Sgt. Richard also assisted in the investigation of the wooden chest in the bedroom (Exhibit 44, Photos 22-25A), initially found by police with its lid open. On the edge of the lid of the chest Staff Sgt. Richard found a partial palm print, labelled R11, which he identified as being made by Mr. Rothgordt’s right hand. In the middle of the impression was a blood stain. Staff Sgt. Richard could not say which was made first, the palm print or the blood stain, but he did say that given the shape of the blood stain it could not have been deposited when the lid was open. If the bloodstain was made first then it would have dried before the palm print was deposited. On a closed lid the location of the blood stain was consistent with the blood stain having originated from the area of the bed.

Staff Sgt. Richard also lifted two partial palm prints from the left side of the door casing to the closet in the bedroom, R17 and R18 (Exhibit 44, Photos 26-31); he identified both as being made by Mr. Rothgordt’s left palm. [Paras 300-301].

The fingerprint evidence was part of the body of evidence relied upon by the court in conviction Rothgordt. This included the following point:

In terms of Mr. Rothgordt’s general lack of credibility, I find he told many conflicting and obviously untrue things to various people:

[ . . . ]

• He denied covering up Mr. Shannon’s body when his fingerprints were found on the piece of broken mirror glass place right next to Mr. Shannon’s face. [Para 392].

R. v. Archie, 2014 CarswellBC 4133 (B.C. S.C.)

Crown Expert: Sergeant Bouman

Crown Expert: Corpral Mancini

Archie was charged with sexual assault. He elected to have a trial by judge and jury. A voir dire was conducted to determine the admissibility of the fingerprint evidence the Crown intended to lead at trial.

Archie took no issue with the qualifications of Sgt. Bouman or Corporal Mancini but rather contested its admissibility on the basis that it was not reliable and that there was institutional bias given that the experts were police officers. Sgt. Bouman lifted three prints from a bottle of vodka. Two of the lifts were suitable for analysis. Sgt. Bouman compared the lifted prints to the known prints of Archie; he opined that the prints matched. [at para. 6] Corporal Mancini acted as the verification officer.

Sgt. Bouman and Corporal Mancini were both qualified as experts in fingerprinting and permitted to give opinion evidence in the “taking, locating, collecting, preserving, analyzing, and comparing and identifying fingerprints and latent fingerprints.” [at para. 5]

Sgt. Bouman was cross-examined on a number of points on the voir dire including the reliability of fingerprint analysis. Sgt. Bouman agreed “there was a possibility that errors can be made and indeed have been made. An incorrect conclusion can lead to the examiner losing his or her designation as a fingerprint expert.” [at para. 7]

“Sergeant Bouman testified that it was not necessary to have a full fingerprint in order to identify a match for that print. He described the verification process whereby another fingerprint examiner with the same or more training provided a review of his work.” [at para. 8]

Corporal Mancini testified that she performed a verification of Sgt. Bouman’s work and that she confirmed his analysis. [at para. 8]

The Court concluded that the evidence was reliable and admissible. The Court held:

I do not find any concern of institutional bias. The evidence of Sergeant Bouman and Corporal Mancini did not provide any indication that their analysis or testimony was shackled by fear of losing their positions.

There is no indication that the methodology used by the examiners was flawed. Sergeant Bouman examined 13 fingerprints. He found that several were unsuitable for analysis. He was able to analyze five prints that matched the known prints.

I conclude that the examiner was careful in his analysis and did not reach to find matches. [at paras. 13-15]

Moreover the Court held that there was no evidence presented to show that fingerprint evidence is unreliable. And “[w]hile here may be a dialogue questioning the reliability of fingerprint evidence, that is far different than having evidence presented in court to support the suggestion that fingerprint evidence is unreliable.” [at para. 19]

Ultimately, the Court concluded that:

[t]he presentation of fingerprint evidence will not distort the fact-finding process. The jury will be given the appropriate caution with respect to receiving expert evidence. I am not prepared to exclude this evidence on the basis that it is so unreliable that if would be dangerous to have it placed before the jury. There is simply no evidence that results in the fingerprint testimony being unreliable and to be kept from the jury. [at para. 20]

R. v. Chudley, 2015 CarswellBC 1959 (B.C. C.A.), additional reasons 2015 CarswellBC 2757 (B.C. C.A.)

Crown Expert: Sergeant Deverinchuk

Chudley was convicted of using a firearm in the commission of a robbery, breaking and entering with the intent to commit an indictable offence, assault with a weapon and forcible confinement. He appealed his convictions. One of the grounds of appeal related the weight the trial judge placed on the fingerprint evidence.

All of the charges related to a home invasion. Five men entered the victim’s home. The victim was hit with a bat and shot three times in the leg. He was made to lie face down on the floor.

The men asked for “the money” and for the location of Mr. Griffin’s safe. As he lay on the floor, they put duct tape around his hands, wrists, feet and ankles, and the blond Caucasian man taped over his mouth. In response to the men’s demands, Mr. Griffin gave them the combination to his safe in the basement. They were unable to open it and started to drag him downstairs. He asked to be allowed to walk and they helped him up. He removed one foot from its duct tape-covered sock, walked down to the basement stairs with them and eventually opened the safe. He was then brought back upstairs and made to lie on the kitchen floor. Again in response to their demands, he told them that his “grow-op” was located in the barn. Some of the men demanded garbage bags and scissors and went to the barn; one man stayed with Mr. Griffin and walked around the house looking for money. Mr. Griffin stayed still on the floor. [at para. 3]

Sergeant Deverinchuk was qualified as an expert on fingerprints. She attended the scene and noted a sock on the living room floor. “Some duct tape was adhering to the sock and next to it was a wad of duct tape. The tape on the sock had the end of a cardboard roll attached to it, which roll was not located. The sergeant also found a rolled-up wad of duct tape on a stair halfway down the basement. She flattened out the wad and found that the piece was about 18 inches long and contained a partial fingerprint impression on the non-sticky side.” [at para. 7]

The Sergeant ran the lifted prints in a database and discovered a possible match with Chudley. The expert:

carried out an “analysis, comparison and evaluation” or ACE-V, and concluded that the print was that of the appellant. She testified about fingerprint analysis at some length at trial, and also described the ‘orientation’ of the print which was consistent with a person’s actually using it to tape something. The trial judge noted that her expert opinion was not shaken in cross-examination nor challenged by other evidence. The judge concluded that the fingerprint found on the tape did in fact to “belong to the left thumb of the defendant.” (para. 21.) [at para. 8]

Chudley asserted on appeal that “trial judge failed to give ”proper effect“ to the evidence of the fingerprint; and that he reached an unreasonable verdict as a result of placing too much weight on the fingerprint evidence.” [at para. 12]

The Court of Appeal dismissed the appeal and explained that:

The fact the duct tape was found where it was found and in the state it was found obviously connected it to the crime. The trial judge then stepped back and concluded on all the evidence that the Crown’s case had been made out. I do not agree the judge reversed the onus of proof. It is almost trite law that in some cases the point comes at which the evidence is sufficiently strong that it cries out for an explanation on the defendant’s part: see R. v. Young, 2006 BCCA 309 (B.C. C.A.), at para. 19-20. If the defendant is able to offer only speculation, that is not likely to be enough. Again, there was absolutely no evidence suggested here that rolls of duct tape had been present in the house prior to the attack or that would explain how the appellant’s fingerprint came to be on tape in Mr. Griffin’s house except as a result of his participation in the attack. Any other inferences would in my view be speculative and are not supported by the evidence. [at para. 18]

The appeal was dismissed [at para. 19]

R. v. Vader, 2016 CarswellAlta 1704 (Alta. Q.B.)

Crown Experts: Corporal M.E. Donnelly and Corporal D. Benko

The Crown called two witnesses, Corporal M.E. Donnelly and Corporal D. Benko, who were qualified as experts in friction ridge analysis and fingerprint forensic identification. Those experts examined the SUV. It was too dirty for fingerprint analysis, however, inside the SUV were numerous items that were examined. One was an aluminum “Boxer Beer” can. The court summarized their evidence as follows:

Corporals Donnelly and Benko investigated that can, and identified a fingerprint on the Boxer Beer can that matched the right middle finger fingerprint of Mr. Vader. I have reviewed that match and accept their conclusion. The Crown’s witness evidence was not meaningfully challenged during cross-examination. While the fingerprint on the Boxer Beer can was only a partial print, Corporals Donnelly and Benko were confident this was a reliable match. There were no inconsistencies between the Vader and Boxer Beer fingerprints. [para. 78].

R. v. Dusanjh, 2016 CarswellOnt 5868 (Ont. S.C.J.)

Crown Expert: Joseph Berkeley

Amrik Dusanjh was charged with robbery. The trial proceeded largely on an agreed statement of facts [ASF]. Those facts were set out by the trial judge as follows:

1. At approximately 9:30 a.m., on Monday, July 1, 2013, a masked assailant entered the cashier area of the Shell gas station, at 10511 Bramalea Road, in Brampton.

2. Kalpita Parekh was working, behind the counter. The individual brandished a knife, and said “Give me the money”. Kalpita Parekh turned over $80. The suspect fled.

3. Witnesses described the culprit, as follows:

a. Male;

b. 5’10 to 6’0 (Mr. Dusanjh is 5’7 1/2?);

c. Skinny or thin build (Mr. Dusanjh weights 135 lbs);

d. Brown skin;

e. One witness estimated the culprit as maybe 30 years-old (Mr. Dusanjh was 31 years-old, at the time);

f. Kalpita Parekh, the clerk, told police that the culprit had an accent, “like a brown guy”. During his post-arrest interview with Constable Jackson, Mr. Dusanjh does not appear to have an accent;

g. His right hand was holding a 6-inch kitchen knife, with a brown, faded, wooden handle; and

h. Wearing:

i. one glove, on his right hand

ii. a blue button dress shirt;

iii. a dark baseball cap;

iv. dirty blue jeans; and

v. a red bandana, over his face; and

i. The culprit fled on foot.

4. Video surveillance captured the incident. During the robbery, the suspect placed his ungloved left hand in the vicinity of the clear, plastic lottery display case, that was resting on top of the counter. However, it is an issue, at trial, whether the suspect’s ungloved left hand actually made physical contact, with the lottery display case and, further, whether it left a fingerprint or palm print, on the surface of the lottery case.

5. Following the robbery, Constable Berkeley successfully lifted a print.

6. On October 29, 2014, Peel Regional Police were notified of an “AFIS” match, regarding the print they had lifted.

7. On October 30, 2014, Constable Hofstetter used fingerprints, already on file for Mr. Dusanjh, to compare against the lifted print, from paragraph #5. He successfully matched the lifted print to Mr. Dusanjh’s known prints.

8. On March 30, 2015, at 12:22 p.m. Mr. Dusanjh was arrested, at 52 Mountain Ridge Road, in Brampton. Mountain Ridge Road is approximately 20 km away from the Shell gas station.

9. Mr. Dusanjh’s mother lives at 7 Pinecone Way, in Brampton, which is approximately 350 feet from the Shell gas station.

The Crown also called Joseph Berkeley who was qualified as an expert in the “identification, analysis and comparison of fingerprints and palmprints” [para. 5]. The court, noting the Berkeley was “highly trained” in crime scene identification and examination summarized his evidence as follows:

7. General information provided by Const. Berkeley included:

(1) human fingers and palms secrete water and salt through skin pores

(2) when contact with sufficient pressure is made with a non-porous surface like glass this sweat is transferred or excreted from the pores onto the surface leaving a three-dimensional ridge-detailed impression

(3) each individual leaves unique print impressions

(4) fingerprint/palmprint analysis cannot scientifically date the time of placement of a print or impression on a host surface

(5) examination of a print may allow a conclusion about the direction of movement of the human hand responsible for placement of the print

(6) a hand or palm touching a non-porous surface may or may not leave an impression depending on the pressure applied to the host surface.

8. With respect to the present case, the expert provided this evidence:

(1) adjacent to the cash register at the Shell station, over top of a selection of lottery tickets ready for sale, was a glass counter top

(2) application of the fingerprint powder technique to this surface did result in powder adhering to two areas (P1 and P2) with clear ridge detail sufficient for individualization analysis

(3) covering all of this host surface was evidence of a number of other human hand contacts but without sufficient ridge detail to be useful for comparison

(4) the P1 site related to an impression originating from the first police officer to attend the scene who received the robbery complaint and then closed the gas station store until Const. Berkeley arrived

(5) P2, the print matched to the accused, was located on the glass counter closer to the customer side than the cashier side — the witness circled the location on Exhibit #2 p. 4

(6) P2 was a good quality print of the side of a left hand, described by the witness as the hypothenar area or a “writer’s palm” print — at the time of the print application, the fingers of the hand were pointing toward the cashier’s side of the counter

(7) the majority of the P2 palm print was stagnant but with some slight smudging at the base of the print the expert concluded that fact to be consistent with that part of the hand last having contact with the glass surface

(8) P2 was a clear and undisturbed print with no evidence of contacts, interference, or disturbance on that print after it adhered to the counter surface — there were no secondary impressions from a human hand nor evidence “that something else came in contact with that impression”

(9) from the expert’s review of the crime scene video, although he determined that the robber’s bare left hand touched the glass counter surface in the location where the P2 print was retrieved, he is unable to say that the robber in the video is the person who left the P2 print because the robber was masked.

Together with the video evidence and admission, the expert evidence support the conclusion that the only reasonable inference was that the robbery left the palmprint identified — one that was admitted to in fact belong to the accused. The court found that the robber did in fact touch the surface where the print was found. There was no contradiction of the expert’s evidence that:

(1) the accused’s palm print had fingers pointed in the direction of the cashier

(2) the slight smudging at the bottom of the P2 impression suggested it was the last part of the left hand to leave the glass surface

(3) the lifted palm print of the accused was a clear print with no evidence, subsequent to its contact placement, of interference or disruption by other forces such as other overlay impressions.

The accused was found guilty.

R. v. Kloos, 2016 CarswellOnt 20085 (Ont. C.J.)

Crown Expert: Police Constable Oerlemnas

Kloos was charged with robbery and wearing a disguise with the intent to commit an offence. The only issue at trial was whether Kloos was one of the two culprits who robbed a Shoppers Drug Mart. A garbage bag was left behind at the scene by one of the perpetrators.

P.C. Oerlemnas was qualified as a fingerprint expert. The officer examined the garbage bag seized on scene and formed the opinion that one of the prints on the bag belonged to Kloos. A second unidentified print, not belonging to Kloos was also found on the bag. P.C. Oerlemnas was unable to say when these prints were left on the bag.

The Crown contended that the fingerprint evidence in conjunction with some other circumstantial evidence was sufficient to establish that Kloos was one of the perpetrators of the robbery. Still photographs from the robbery however revealed that the robber wore gloves and so the print would have had to have been placed there before the robber put on the gloves. The defence argued that the fingerprint evidence only established that Kloos had had some contact with the bag but that there was no evidence of when that contact occurred.

In dismissing the charges the Court noted that:

A fingerprint is powerful evidence that the person touched that object, but the connection with the crime will often depend on the existence of other evidence establishing that the person touched the object at the relevant time and place: R. v. Mars (2006), 205 C.C.C. (3d) 376 (Ont. C.A.) [at para. 7].

In applying this principle to the case at bar the Court offered the following:

I do not consider the Defence assertion that the fingerprint could have been innocently placed on the garbage bag on a date before the events in question to be speculative. Indeed, I am satisfied that the person the Crown claims to be the defendant, as captured in the pharmacy photographs, is wearing gloves. Any fingerprint that may have been left by that person was deposited before the culprits entered the store. The difficulty is that I do not know when the defendant’s fingerprint was placed on the bag — and the timing is obviously important. The matter is further complicated by the presence of a second unknown fingerprint. [at para. 9]

Ultimately the Court concluded that:

[t]here is no doubt the defendant touched a garbage bag left at the scene of the robbery, at some point, before that crime was committed. There is a reasonable doubt about whether he was one of the two culprits who entered the pharmacy with that bag. To be specific, this being a circumstantial case, it cannot be said that the defendant’s guilt is the only reasonable inference to be drawn from the presence of his fingerprint on the bag. [at para. 11]

R. v. Bornyk, 2015 CarswellBC 126 (B.C. C.A.)

Crown Expert: Corporal Wolbeck

Bornyk was acquitted of a single count of breaking and entering a dwelling house. The Crown appealed.

The most significant piece of evidence against Bornyk was a fingerprint found in the study of the home. The Crown called Corporal Wolbeck who was qualified as an expert in the identification, comparison and individualization of fingerprints. The expert testified that in his opinion the print belonged to Mr. Bornyk. [at para. 2].

At the conclusion of the trial, the judge sent counsel a memorandum detailing “four articles critical of fingerprint identification analysis” and inviting counsel to make further submissions. [at para. 3]

Both defence counsel and the trial judge identified “differences” between the latent print and the known print. [at para. 3]

In acquitting Bornyk, the trial judge reviewed:

the opinion evidence of the fingerprint witness, referred to the articles found after conclusion of the evidence, and replicated portions of the articles in his reasons for judgment. The judge then turned to what he termed “troubling aspects” of the evidence of the fingerprint witness, identifying eight areas of concern: the possibility of institutional bias; the use of a photocopied print; non-disclosure of bench notes of the witness; absence of proof of use of “the ACE-V” methodology; use of a partial print; doubts of the subjective certainty of the witness’s individualization of the print; failure of the expert to consider another set of fingerprints from the accused taken earlier; and unexplained discrepancies he found existed between the latent print and the known print. [at para. 4]

The Court of Appeal ordered a new trial and noted that:

While it may be desirable that a judge personally observe the similarities and differences between the latent point and known point, such examination should be guided by a witness so as to avoid the trier of fact forming a view contrary to an explanation that may be available if only the chance were provided to proffer it.

The judge relied upon his own observation of what he said was a difference between the latent and known prints. The fingerprint witness however was never questioned on that area of the fingerprint. Whether this “difference” is forensically significant is speculation. This unassisted comparison had a material bearing on the verdict. [at paras. 18-19]

6:70 Firearms and GSR

R. v. Dockerill , 2013 CarswellBC 2427 (B.C. S.C.)

Crown Expert: Joseph Prendergast

Dockerill was charged with unauthorized possession of a restricted firearm. The firearm in question was a 9mm semi-automatic.

All parties agreed that Dockerill

1. did not have a licence or registration for the firearm

2. used the firearm to kill John Borden in a gunfight

3. used the firearm in self-defence when Borden open fire on Dockerill.

The only question at trial was whether Dockerill had the pistol with him when he arrived at the location of the shooting or whether as he testified that:

it was only after Mr. Borden produced both the revolver and the pistol, and pointed and fired them at him and Mr. Ambrus, that he was able to disarm Mr. Borden of the pistol and use it to defend himself. [at para. 4]

Mr. Prendergast was qualitied as an expert and permitted to given opinion evidence on firearms and toolmarks. His evidence was summarized by the Court as follows:

Firearms and toolmarks expert Joseph Prendergast meticulously identified numerous bullet tracks and instances of bullet damage in the area, some of which was to the Volkswagen and the Explorer. These vehicles were parked head-in facing one “arm” of the C-shaped building, thus roughly parallel to the longer central portion of the building which included Mr. Borden’s unit. Mr. Dockerill’s Explorer was closest to the central portion of the building, and it was behind this vehicle, in the large parking area between the building and the road in front of it, that Mr. Borden’s body was lying. I will discuss in more detail below those of Mr. Prendergast’s findings and opinions which help in the determination of issues relevant to whether Mr. Dockerill had possession of the pistol before the gunfight started. [at para. 19]

Dockerill testified and claimed that Borden was armed with two guns.

Mr. Prendergast’s evidence on the features of each of the firearms involved in the shootout were significant to the court. In fact, the court concluded that it was “inherently unlikely in the extreme that had he (Borden) been armed with both gun, that he would have resorted first to the revolver.” [at para. 12]

The court noted that:

The expert evidence made clear that the pistol is faster to fire initially and can discharge its rounds in rapid succession. By contrast, the revolver is a single action firearm and is challenging to cock with one hand. It requires both hands for reloading, by removing its cylinder and manually replacing the spent cartridges, after its six rounds are fired.

Mr. Borden evidently expected to have to reload: he had extra ammunition for the revolver in his pockets (six rounds in each of two pockets). Had he had possession of the pistol, with its high-capacity magazine, he would have been able to fire eighteen rounds without reloading. [at paras. 123-124]

Ultimately, the court found Dockerill guilty. [at para. 179]

R. v. Bildfell, 2015 CarswellOnt 8768 (Ont. S.C.J.)

Crown Expert: Dr. Gerard

Moore was tried by judge and jury on four counts of first degree murder. During the course of the trial the defence brought an application to exclude the proposed evidence of Dr. Gerard.

Dr. Gerard’s qualifications and anticipated evidence were described by the court as follows:

The Crown proposes to call Dr. Gerard as a witness. He is a scientist employed at the Centre of Forensic Sciences and is an expert in the analysis of GSR. Following the seizure of Moore’s BMW by the police in November 2011, Dr. Gerard examined it and located four particles of GSR: one on the steering wheel; one on the dash area; and two on the driver side door.

Dr. Gerard will testify that the finding of GSR on an object could arise from the object upon which GSR is found being in the vicinity of a firearm being discharged or coming into contact with another object that had GSR on it. GSR is composed of metal compounds, and does not evaporate or decompose. However, it can disappear as a result of washing, agitation, transfer, gravity or grinding. [at paras. 8-9]

The Court permitted the expert to testify.

First, the Court held that:

Without doubt, the presence of GSR in a motor vehicle can be admissible as a piece of circumstantial evidence tending to establish that a firearm was fired in that vehicle. But there are limitations on the usefulness of GSR evidence in establishing that a particular shooting took place in the motor vehicle where the GSR is found. In most cases, the possibility cannot be excluded that the GSR is present as a result of it being transferred to the vehicle, or as a result of the discharge of a firearm in the vehicle at some other time. However, circumstances may limit the likelihood of alternate possibilities, or enhance the likelihood of the proposed possibility, allowing the finding of GSR, although not definitive, to be a building block in the Crown’s case — a piece of circumstantial evidence that the jury can evaluate along with the remainder of the evidence. Obviously, every case is different. [at para. 12]

The Court also identified a number of factors which limited the probative value of the GSR evidence.

1. The examination of the car took place 14 months after the shooting

2. During the 14-month period the car in questions was seized on a number of occasions and searched

3. Dr. Gerard testified at the preliminary inquiry that randomly sample police officers may be found to have GSR on them

4. Moore regularly possesses and fires firearms

5. Some of the allegations took place before Moore acquired the BMW

Ultimately, the Court concluded that the GSR evidence has no probative value in this case. [at para. 40]

The Court held that:

in all of the circumstances of this case, there is no nexus between the crime charged and the GSR, and the finding of GSR in the BMW does not make it even slightly more probable that the shots that killed Facey and James were fired from that BMW.

However, assuming that the GSR evidence does have some slight probative value, I turn next to prejudicial effect. I have already noted the comment of Doherty J.A. in Stevenson, that scientific opinion evidence very similar to the scientific evidence here is not the sort of evidence that could be given exaggerated importance by the jury. Since Dr. Gerard made it clear that he offered no opinion on the subject of how the GSR came to be where it was found, the risk of misuse of this evidence was not significant.

I do not challenge what Doherty J.A. said in that case, but the circumstances here are different. To permit the introduction of scientific evidence in this case that has virtually no probative value does risk misuse by the jury. Some jurors will undoubtedly be tempted to give scientific evidence from a highly qualified expert witness more importance than it deserves. If the Crown is permitted to call scientific evidence about GSR some jurors may conclude that it must have some real significance. [at paras. 40-42]

Lastly the concluded that there was an additional form of prejudice which could arise if the evidence were admitted. The court described this additional prejudice as follows:

In order to ensure that the jury understands the limitations of the evidence, the accused might feel compelled to place before the jury more of his unsavoury history with firearms than the Crown has been permitted to do. If the GSR had significant force, then this would merely be unfortunate for Moore. But where the GSR has little probative force, it is unfair. [at para. 43]

R. v. Ball, 2014 CarswellOnt 7126 (Ont. C.J.)

Crown Expert: Special Constable Michael Press

Ball and Olsen were charged with a number of firearms and drugs offences. As the trial progressed the issues narrowed and the focus became the possession and offer to transfer of a .357 Magnum.

Special Constable Michael Press was qualified as an expert in firearms and language involving firearms.

His evidence was summarized by the trial judge as follows:

Special Constable Press had been contacted by Det. McCarthy and was asked to review various text messages from the cell phone found in the possession of Mr. Ball together with other associated information to determine if there was any coded firearm language, conversation or terms contained in the material provided. He had an opportunity to review the disclosure report with respect to the extracted information from the seized cell phone as well as Facebook firearm images including photos of the suspected .357 Magnum firearm and of Mr. Ball in possession of that item.

Special Constable Press’ report is marked as Exhibit #19 in this matter. In that report he reviews various text messages retrieved from the cell phone found in the possession of Mr. Ball and indicates he found many conversations taking place as part of exchanges of text messages using coded or slang language in reference to firearms. He found those were at times intermingled with technical gun references as the cell phone report shows that Mr. Ball was also viewing a number of firearm related websites. [at paras. 34-35]

The expert was also questioned about some of the language and terminology relating to illicit drugs. The expert “candidly acknowledge he was not an expert in drug language.” [at para. 57]

With respect to the firearm the expert testified that:

• it was more difficult to determine whether an item is a firearm from a picture or video than it is by having the item available for testing and physical examination. [at para. 47]

• with respect to the examination of the photographs that he could not determine from the photographs whether in fact the handgun had been deactivated nor could he determine the serial number for the item so that he could attempt to trace its history. [at para. 49]

The court concluded that:

the Crown has proven all essential elements of the remaining charges before the court, save and except that the .357 Magnum handgun was in fact a firearm. [at para. 128]

In this respect the Crown did not meet it’s burden and the accused were acquitted of the charges relating to the .357 Magnum.

R. v. Goard, 2014 CarswellOnt 4704 (Ont. S.C.J.)

Crown Expert: PC Dwayne Scott

Crown Expert: Detective Richard Rossel

Defence Expert: Albert Anthony Bernardo

Goard was charged with two counts of robbery with a firearm and four counts relating to the pointing, possession and storage of the firearm.

Goard robbed a taxi driver and a woman standing at a bus stop, both at gunpoint. A search warrant was executed on Goard’s residence and a gun was found. At the start of trial counsel on behalf of Goard admitted that his client had perpetrated the acts in questions but that he would be raising the defence of intoxication and arguing that because the gun was broken it did not meet the definition of a firearm [at paras. 2-3]

In order to prove that the gun recovered from Goard’s residence was a firearm the Crown called two experts: PC Dwayne Scott and Detective Richard Rossel, both of the Toronto Police Service.

The defence called Mr. Bernardo as their firearms expert. The expert evidence can be summarized as follows:

P.C. Dwayne Scott is with the Toronto Police Service (TPS) and was designated as an examiner of firearms and weapons. He worked with firearms for about a year. He took two courses and received on-the-job training and mentorship. He was involved in about 150 cases. However, the overwhelming majority of his cases involved traditional guns, not pellet guns. He may have dealt with just 6 to 12 pellet guns. [at para. 45]

PC Scott testified that:

He had a working knowledge of the “Pig’s Eye Test”, a standardized test used by police forces to determine whether a pellet gun is capable of “causing serious bodily injury or death”, as required by the definition in s. 2 of the Criminal Code. Simply put, the speed of BBs fired from a device is measured with a chronograph. If a BB can travel more than 214 feet per second, it is capable of penetrating a pig’s eye, which shares many of the same features with a human eye. A reading of 246 feet per second means that it can consistently penetrate a pig’s eye and is capable of “causing serious bodily harm.” [at para. 46]

Because of Officer Scott’s limited experience with BB guns he court concluded that little weigh could be placed on his evidence [at para. 45]

In contrast, Detective Rossel had extensive experience with all types of guns including BB guns.

Detective Rossel said that the magazine was damaged because the spring was bent and the follower was missing. He also said that the magazine tube was slightly “swollen.” Detective Rossel said followers and springs could be obtained from a sporting goods store or the manufacturer, as could magazine assemblies. He also testified that the magazine assembly would have to be repaired or a new one obtained to properly fire the gun. He said it might be possible to fire the gun without a magazine by placing a BB in the chamber, but he was vague on this. He also said that the magazine could be temporarily “fixed” by using Kleenex or tape to act as a follower. Detective Rossel testified that he could repair the spring (after it was damaged by P.C. Scott). But as he said, “I can fix just about anything.”

Detective Rossel agreed with the conclusion stated in the certificate and he too would classify the gun as a firearm. However, in cross-examination, he acknowledged that he did not know if it would work in the state that it was found. [at paras. 51-52]

Mr. Bernardo testified for the defence. His expertise were described as follows:

Mr. Bernardo’s expertise with firearms was not gained through law enforcement experience. He has advised politicians on firearms policy and has been involved in drafting legislation. He has taught courses to the Guns and Gangs Task Force in Ontario. He has also gained knowledge and experience through working within the Canadian firearms industry. Moreover, he is a certified instructor for Canadian Shooting Sports. Mr. Bernardo has extensive experience with pellet guns. Mr. Bernardo testified that he has handled “hundreds if not thousands” of them and has tested them with chronographs. [at para. 53]

Mr. Bernardo concluded that:

Bernardo said that the magazine was integral to this gun. He testified that the gun could not be fired without the magazine. He also noted the missing follower. Looking at Exhibit #63D, he said that the spring was inoperable. Also, without the follower, the functionality of the gun would be minimal. Although, he later said that it “may” be able to be fired and that it was “almost inoperable.” Again, and somewhat vaguely, he said that the gun would not fire in any normal manner; the magazine would have to be replaced. [at para. 54]

He also testified that “the Pig’s Eye test is not even close to the standard that is required” [at para. 56]

The Court concluded that Mr. Bernardo was incorrect about the Pig’s Eye test. The Court held:

When dealing with guns that are not “conventional” firearms, such as BB guns, it is necessary to determine whether the device is capable of firing projectiles at a velocity that can cause serious bodily injury or death. I accept the evidence of P.C. Dwayne Scott and Detective Richard Rossel that it was established that the device was capable causing this type of harm through the use of the Pig’s Eye Test, a recognized laboratory procedure used by law enforcement agencies: see R. v. Dunn (2013), 117 O.R. (3d) 171 (Ont. C.A.), at para. 40. [at para. 121]

(. . .)

This disposes of the issue in this case definitively. Mr. Bernardo was mistaken. [at para. 123]

The court accepted the evidence of PC Scott and Det. Rossel that a new magazine or spring were readily available to police officers and might be possible to find replacements at a good sporting goods store.

However, Justice had a doubt about:

whether the broken (but fixable) gun was a “firearm” within the meaning of s. 2 of the Criminal Code. Consequently, I find Mr. Goard not guilty of robbery with a firearm on Count #1, but guilty of robbery. Similarly, I find Mr. Goard not guilty of robbery with a firearm on Count #4, but guilty of robbery. [at para. 130]

Goard was convicted of the lesser included offences of robbery and acquitted of the remaining charges.

R. v. Agtual, 2015 CarswellOnt 5070 (Ont. S.C.J.), affirmed 2017 CarswellOnt 7389 (Ont. C.A.)

Crown Expert: Shane Staniek

Agtual was charged with robbery, assault causing bodily harm, three firearms related offences and possession of marijuana. At the outset of trial, Agtual “entered a plea of guilty to robbery, assault causing bodily harm, and possession of cannabis marijuana in an amount exceeding 30 grams.” [at para. 2]

At trial, Agtual argued that he “grabbed a bag from the victim, a drug dealer, and fled the scene. When he opened the bag, he found marijuana and a gun. When he was confronted by police, he ran, tossing the gun into some bushes.” [at para. 4]

The Crown on the other hand argued that Agtual brought the gun to the robbery, pistol whipped the victim and fled when confronted by police.

The victim suffered a broken jaw. The gun was recovered by police and examined by a firearms expert.

Shane Staniek was qualified as an expert in firearms and toolmarks. Mr. Staniek:

examined the gun located by Irwin and concluded that it was a 32 semiautomatic Colt Pistol calibre with a dischargeable cartridge manufactured by Beretta under the name “3032 Tomcat”. It was a barrelled weapon designed to be aimed and fired by the action of one hand. Projectiles from it were capable of causing serious bodily injury or death. The barrel length measured 61.8 millimetres and the cartridge magazine had a capacity of seven .32 Colt Pistol calibre centre-fire cartridges suitable for use in the semi-automatic pistol. [at para. 69]

Mr. Staniek also examined the cartridge “which was loaded with a full metal jacketed bullet”. He determined that the “cartridge was ammunition and suitable for use in the pistol.” [at para. 70]

The expert determined that the firing pin in the pistol was defective. Mr. Staniek replaced it “with a firing pin from the Centre of Forensic Sciences Reference Collection. When it was test fired using the detachable cartridge magazine, the pistol functioned correctly as a semi-automatic pistol.” [at para. 71]

Mr. Staniek testified that:

on four different occasions, he disassembled the pistol to withdraw the firing pin and put in thereplacement pin. The length of time required was between a few minutes and fifteen minutes. It was his opinion that anyone could perform the task if they had standard small machinery tools and manual dexterity. [at para. 72]

The expert called various gun parts suppliers and learned that a replacement firing pin was easily obtainable for under 20 US dollars.

The Court accepted the expert’s evidence and held that:

Staniek testified that on four different occasions, he disassembled the gun and replaced the firing pin. The procedure took between several minutes and fifteen minutes. He said that others could replace the pin if they had manual dexterity and suitable tools. He suggested that one could use an armorer’s block, which is available at a sporting goods store or gun store.

Although Staniek found a replacement pin on-line in the United States for $6.50, the evidence is that a gun part imported from the United States for a prohibited weapon is subject to confiscation by Canadian Customs Officials. When Staniek made inquiries in Canada, the item was sold out.

Inspector Warren testified that the 3032 Tomcat is a common gun manufactured in the United States. In my view, the fact that the pin was “sold out” suggests that the firing pin could be readily sourced and available. Combined with the evidence of the relative ease with which the pin could be installed, I conclude that the accused had the capacity by himself or with the assistance of others and within a reasonable time to adapt the gun for firing by replacing the pin. [at paras. 126-128]

The Court found Agtual guilty as charged.

R. v. Woodcock, 2015 CarswellOnt 10879 (Ont. C.A.)

Crown Expert: Stephen Horwood

Woodcock was charged with second degree murder in the tragic Boxing Day shooting of 15-year-old Jane Creba. Jane was shopping with her sister when hit by a stray bullet during a gunfight between two rival gangs. Woodcock was convicted of manslaughter in Jane’s death and aggravated assault in relation to others injured by bullets that day.

The facts are important in understanding the role of the expert evidence in this case. The facts can be summarized as follows:

Ms. Creba was killed by a .357 Magnum bullet fired northbound by Jeremiah Valentine. The Crown’s theory of causation was that the appellant, Valentine, and others in their groups had decided, prior to any shots being fired, to engage in a gunfight on a public street. As a result, but for the appellant’s willingness to engage in a gunfight, Valentine would not have fired the bullet that killed Ms. Creba.

The Crown’s theory of causation had already proven successful against one of the appellant’s associates, J.S.R., who was convicted of second degree murder in Ms. Creba’s death: see R. v. S. (J.) (2008), 237 C.C.C. (3d) 305 (Ont. C.A.); R. v. R. (J.S.), 2012 ONCA 568, 112 O.R. (3d) 81 (Ont. C.A.), leave to appeal to S.C.C. refused, (2013), [2012] S.C.C.A. No. 456 (S.C.C.). J.S.R. and the appellant were part of a group of friends standing outside a Foot Locker store when Valentine opened fire. Almost immediately, J.S.R. — or, less likely, the appellant — fired a 9mm automatic handgun southbound.

The Crown’s theory of the appellant’s role was that he owned and carried the 9mm handgun and passed it to J.S.R., possibly after firing shots himself. There was strong evidence connecting the appellant to the gun, including DNA and the testimony of some of his associates. However, the evidence connecting the appellant to the actual shooting of the gun was circumstantial. Many eyewitnesses to the brief events on Yonge Street testified, but none of them identified the appellant as a shooter or saw him passing a gun to J.S.R. [at paras. 3-5]

At trial, the Crown called Stephen Horwood — a 32 year veteran of the Toronto Police Service and current criminal investigator with for the US Bureau of Alcohol, Tobacco, Firearms and Explosives. Officer Horwood was qualified to give expert evidence on “the recognition of the characteristics of armed persons.” [at para. 7]

Horwood’s evidence was that:

criminals keep firearms hidden but readily accessible and that likely areas of concealment are the waist, pants pockets or jacket pockets. He stated that a fully loaded 9mm handgun weighs 2 to 2.5 pounds and that, if such a gun were tucked in the pants waist, it would shift as the individual moved, requiring it occasionally to be readjusted. [ar para. 7]

The trial judge initially ruled that the Crown would not be permitted to show the expert surveillance video and “adducing from him that the appellant had characteristic consistent with that on an armed person.” [at para. 8]

The defence, however cross-examined the expert on his observations of the appellant in the surveillance video. As a result the Crown successfully applied to play the video in re-examination. He testified that:

the appellant caught his attention in the video as someone who was possibly armed. Yet, Horwood saw no protrusions in the appellant’s waist or pockets that resembled a gun. He admitted that he could not tell from the video whether the appellant was armed or not. [at para. 8]

Woodcock appealed his convictions. He argued that:

First, the evidence of the expert should not have been admitted since it was mostly common sense and the jury did not need an expert to evaluate this evidence.

Second, that the trial judge erred in permitting the playing of the video in re-examination.1

The Court of Appeal dismissed these arguments. The Court held that Horwood’s “testimony leads to the conclusion that his expertise was based on a combination of experience, science and common sense.” [at para. 11]

The Court further held that the trial judge was entirely reasonable in prescribing limits to the use the Crown could make of the video and then reasonably adjusting to the increased reliance defence was placing on that video.

The Court concluded:

I see no error in the trial judge’s initial admissibility ruling or in her treatment of the cross-examination/re-examination issue. Both were appropriately balanced. I would not give effect to this first ground of appeal. [at para. 19]

R. v. D. (D.), 2016 CarswellOnt 18327 (Ont. S.C.J.)

Crown Expert: Detective Sergeant Chris O’Brien

In February 2013, Ottawa Police responded to a sleepy suburban neighbourhood in response to a report of a lost 11-year-old boy. The boy was emaciated, covered in scars and bruises. Ultimately, the boy’s father and stepmother were charged with a number of criminal charges related to the horrific abuse they inflicted on the child. DD, the boy’s father was an RCMP officer he faced additional charges related to the careless storage of a firearm and ammunition.

The firearms charges related to a pellet gun that was discovered when DD’s home was searched. The pellet gun was found loaded and leaning against the food pantry.

Detective Sergeant O’Brien was qualified as a firearms examiner. Det. Sgt. O’Brien testified that he examined the pellet gun seized from DD’s home. The expert testified that the pellet gun met the Criminal Code definition of a firearm based on the velocity of a pellet when the gun was fired [at para. 40]

The officer testified that there was no trigger lock, although there was a safety mechanism. When the item was found it had a pellet loaded in the chamber. Det. Sgt. O’Brien testified that although there were no specific regulations for the storage of a pellet gun, he noted that that it is a weapon and can cause injury.

Det. Sgt. O’Brien’s evidence was unequivocally accepted by the Court. Justice Maranger held:

With respect to careless storage of a firearm under count 13, the evidence established beyond any reasonable doubt that a loaded pellet gun was found leaning against the food pantry in the kitchen of the home. It was not stored in any fashion whatsoever. A pellet gun of this type based on the tests performed by the firearms expert who testified at trial, Detective Chris O’Brien, fits the definition of a firearm under section 86(1) of the Criminal Code.

The Crown has established all the elements of the offence required for a finding of guilt on Count 13. [at paras. 127-128]

R. v. Cater, 2014 CarswellNS 604 (N.S. C.A.)

Crown Expert: Special Firearms Officer Michael Press

In 2007 a large scale joint forced investigation was launched. It was called Operation Intrude. Its purpose was to investigate the activities of the Spryfield Mob (SMOB) — a criminal organization believed to be involved in crimes of violence and the trade of guns and drugs. In November 2008, a wiretap authorization was obtained — one of the targets was Kyle Cater. That authorization was still in place in January 2009 when Cater got a call from his stepmother letting him know that the home she shared with Cater’s father had been raided by police. In subsequent call she told Cater that the police were obviously looking for guns. Largely on the strength of these intercepted phone calls the police obtained a warrant to search the home for firearms. Cater, his father and stepmother were jointly charged with:

the unlawful storage of a sawed off Cooey 84 shotgun, a Lakefield Mark II rifle, and an AA Arms Model AP 9 handgun, and ammunition, in a careless manner (contrary to Criminal Code section 86(1) # 3), unlawful possession of the sawed off Cooey 84 shotgun, the Lakefield Mark II rifle and the AA Arms Model AP 9 handgun (contrary to Criminal Code section 88(1) # 3), unlawful possession of a loaded prohibited weapon — the AA Arms Model AP 9 handgun, and unlawful possession of a loaded prohibited firearm — the sawed off Cooey 84 shotgun (contrary to Criminal Code section 95(1) # 2), unlawful possession of the sawed off Cooey and the AP 9 handgun, knowing that possession is unauthorized (contrary to Criminal Code section 92(1) # 2), and unlawful possession of two over capacity magazines, a prohibited device (contrary to Criminal Code section 92(2)). [at para. 7]

Cater was also charged with 12 firearms trafficking offences. The three co-accused mounted an unsuccessful challenge to the search. After that challenge failed Cater’s father and stepmother plead guilty to a number of offences. Cater was convicted after trial of a number of offences and sentenced to eight years in the penitentiary. His appeal of both conviction and sentence was dismissed.

At trial and following a qualifications voir dire, Special Firearms Officer Michael Press was qualified to provide opinion:

evidence in firearm identification, classification, test firing, firearms and ammunition trafficking, illegal movement of firearms including crime guns sources, firearm concealment, street and coded language relating to firearms including illegal street prices of firearms and ammunition. [NSCA at para. 9; trial decision at para. 92]

The officer’s qualifications were conceded on all fronts except with respect to street and coded language related to “firearms and the illegal street prices of firearms and ammunition.” [at para. 9]

The trial judge gave significant weight to Mr. Press’ opinion “including on the possible meanings to be given to the coded language on the intercepts” [NSCA at para. 9; trial decision at para. 94]

On that point the trial judge explained that:

Michael Press listened to all 56 intercepts before me (Exhibit 4), viewed the text message in Exhibit 4 and the photographs of guns obtained from Kyle Cater’s cell phone. He was also shown the firearms seized from 80 Cavendish Road. Besides observing the physical condition of the seized firearms, their manufacturers, make and calibre or gauge, Mr. Press indicated that the AP 9, manufactured by AA Arms is very similar in appearance and function to a Tec 9, manufactured by Intratec. The AP 9 and Tec 9 barrels have a similarly menacing and distinctive look, very similar handgrips, and can function with high capacity magazines. Although manufactured to be semi-automatic, the AP 9 and the Tec 9 can be modified to be fully automatic. The AP 9 has a street value according to Mr. Press of $4500-$5500. Full automatic machine pistols are designed to kill people. [CA at para. 9; trial decision at para. 96]

Cater raised twelve separate grounds of appeal, none however related to the expert evidence. The Court of Appeal however referred to that expert evidence in dismissing the appeal. For example the appellate court noted that:

(. . .) the intercepted calls led to the host of charges against the appellant. Expert evidence was led at trial as to the meaning of certain code words used by the conversants, as well as the voice identification of the individuals whose conversations were being intercepted and later transcribed. Besides that expert evidence, Judge Derrick also listened carefully and repeatedly to the intercepts herself, prompting her to confirm in her decision. [at para. 32]

R. v. Mendez, 2014 CarswellOnt 703 (Ont. S.C.J.)

Crown Expert: Dr. Gerrard

Joel Waldron was shot near his home in Toronto. He was taken to hospital and died the following day. Police noted what they identified as suspicious footprints in the snow near where the shooting had taken place. The murder weapon was located in the trash nearby. Police followed the footprints to a nearby house and inside located Mr. Wilson — he was arrested. Mr. Mendez who shortly after the shooting was observed getting into a taxi which was leaving from the same residence Mr. Wilson was discovered in.

Both were arrested. Their hands were ‘bagged’ to preserve any evidence of gunshot residue [GSR] and swabs were ultimately taken for testing.

Dr. Gerrard an expert in GSR:

tested the samples taken from the hands of Mr. Mendez and Mr. Wilson for gunshot residue. He prepared a report indicating that he found nine particles containing the elements of gunshot residue in the tapelift samples from the hands of Jordan Mendez. He found three particles containing the elements of gunshot residue in the samples from Shamaree Wilson’s hands. [at para. 81]

The expert opined that:

(. . .) a person can have gunshot residue on their hands from discharging a gun, from being in the vicinity of a firearm that is discharged or from transfer from another source. Mr. Mendez was in the back of a police cruiser, in handcuffs, and in two different rooms at the police station before his hands were placed in paper bags by P.C. Chiasson at 2:05 a.m. Mr. Wilson was in two different police cruisers, was in handcuffs and was in two different rooms in the police station before his hands were placed in bags at 2:38 a.m. The police cruisers, the handcuffs and the interview rooms were all potential sources of contamination. This is because police officers have firearms and because people who have been arrested and placed in the handcuffs, cruisers or interview rooms before Mr. Mendez and Mr. Wilson may have had gunshot residue on their bodies or clothes. While Dr. Gerrard, in the studies he had conducted and read, had never seen three particles or more transferred from such sources, he could not rule out the possibility. [at para. 82]

Mendez and Wilson both challenged the admissibility of the GSR evidence on the basis that it had been obtained in violation of their Charter protected rights.

The trial judge concluded that there was no breach of Mendez’ Charter rights in obtaining this evidence. With respect to Wilson the trial concluded that notwithstanding the breach the evidence should be admitted in accordance with s. 24(2) of the Charter.

Wilson also challenged the admissibility of the GSR evidence on the basis that its probative value is exceeded by its prejudicial effect.

The trial judge rejected this argument and held the following.

First,

[t]he evidence in this case is relevant. While not determinative, the evidence that the shoes of the two accused were consistent with having made the footwear impressions at 4 Coltman is evidence that tends to prove that the two men were in the vicinity of the recycle bin where the gun was found. The evidence of the particles of gunshot residue is also relevant to the issue of the contact with the gun. [at para. 167]

Second, there is no issue with the evidence due to methodology, quality assurance or qualifications of the experts. [at para. 171]

Third, any risk can be mitigated by a proper instruction to the jury. [at para. 175]

The application judge held:

In my view, the probative value of the evidence outweighs any minimal risk of prejudice. This is a circumstantial case. The connection of the two men to the murder weapon is central to the determination of identity. There is a connection between the location where the footprints and gun were found and the accused without the expert evidence. Both men were found at the residence and had arrived shortly after the shooting. The evidence must be assessed by the jury in the context of all of the other evidence. In that context it has probative value that outweighs any prejudicial effect. The risk of misuse by the jury can be addressed through a proper instruction to the jury on the use of the evidence and its limitations. [at para. 175]

R. v. Vader, 2016 CarswellAlta 1704 (Alta. Q.B.)

Crown Expert: Dean Dahlstrom

Amongst the evidence recovered was a hat with a “Boag’s Draught” logo on it. Video images of Lyle McCann show him wearing what appears to be the same hat. The hat had a hole in the brim. The Crown called Dean Dahlstrom. He was qualified as an expert in relation to firearms, tool marks and the residues produced when a firearm is discharged [at para. 80]. Dahlstrom examined the Boag’s hat. He concluded that the brim of that hat had been perforated by a bullet that had passed through the top of the brim and exited out its bottom. The bullet’s trajectory was close to perpendicular to the plane of the brim. The bullet was travelling in a stable manner, which implied it had not already hit something or otherwise altered its orientation from a ‘nose forward’ position [at para. 80]. Dahlstrom added that the bullet had been fired in “proximity” to the hat as the hat exhibited firearms residue released by the discharge. Dahlstrom discussed, under cross-examination, that a more precise distance was not possible without knowledge of what firearm and ammunition used was known.

R. v. Abdo, 2016 CarswellOnt 21019 (Ont. S.C.J.)

Crown Expert: Toni Brinck

Abel Abdo, Johnathan McLennan and Dominique Jermaine Wilds were jointly charged with six offences including conspiracy to commit murder. At the close of the Crown’s case they moved for a directed verdict of acquittal in relation to that count. The Crown alleged that the three accused acted in concert in ambushing and trying to murder the victim, Mr Din, as they believed that he had stolen $1,400 from Wilks and McLennan after a joint cheque fraud scheme.

In his analysis the trial judge noted that the Crown had called Toni Brinck, an expert in firearms from the Centre of Forensic Sciences. He identified two aspects of her evidence which supported the Crown’s case, at the directed verdict stage at least, that the three men were all part of a conspiracy to kill Ding. First, the trial judge noted that Brinck explained that “when semi-automatic handguns are loaded with ammunition, the firearm must be ‘racked’ in order to load a projectile into the firing chamber” [at para. 33]. The trial judge held, in relation to this aspect of the evidence, that “[a]s no witness observed Mr. Wilks, or anyone else, rack the firearm that was used to shoot Mr. Din, the jury might reasonably infer that Mr. Wilks had earlier racked the firearm while he was waiting in the Honda Accord with Mr. Abdo” [at para. 33].

Second, the trial judge noted that the shooting incident itself also supported an inference of an intent to kill supported by the evidence of Brinck:

The evidence also supports the reasonable inference that, in shooting Mr. Din, Mr. Wilks had the necessary intention for the offence of murder. According to Mr. Din, Mr. Wilks had initially pointed the firearm at his upper body, and he was only shot in the groin area during their ensuing struggle over the firearm. Then, according to Mr. Din, after he was shot, and was lying on the ground, Mr. Wilks stood over him, and again pointed his semi-automatic handgun at his upper body. Mr. Din testified that, at that point, he said: “stop, don’t do this.” Mr. Din then heard a “click” sound two or maybe three times. According to the evidence of Ms. Toni Brinck, a jammed semi-automatic firearm could make such a clicking noise by pulling the trigger. Pulling the trigger of a semi-automatic firearm while it is pointed at the upper body of an intended victim, reasonably supports an inference that the person intended to kill his victim, and might have been successful if the gun had, fortuitously, not been jammed. [at para. 39].

R. v. Rodney, 2016 CarswellOnt 20181 (Ont. C.J.)

Crown Expert: Shane Staniek

Tevyn Rodney and Justin Mohammed were charged with discharge firearm and mischief in relation to a shooting at a home. The Crown alleged that Mohammed was the shooter and Rodney the driver. The Crown called witnesses to the shooting, a jailhouse informant and a firearms expert, Shane Staniek from the Centre of Forensic Sciences. The evidence about the shooting was straightforward:

On October 7, 2014, Ashauntay McLean, then age 12, was asleep in her bedroom at 43 Cataraqui Cres. Her mother, Cherrice Green, was in the basement with a male friend. At 1:23 a.m., they heard shots being fired into their home. Police later found four bullet markings around the front door, two on the left side, one through the door and one above it. Chillingly, one bullet was found in a lamp shade beside a couch where Ms. Green’s son, Shethar, was sleeping. A police officer from Forensic Identification Services found four shell casings outside the house. The next day, a Toronto Community Housing officer found a fifth bullet fragment nearby. [at para. 4].

The jailhouse informant testified that while sharing a cell with the accused he overheard reference to an SKS Scorpion. More specifically, he noted that Mohammed described the gun used as an SKS Scorpion and that he had gotten out of the car and fired eight to nine bullets contained in the clip.

The Crown’s expert, Staniek, qualified as an expert in firearms, testified that (i) of the recovered “5 cartridge cases were of 30 calibre and shot from the same automatic or semi-automatic firearm . . . [and] that but for the fifth projectile, this type of firearm was capable of firing the bullets used here” [at para. 5]. Further, Staniek testified that the Scorpion could have fired those bullets including four of the ones recovered by the police. The trial judge noted that there was no mention in the media of the type of rifle that was used. The accused were convicted.

R. v. Cater, 2014 CarswellNS 604 (N.S. C.A.)

Crown Expert: Special Firearms Officer Michael Press

Cater was one of a number of individuals who were the target of a Part VI authorization to intercept private communications. The authorization was a substantial part of a massive investigation into drug and firearm trafficking. The investigation along with the intercepted communications lead to Cater being charged on two separate informations containing a total of 23 charges. All charges ultimately proceeded to trial on a single information in the provincial court.

At trial the Crown sought and was granted permission to tender expert evidence on a host of topics related to firearms. Following a voir dire on Special Firearms Officer Michael Press’ qualifications, he was qualified by the court to give opinion evidence on:

firearm identification, classification, test firing, firearms and ammunition trafficking, illegal movement of firearms including crime guns sources, firearm concealment, street and coded language relating to firearms including illegal street prices of firearms and ammunition. [at para. 92]

The only part of the officer’s qualifications that were contested by the defence related to “street and coded language relating to firearms and illegal street prices of firearms and ammunition.

At the conclusion of the 15 day trial Cater was convicted of most of the offences and sentenced to eight years in the penitentiary. Cater appealed both the convictions and sentence.

Many of the grounds of appeal related to Cater’s claim that the findings were unsupported by the evidence. In disposing of this ground of appeal the Court noted that:

Expert evidence was led at trial as to the meaning of certain code words used by the conversants, as well as the voice identification of the individuals whose conversations were being intercepted and later transcribed. Besides that expert evidence, Judge Derrick also listened carefully and repeatedly to the intercepts herself, prompting her to confirm in her decision:

[86] I am left with no doubt as to who was speaking on these intercepted calls. After listening to the intercepts, I can identify the voices of Kyle Cater, Paul Cater, and Torina Lewis which I find to be readily recognizable. I accept the opinions of Det/Csts. Pepler and Mansvelt on the identity of all the voices on the intercepts, although I have to say that self-identification, identification by others, and context permitted me to draw my own firm conclusions . . . At para. 32

Thus the expert evidence in conjunction with the trial judge’s own assessment of that evidence was more than adequate.

All grounds of appeal were dismissed.

R. v. Edwards, 2016 CarswellOnt 13682 (Ont. S.C.J.)

Crown Expert: Det. Scott Ferguson Crown Expert: Dr. Robert Gerard

Edwards was charged with four criminal offences all arising out of a single incident involving a firearm. Edwards was alleged to be among a group of males arguing at the York University Student Centre. The argument escalated and Edwards is said to have pulled out a handgun. People fled and as in the chaos that ensued Edwards tripped, fell and discharged the firearm. Two were injured by the shot.

Surveillance video both from the university and the surrounding public transit system led to the arrest of Edwards. On much of the video the individual believed to be Edwards his holding himself in a particular way, concealing his face, keeping his hand in one pocket and repeatedly clutching his waistband. At trial the Crown sought to tender the expert evidence of Det. Scott Ferguson to testify about his assessment of whether the person on the video displayed “the characteristics of an armed person” and specifically whether those characteristics are consistent “with that of a person carrying a firearm.” [at para. 4]

Following Edwrads’ arrest his pants, jacket and a ball cap were sent to the Centre of Forensic Science for examination for gunshot residue (GSR). All three items tested positive for GSR. The Crown sought to call Dr. Gerard as an expert to explain GSR and conducted the examination in this case.

With respect to Det. Ferguson the defence took the position that he was not a properly qualified expert.

Counsel contends that he has basically taken a three hour course with Det. Steve Horwood, his predecessor as Provincial Coordinator in 1998-99 and he has repeated it ever since. Although he has lectured about the subject to officers throughout the intervening years he has not published any articles, conducted any research and his views are not supported by any scientific studies. His opinions are based largely on his own limited experience having been on assignment to a Gun Task Force for three months.” [at para. 18]

The Court disagreed and was:

satisfied that Detective Scott Ferguson had acquired the necessary special knowledge in the area of illegal firearms and the behaviour or characteristics of those who carry firearms as a result of his training and experience acquired over the past 25 years sufficient to permit him to give evidence as to the characteristics and behaviours of an armed person. [at para. 24]

The Court however did limit the scope of Det. Ferguson’s evidence. Defence argued that even if Det. Ferguson is permitted to testify about the general characteristics of an armed person, he should be prevented from viewing the video in this case in front of the jury and offering his opinion about the characteristics displayed by that individual.

The Court agreed and held that:

(. . .) there is some danger with the officer commenting directly on his observations of the video that the person displays characteristics consistent with being armed, to verge on jury’s role of addressing the ultimate issue as to whether the person, if identified as the accused possessed a firearm. It has the potential to displace the jury’s own inferential assessment by them in deference to the officer’s opinion as an expert. [at para. 35]

With respect to the evidence of Dr. Gerard, it was conceded that he was a properly qualified expert. However the defence sought to limit the scope of his testimony and prevent him from speaking about the:

significance of the number of particles found on the articles examined or to comment on the percentage rate of particle transfer, based on an unpublished study he and others at the Centre of Forensic Sciences have conducted recently. [at para. 38]

The Court saw no basis to “limit the expert’s comments as to the significance or lack of significance as to the number of particles detected on examination of the articles based on his experience as a forensic scientist examining articles for GSR.” [at para. 59]

The Court did however see a basis to limit the evidence of diminishing percentages of particle transfer given that the study this theory is based on had not yet been submitted for peer review or yet reported to the scientific community. [at para. 61]

R. v. B. (S.), 2013 CarswellOnt 7090 (Ont. S.C.J.)

Crown Expert: Not identified

BS was charged with first degree murder in the shooting death of 16-year-old Tyrone Bracken in Toronto. Text messages suggested that there was a plan afoot between BS and others to do harm to Tyrone that day. Video surveillance around the location of the shooting revealed BS and a co-accused on the premises of the apartment complex where the shooting took place.

At the conclusion of the Crown’s case, BS brought a motion for directed verdict. In dismissing the motion, the Court relied on the expert evidence called by the Crown. The expert reviewed the video surveillance and opined that the mannerisms and characteristics of BS were consistent with someone armed with a firearm. In looking at the inferences available from this body of evidence on the directed verdict motion Nordheimer J. held that:

There is expert evidence that suggests that the applicant may have had a heavy object in the front pocket of the sweat shirt or hoody that he was wearing. The same expert gave evidence that, after the shooting, when the applicant and Trevon F. are seen running from the scene, it is less apparent that there is any object in the pocket of the applicant’s hoody but, at the same time, Trevon F. is seen running in a manner that, according to the expert, is consistent with someone who has a gun in his possession. [at para. 8]

6:80 Handwriting

R. v. Owen, 2015 CarswellOnt 9333 (Ont. C.A.), additional reasons 2015 CarswellOnt 11079 (Ont. C.A.)

Crown Expert: Not identified

Owen was convicted of fraudulently transferring his mother’s property to himself. The mother suffered from dementia. Although Owen had provided support for her and assisted in managing her finances by the time of the fraudulent transfer Owen’s sister had power of attorney.

The Crown tendered expert handwriting evidence to show that the transfer of property was a forgery. The defence called no expert evidence. Owen was convicted. He appealed. One of the grounds of appeal was that the trial judge failed to review the expert testimony in the charge to the jury. The Court dismissed this argument noting that:

Regarding the alleged failure to review the expert’s testimony, it is neither necessary nor advisable for a trial judge to explain expert testimony or technical evidence: see Daley, at paras 59-62. The trial judge in this case provided the jury with the positions of each counsel in respect of the expert evidence. Again, nothing more was required. [at para. 37]

From the verdicts the Court of Appeal found it obvious that the jury concluded:

that the deed and its accompanying land transfer tax affidavit had not been signed by the appellant’s mother and that the appellant had used a forged document to convey the property to himself. [at para. 16]

R. v. Cole, 2015 CarswellOnt 7066 (Ont. S.C.J.)

Crown Expert: Peter Pajos

Cole was charged with first-degree murder. The Crown alleged that she produced a forged Will in which she was named as the sole beneficiary and then set fire to her victim’s home. The victim died in the fire. In a pretrial application, the Crown sought a ruling on the admissibility of letters produced by Ms. Cole some two years earlier in the same “cut and paste” method.

In ruling that the letters were admissible, the court accepted the expert evidence about both the methodology and signatures [at para. 91]

R. v. Williams, 2013 CarswellOnt 1915 (Ont. S.C.J.)

Crown Expert: Jennifer Comstock-Seavers

Williams was charged with first-degree murder. As part of the investigation police seized letters and documents, which were subject to a pre-trial application on admissibility.

The Crown sought to call a handwriting expert, Ms. Comstock-Seavers to testify about these documents. The defence argued that Ms. Comstock-Seavers lacked the qualifications necessary to be qualified as an expert.

The only issue on the Mohan inquiry was whether the proposed expert was sufficiently qualified. The defence argued that:

• the proposed expert’s work had not been peer reviewed; [at para. 15]

• the supervisory oversight, short of peer review, was lacking; [at para. 17]

• the “Document Section at CFS does not employ the same nine-point classification system utilised by the Scientific Working Group of the American Society for Testing Materials, but, rather, a five-point classification system.” [at para. 20]

The Court noted Ms. Comstock-Seavers’ training and experience as an employee of the Centre of Forensic Sciences. With such employment comes additional training and experience.

The Court noted that although handwriting is something that jurors are permitted to make their own comparisons of “it is especially desirable to have expert evidence when dealing with handwriting comparison.” [at para. 12]

The Court rejected the defence arguments and was:

fully satisfied that the proposed witness has special knowledge, acquired by a combination of training and experience, sufficient to qualify her as an expert in the field of handwriting analysis. In the result, the witness will be permitted to give opinion evidence respecting the documents she has examined in this case. [at para. 23]

Moreover, the Court specifically rejected the argument that the CFS standard is suspect simply because it differs from their American counterparts:

I note, however, that the expert opinion evidence of other forensic document examiners employed by CFS is routinely accepted by courts in Ontario; for two examples, see R. v. Ward, [2003] O.J. No. 4491 (Ont. S.C.J.) and R. v. Botha, 2011 ONCJ 326, [2011] O.J. No. 2934 (Ont. C.J.). Although the qualifications and experience of each examiner will be different in each case, presumably each of them employs the same protocols for examining and, in turn, classifying documents. Therefore, I see no reason why the present witness’ qualifications should be suspect on this basis.

Moreover, in the realm of examining documents, it seems to me, as a matter of logic, that there is no particular significance to be attached to the number of different categories into which one can opt to classify a questioned document. I note, for example, that in R. v. McKay (1980), 55 C.C.C. (2d) 548 (Man. Prov. Ct.), an RCMP document examiner testified that he typically used seven categories in which to classify questioned writings. There is no evidence before me, nor is it intuitively obvious, that simply because the system utilized by CFS has fewer categories than another system of classification it is therefore inferior. [at paras. 20-21]

6:90 Motor Vehicles and Vessels

R. v. Subramaniam, 2017 CarswellAlta 16 (Alta. Q.B.)

Crown Expert: Kenneth Anthony McLeod

Crown Expert: RCMP Officer Mark Podesky

Defence Expert: James Graham

Subramaniam was charged with dangerous driving causing death of two people and dangerous driving causing bodily harm of three people. Subramaniam was the commercial driver of a bus at the time of the accident. The three individuals who sustained bodily hard were passengers on the bus. The two individuals who died in the accident were in a Jeep that the bus struck.

At trial Mr. McLeod was called by the Crown and was qualified by the Court as an expert on mechanical inspections. Mr. McLeod performed a vehicle inspection on the bus after the collision. He opined that the bus was in good mechanical condition prior to the accident.

Officer Podesky was called as a Crown witness and qualified as an expert on accident reconstruction. Officer Podesky concluded that:

the bus was traveling northbound in the outside lane with its passenger side tires in the ditch and the driver side tires on the roadway. He could not determine where the bus left the roadway, as there were many tire tracks from multiple vehicles. The bus re-entered the roadway oriented in a northwest direction. It continued northwest diagonally across the center line into the southbound lanes. Then the Accused made a steering correction to the right at which point the bus started to yaw, side-slipping and rotating clockwise, to the center line where impact occurred with the Jeep which was travelling southbound. The Jeep, which had braked and started to steer to the left in an avoidance technique, partially under, rode the bus on impact. Both vehicles then travelled together into the side ditch. Corporal Podesky concluded that the cause of the collision was failure of the bus driver to keep the bus properly orientated in its lane of travel. [at para. 57]

An additional factor that Officer Podesky considered was the eroded edge of the road way and the depth of a drop between the surface of the road and the shoulder. This factor was summarized as follows by the Court:

The shoulder width varies, as it is not a smooth line due to erosion. A 37 to 38 meter section of the road is in a state of disrepair in the area where the bus was off of the shoulder and then re-entered the road. There is a 4 inch drop from the road to the soil. Corporal Podeski (sic) stated that the solid white fog line is always present, however photos taken on July 8, 2015 show that the road edge is worn so much at points that the fog line is not visible; there is erosion right onto the roadway. [at para. 62]

Officer Podesky testified “the depth of drop-off was a consideration as to whether the road edge contributed to the accident, but it did not change his conclusions.” [at para. 63]

Mr. Graham testified at trial on behalf of the defence. He was qualified as an expert on accident reconstruction and is a mechanical engineer by trade.

Although Mr. Graham agreed with most of Officer Podesky’s observations and measurements he opined that:

the contributing causal factors of the collision included: (i) failure of the bus driver to maintain the driving lane; (ii) an unusually narrow shoulder in the area of the collision, and (iii) the presence of a vertical drop-off (ragged edge) along the east edge of the asphalt shoulder. [at para. 71]

Thus the significance of the road edge became the focus of the Crown and Defence arguments.

The Crown did not:

dispute that a sharp road edge may cause a driver to overcorrect. However, the Accused did not say that he overcorrected because the tires of the bus slipped over that sharp road edge. Therefore, the defence expert’s opinion that a sharp road edge can cause a driver to overcorrect is irrelevant. [at para. 88]

The Defence on the other hand argued that the:

evidence with respect to the road configuration and state of disrepair is critical. There were no signs leading to the area warning of the narrowing of the shoulder from 3 meters down to a matter of inches, the dangerous shoulder edge drop-off or suggesting a speed reduction because of the particular condition of the road. There were also no rumble strips to warn drivers when they crossed the fog line. The only sign that appeared to be in place was the “no passing” sign. [at para. 91]

Ultimately the Court acquitted the driver off all of the offences. The Court relied significantly on the expert evidence about the drop-off and state of disrepair of the road shoulder. The Court noted in particular the areas of agreement between the experts.

Given the experts’ evidence as to the very narrow width of the shoulder, the state of disrepair of the shoulder in terms of the sharp drop-off at the edge of the shoulder, and the lack of warning signs in advance, the reasonable driver could not be expected to appreciate the risk of moving to the shoulder at or near the posted speed limit to make room for a passing vehicle which was cutting the driver off. [at para. 127]

R. v. Reinbrecht, 2015 CarswellBC 3107 (B.C. S.C.)

Crown Expert: Corporal Richard Harry

Defence Experts: Justin Beaumont; Timothy Leggett

Reinbrecht was charged with criminal negligence causing death and criminal negligence causing bodily harm arising out of a night time collision between his speedboat and a houseboat operated by the deceased, Mr. Brown. [at paras. 1-2] There was no evidence to suggest the accused was impaired by drugs or alcohol when operating his vessel, however, Mr. Brown was impaired by both at the time of the collision. [at para. 454]

Corporal Harry, of the RCMP’s West Coast Marine Services was qualified as an expert in the reconstruction of collisions between vessels. He offered opinion evidence about the angle of engagement between the two vessels and the standard of operation of motorized vessel in darkened conditions. [at para. 73]

Justin Beaumont was qualified as a defence expert permitted to give “expert opinion evidence on the operation of watercraft in Canadian waters with specific reference to the Collision Regulations.” [at para. 76]

Timothy Leggett, a mechanical engineer was qualified as an expert and permitted to give expert opinion evidence in “the area of marine accident reconstruction, specifically in respect of the angle of engagement of the vessels, speed of the vessels and the status of their navigation lights.” [at para. 76]

With respect to Corporal Harry’s opinion the Court rejected it unless it was confirmed by other evidence the court accepted. The Court held that Corporal Harry failed in his role as an expert witness by:

• engaging in partisan activities such as trying to prevent a defence expert from testifying;

• demonstrating a willingness to reach conclusions with incomplete information and an unwillingness to accept he had made a mistake even when clearly had;

• providing an inaccurate and misleading diagram to the court expressing his opinion in a critical area — the angle of engagement of the vessels. [at paras. 299-303]

The Court’s view of Corporal Harry’s evidence was in fact conceded by the Crown who agreed that his evidence should not be relied upon unless it was “uncontroversial.” [at para. 305]

With respect to Mr. Beaumont’s evidence the Court found his explanations helpful and that his opinions “all accord with common sense.” [at para. 499]

The Court accepted much Mr. Legget’s testimony and concluded that notwithstanding the gaffs made by Corporal Harry these two experts were in fact in agreement about the angle of engagement.

In a decision totalling 532 paragraphs with detailed summaries of the complex evidence, the Court concluded that Reinbrecht was guilty as charged.

R. v. Lilgert, 2013 CarswellBC 2249 (B.C. S.C.); R. v. Lilgert, 2014 CarswellBC 3783 (B.C. C.A.)

Crown Experts: Dr. Lee Alexander; Captain Flotre

Mr. Lilgert was a ferry boat operator and in control of the vessel when it struck an island and sank in 430 metres of water. Two of the 101 people on board died. A jury found Lilgert guilty of two counts of criminal negligence causing death.

Captain Flotre offered his expert opinion that Lilgert’s conduct demonstrated an “extreme and catastrophic dereliction of duty, breaching the standard of care practised by reasonable mariners with his degree of experience and training.” [B.C.S.C. at para. 9]

Dr. Alexander opined that the ECS demonstrated that the vessel made no changes in course until immediately prior to the crash and proceeded in a straight line for the island at an elevated speed. [B.C.C.A. at para. 27]

Lilgert appealed his conviction. One of the grounds of appeal was that the trial judge failed to adequately instruct the jury on the standard of care against which Lilgert’s conduct was to be assessed. In dismissing this ground of appeal, the Court of Appeal referred extensively to the testimony of the experts and noted that “the objection taken now is inconsistent with the Crown’s marine expert, Captain Flotre, who was not challenged on his testimony regarding the duty” of care.” [B.C.C.A. at para. 31]

Moreover the Court of Appeal noted that the judge’s charge to the jury extensively reviewed the testimony of the experts as to what was expected of a professional mariner acting in Lilgert’s capacity. [B.C.C.A. at para. 38] The Court noted that the review of this evidence in the judge’s instructions to the jury comprised more than 22 pages of transcript. [B.C.C.A. at para. 38]

R. v. Locke, 2015 CarswellBC 3583 (B.C. S.C.)

Crown Expert: Scott Wessell

Joshua Locke was charged with several offences, including criminal negligence causing death, arising out of a collision wherein two young women were killed and a third was seriously injured. Locke was with the three young women “hanging out” by the river. A fifth person, Brandon McKinnon was also with them. Locke had consumed some drugs and some alcohol. The group decided to head back to town, Fort Nelson, and Locke decided to drive them in his car. En route Locke lost control of his car, leaving the roadway and crashing. The car flipped several times. The three girls, who were all seated in the back of the car, were thrown from the car. Two of them died from the injuries they received in the crash. The third young woman suffered serious injuries but survived. Locke and McKinnon both survived.

Locke admitted that his blood alcohol concentration [BAC] was over the legal limit. He also admitted that he had been driving dangerously. He contested, however, that his conduct amounted to criminal negligence and he also contested that his driving was the “cause” of the deaths and bodily harm. On this latter point, Locke testified that just before he lost control McKinnon reached over and grabbed the steering wheel; the young woman who had survived the accident supported this version of events. McKinnon denied this.

At trial the Crown sought to call Scott Wessell as an expert in accident reconstruction. Wessell was employed by the RCMP. The defence admitted his expertise and his report.

Wessell’s expert evidence touched on four central issues. First, the manner in which the crash occurred. On this point, Wessell testified that the vehicle began a “counter clockwise rotation” and crossed the centre line and oncoming lane of traffic, entering into the ditch on the other side of the road. There the vehicle tripped and rolled [at para. 159].

Second, Wessell testified that the speed of the vehicle, at the moment the spinning commenced, was approximately 121 km/hr and that at “takeoff” when it left the roadway, the vehicle was travelling at 99 km/hr and the tumbling speed was between 86 and 95 km/hr [at paras. 160-164]. The calculation of these speeds was thoroughly considered and set out by the court which noted that in coming to these determinations, Wessell “disregarded” his first critical curve velocity in favour of a “fall formula” [at paras. 160-161].

Third, Wessell testified that there was no evidence of braking [at para. 165].

Fourth, Wessell testified that there were four seatbelts in the car but only the front passenger, McKinnon, was buckled in at the time of the crash [at para. 166].

In cross-examination, Wessell conceded that he could not comment on whether another person had interfered with the steering of the car.

R. v. Natsis, 2014 CarswellOnt 14197 (Ont. C.J.)

Crown Experts: Shawn Kelly; Hewitt; Kern

Natsis was the driver of a motor vehicle involved in an accident that caused the death of Bryan Casey. Natsis was charged with impaired operation and over 80 causing death as well as dangerous driving causing death. At trial the Crown sought to tender the expert evidence of three accident reconstructionists. The defence opposed the admissibility of each of the proposed expert witnesses.

The defence argued that each of the proposed experts were neither independent nor impartial. And further that each expert had engaged in tunnel vision and confirmation bias. [at paras. 7-11] Lastly the defence argued that the peer review process was flawed.

Kozloff J. held that all three experts were quailed and that their evidence was admissible. The weight to be given to their respective evidence would be an issue at trial. [at paras. 265-267]

Kozloff J. held that the term peer review in the context of expert evidence:

is not intended — nor in my view should it be expected — to have the same meaning as peer review has in the academic context (that is, a process in which articles, papers, theses, and other works are submitted for evaluation by independent researchers and/or specialists in the relevant field, area, or discipline prior to acceptance for publication. [at para. 260]

The Crown argued that each proposed witness satisfied the Mohan criteria and that the defence criticisms are without an evidentiary foundation but even if true would affect the weight not the admissibility of the evidence. [at paras. 11-12]

R. v. Laine, 2015 CarswellOnt 10308 (Ont. C.A.)

Crown Expert: Officer Brad Pearsall

Laine was convicted of two counts of criminal negligence causing death and one count of criminal negligence causing bodily harm. Laine was driving with five friends when he lost control of his car and struck a hydro pole; two were killed, one was seriously injured. Laine appealed the convictions and sentence.

On appeal Laine argued, inter alia, that the verdicts were unreasonable because the expert evidence taken at its highest revealed that Laine was 20-30km/h over the speed limit-which according to Laine is not criminal negligence.

The Court of Appeal summarized the expert evidence with particular emphasis on the “critical curve speed which is the maximum speed at which a motor vehicle can negotiate a corner and remain centered within its own lane” [at para. 12]. This evidence in addition to that of the surviving passengers amply supported the trial judge’s verdict.

R. v. Plumpton, 2014 CarswellAlta 1074 (Alta. Q.B.)

Defence Expert: Mark Sawa

Plumpton was charged with four counts of dangerous driving causing bodily harm. The accused ran a stop sign and as a result four people were seriously injured including the passenger in Mr. Plumpton’s car.

Mark Sawa, an accident reconstructionist, testified for the defence. He opined that Plumpton was travelling at about the speed limit at the time he ran the stop, just below the speed limit at the time of the collision. Mr. Sawa also provided a hypothetical maximum speed the vehicle could have been travelling at.

The court accepted the expert evidence and in so doing noted that the Crown did not call an accident reconstructionist to rebut any of Mr. Sawa’s opinions and conclusions. [at para. 79]

R. v. Rogers, 2013 CarswellOnt 9775 (Ont. S.C.J.)

Crown Experts: Officer Brett Carson; Officer Brad Pearsall; Officer McLaughlin; Jeremy Dupuis

Defence Expert: Gordon Jenish

Rogers was charged with dangerous driving causing death and three counts of dangerous driving causing bodily harm. Rogers was alleged to have been texting while driving when his car drifted from its lane and continued into oncoming traffic.

Carson and Pearsall were called as an expert accident reconstructionists by the Crown; their qualifications were not challenged. [at paras. 28 and 41]

McLaughlin examined Rogers’ vehicle concluded that there were no mechanical defects which could have caused the accident. [at para. 39]

Dupuis testified that Rogers’ cell phone received a text message less than 30 seconds before the accident and that the text message had been read.

Jenish was called by the defence; he is a professional engineer in the field of accident reconstruction. Jenish agreed that there were no mechanical defects in the vehicle. However, he challenged many of the Crown experts’ opinions. One aspect that was challenged was the fact that Pearsall relied on vehicle measurements and dimensions obtained through a computerized library commonly used by reconstructionists, instead of obtaining the exact measurements of the particular model from the manufacturer.

The Court found flaws in the Crown expert evidence and in particular the methodology of the measurements obtained by non-continuous tire marks. The court concluded that “the Crown’s accident reconstructionist provided a probable scenario, it was not sufficiently reliable, based on the lack of continuity of the tire mark and ability to observe the tire marks contrasted with the evidence of Mr. Jenish” [at para. 100]

R. v. Kardos, 2014 CarswellOnt 18983 (Ont. S.C.J.)

Crown Expert: Officer Bohdan Sybydlo

Defence Expert: Scott Walters

Kardos was charged with dangerous driving causing death. Kardos struck a pedestrian who later died of her injuries. At issue in the trial were two key points:

1. what direction was the pedestrian travelling at the time of the collision?

2. were other vehicles stopped at the crosswalk when the accused proceeded through it?

With respect to the first issue, two opposite scenarios emerged from the evidence and expert evidence was tendered in support of each. Officer Sybydlo, was qualified as a collision reconstructionist and offered opinion evidence on the speed of the vehicle and the direction of travel of the victim at the time of the collision. [at para. 34]

Scott Walters, an engineer, was qualified as a defence expert in collision reconstruction [at para. 40]. He opined that the victim was travelling in the opposite direction that the Crown expert believed and that the maximum rate of speed of the vehicle was 5km/hr less than what Officer Sybydlo concluded. [at para. 41]

They highlighted a number of concerns with respect to the Crown expert evidence. First, the Court found that the officer’s evidence was internally inconsistent with respect to the speed of the vehicle was also being referred to as the speed the deceased attained upon being struck. [at paras. 62-63]

Second, when shown a photograph of a dent in the accused’s car, the officer denied seeing such a dent even though he was the individual who had marked the dent for identification. [at para. 64]

Third, and most significant, was what the Court considered to be “Officer Sybydlo’s unwillingness to consider any version of events” and his dismissal “of things that did not fit with what he believed happened.” [at para. 65]

The court concluded that it could not rely on Officer Sybyldo’s evidence to contradict the accused’s version of what transpired and as such entered an acquittal. [at paras. 71 and 74-75].

R. v. Bacchus, 2015 CarswellOnt 10035 (Ont. S.C.J.)

Crown Expert: Bohdan Sybydlo

Officer Sybydlo was qualified as an expert on consent. The Court held that it had “no reason to questions Mr. Sybydlo’s expertise or his findings” and respected “his 21 years’ experience as an accident reconstructionist, his 40 years as a police officer and his experience as an expert witness.” [at para. 92]

The Court relied on the expert evidence in a number of ways. First, as a basis to reject some of the accused’s evidence. Second, to rule out the possibility of mechanical issues which would have prevented the accused from avoiding the collision. Third, to find beyond a reasonable doubt that the accused could have stopped his vehicle before striking the pedestrian and had he failed to do that stopped after he struck her and before he ran over her. [at para. 128]

Relying firmly on the expert evidence, the Court convicted concluded that notwithstanding the slow speed of the vehicle at the time of the collision:

the facts compel me beyond a reasonable doubt to the conclusion that Mr. Bacchus’ otherwise safe driving became a danger to the (pedestrian), as it would have been to any other member of the public in (the pedestrian’s) place, in the way he encountered her in the crosswalk. Seeing the pedestrian, even briefly, on the corner and in the crosswalk on a green light, and failing to stop, seeing and feeling the impact of the collision and continuing to drive and roll over her when he could have stopped, and then continuing slowly around the corner like nothing had happened, I find, constitutes a marked departure from the standard of care that a reasonable person would observe in the circumstances [at para. 136]

R. v. Alves, 2014 CarswellSask 482 (Sask. C.A.)

Defence Expert: Cst. Low

Alves was charged and acquitted of dangerous driving causing bodily harm. Alves was driving and had a passenger. Alves lost control of his vehicle and crashed into a guardrail injuring both himself and his passenger.

Cst. Low was called as a Crown expert at the preliminary hearing. At trial he was called as a defence witness. [at para. 5] Cst. Low provided evidence of the vehicle’s speed just before the accident (about 50% above the posted speed) limit and at the time of impact (roughly the posted speed limit).

The trial judge concluded that although excessive speed could constitute dangerous driving in this case it did not. The Court relied on the evidence of Cst. Low about the speed the car was travelling.

The trial judge also accepted “Cst. Low’s analysis that the roadway in question was a major freeway in the city, and that although the immediate area was under construction at the time and the posted speed limit was 60 kilometres per hour, no actual construction involving workers or equipment was in the area at the time of the crash.” [at para. 9]

The Court of Appeal dismissed the appeal. [at para. 59]

R. v. Malkowski, 2015 CarswellOnt 19168 (Ont. C.A.)

Crown Expert: Not identified

Malkowski was charged and convicted of dangerous driving causing death. The victim was a 13-year-old girl killed while trying to cross the road. Relying on expert evidence the trial judge found that Malkowski was travelling 152km/hr at the time of the collision. The posted speed limit was 50km/hr. [at para. 2]

At trial, the accused argued and the trial judge rejected that the victim ‘darting’ out into the roadway was an intervening event that broke the chain of causation. Relying in part on the expert evidence the Court of Appeal dismissed the appeal. The Court held:

Here, the appellant was driving 152 km/h in a 50 km/h zone. The accident reconstruction evidence did not reveal any effort at braking. This is not a case where there is any risk of punishing the morally innocent. [at para. 20]

R. v. Neidig, 2015 CarswellBC 3462 (B.C. C.A.)

Crown Expert: Cpl. Whitfield

Defence Expert: Dr. Peter Cripton

Neidig was charged with criminal negligence causing death, impaired driving causing death and over 80 causing death. Neidig’s friend was the victim. He had been ejected from car that the Crown alleged Neidig was driving. The only issue at trial was the identity of the driver. At trial Neidig argued that a stay should be entered as the police had failed to preserve the motor vehicle and thus affected his ability to make full answer and defence. The trial judge granted the stay and the Crown appealed.

Cpl. Whitfield, an expert accident reconstructionist, was on scene following the accident. He took over 200 photographs and measured and examined the scene. [at para. 8] Cpl. Whitfiled prepared a report. Following his examination of the vehicle it was towed to a secure police garage and later to a secure storage area. It was later disposed of by a company that recovers scrap vehicles. Neidig was not advised at the time.

Dr. Cripton was retained by the defence and provided evidence on:

• the importance of having access to the vehicle as soon as possible after the accident;

• examining the vehicle many months later can still yield important information;

• the photographs gathered by the officers on scene were inadequate as they did not show window, seatbelt component, ejection portal and interior vehicle damage;

• biomechanical reconstruction is enhanced by personal inspection;

• in well over 50% of the cases he’s been involved in the damaged vehicles have been available to him. [at para. 21]

In subsequent reports, Dr. Cripton opined that he was unable to determine where the occupants were sitting and that there were “severe limitations” in the reports prepared by the Crown expert. [at para. 22]

The stay application was properly heard at the conclusion of the evidence. The trial judge adopted Dr. Cripton’s opinion that:

It is more likely than not that additional evidence, relative to the biomechanical reconstruction of this incident, including determination of injury mechanisms and occupant seating positions, would have been available to and discovered by a biomechanical engineer had the vehicle been available for inspection by such an expert, specifically Dr. Cripton. Function of seat belts, condition of retractors and evidence of occupant use was prevented because of vehicle destruction. [at para. 26]

The Court of Appeal granted the appeal and ordered a new trial. The Court of Appeal noted that:

The Crown correctly points out that Dr. Cripton’s evidence fell well short of an assurance that, had he examined the Blazer, he would have discovered evidence demonstrating Mr. Neidig was not the driver when the accident occurred. His assessment may have revealed inculpatory evidence, weakening Mr. Neidig’s defence. Alternatively, he may have reached the same conclusion as that evinced in his trial evidence: that he is unable to determine the positions of the occupants at the time of the accident.

This may well be the optimal conclusion for Mr. Neidig and that, along with the following evidence, satisfies me that he is able to effectively advance his defence that the Crown cannot prove identity. Dr. Cripton testified to multiple deficiencies in the police investigation which provide a fertile field for cross-examination of the Crown’s witnesses. As well, he has provided an alternative explanation for the bruising on Mr. Neidig’s chest that Cst. Hennessey interpreted as injuries from his seat belt. There are as well Mr. Neidig’s own statements that he was not driving, and that he has no recollection of what occurred. Finally, the judge may draw an adverse inference against the Crown due to the destruction of the vehicle. Given these circumstances, while the absence of the Blazer may have made it harder to advance this defence, I am satisfied it did not cause irreparable prejudice to Mr. Neidig. [at paras. 69-70]

R. v. Delac, 2014 CarswellOnt 16186 (Ont. S.C.J.)

Crown Expert: Officer Jeff Vance

Delac was convicted of dangerous driving. The trial judge found that Delac drove at an “excessive rate of speed in heavy traffic in a fatigued state” [at para 2] Delac collided with a vehicle and “set off a chain reaction of other accidents.” [at para 2]

Officer Vance was qualified as an expert in crash data retrieval. Officer Vance concluded that in the 5 seconds prior to the accident the brakes were not applied. [at para 18] This finding of fact by the trial judge was challenged by Delac on appeal.

The Court of Appeal noted that Officer Vance’s opinion was that there was no evidence of braking and that it was open to the trial judge to make this finding notwithstanding any eyewitness evidence to the contrary. [at paras. 24-28] The appeal was dismissed.

R. v. Dhillon, 2013 CarswellBC 1815 (B.C. S.C.), affirmed 2015 CarswellBC 2531 (B.C. C.A.)

Crown Expert: Margaret Spady

Navdeep Dhillon was charged with importing 30 kilograms of cocaine into Canada and possession of the cocaine for the purpose. Dhillon was driving his tractor-trailer into Canada from the United States; he was referred to secondary inspection as he attempted to cross the border. His tractor-trailer was searched by border service agents with the assistance of a detector dog. The agents discovered the cocaine behind two access panels in the trailer’s refrigeration compartment. It was the Crown’s theory that Dhillon was a drug courier working with a man named Patel. Defence argued that Dhillon was a “blind courier”.

The Crown called Margaret Spady. Spady was the co-owner of a long-haul trucking company. She was qualified as an expert on the trucking industry — in particular, to give evidence about commercial truck transport, trucking routes, commercial trucking rules and regulations and maintenance of driver’s logs. As part of her evidence Spady analyzed the logs kept by Dhillon. Spady provided evidence about those logs and how they compared with receipts kept by Dhillon for his trips. Amongst other things, the court drew the following conclusions in large part on the basis of Spady’s evidence:

(a) The truck went down empty. Ms. Spady said that trucks do not go down empty to southern California unless there is a premium load there waiting for them. Cheap loads like lumber are available fairly easily, which would at least pay for the cost of fuel for the southbound trip. I appreciate that this is the carrier’s concern, not necessarily the driver’s, but nonetheless this unusual aspect (going down empty) would have been known by the driver;

(b) It was unusual for the truck to be dispatched without a load having been brokered. Mr. Dhillon left Surrey and crossed the border on the evening of the 13th, yet the almond load was only brokered to City Link on the 15th;

(c) Mr. Dhillon records his destination as Firebaugh, California in his first day’s log, yet as already noted this load was not brokered until the 15th. On the evidence before me, I conclude that this destination was put in the log on or after the load was brokered on the 15th; and

(d) Mr. Dhillon’s log shows that he travelled to Pasadena and some points in between, a destination that is much farther south than Firebaugh. Pasadena is close to Los Angeles and Firebaugh is close to Fresno. There is no identified purpose for travelling much farther south than necessary.

6:100 Toxicology

R. v. Hartman, 2018 CarswellOnt 22032 (Ont. C.J.)

Crown Expert: Dr. Daryl Mayers

Hartman was charged with the sexual assault of RC. Hartman, RC, RC’s boyfriend MT and others were at a house party. RC and her boyfriend were among the guests that chose not to drive home that night. They shared an air mattress for the night. RC woke up to a “pain in her anus and her clothing down around her thighs. She had no idea how her clothing was taken down.” [at para. 5]. RC woke her boyfriend and yelled that she had woken up “with that man’s dick in her ass.” [at para. 5] Hartman told MT that he was sorry and that “I think I just woke up making out with your girlfriend.” [at para. 5]

Dr. Shapiro a specialist in sleep disorders was called by the defence.

In reply the Crown called Dr. Daryl Mayers, a forensic toxicologist. Dr. Mayers offered expert opinion evidence on the effects of alcohol on memory. In cross-examination he provided projected blood alcohol concentrations based on various drinking patterns. [at paras. 221-224]

The Court summarized his evidence, in part, as follows:

Mr. Mayers had prepared a report and adopted same in these proceedings. With the scenario initially provided to him, his written report provided a projected blood alcohol concentration for Mr. Hartman at 3:30 a.m. of 260 to 340 milligrams of alcohol in 100 millitres of blood, and at 6:00 a.m. the projection would be 210 to 320 milligrams of alcohol in 100 millitres of blood.

Mr. Mayers was very clear in providing his evidence to the Court that he could only provide general information as he had never assessed Mr. Hartman personally. [at paras. 220-221]

In finding Hartman guilty of sexual assault, the Court rejected the evidence of Dr. Shapiro and held that:

It is improbable that any lack of memory is a result of anything other than an alcoholic blackout associated with the consumption of a large amount of alcohol over a period of four hours. [para. 342]

R. v. Aroozoo, 2018 CarswellOnt 6890 (Ont. C.J.), affirmed 2018 CarswellOnt 18299 (Ont. S.C.J.)

Crown Expert: Betty Chow

Aroozoo was charged with operation of a motor vehicle with a blood alcohol content over 80mg of alcohol per 100ml of blood.

At trial the Crown called Ms. Chow, a toxicologist from the Centre of Forensic Sciences. Ms. Chow was qualified as an expert witness.

Her qualifications were conceded by the defence. The cross-examination of Ms. Chow was summarized by the Court as follows:

The defence put to the witness a hypothetical scenario where at the end of a social drinking situation, a person’s blood-alcohol level would rise and it could be up by 10 per cent by the time of last driving and up a further 20 per cent when they were eventually tested. The witness stated that her numbers could not simply be changed as what was proposed to her was a “last drink scenario”, and a new calculation would have to be made and the plateau would not apply. The witness stated that even with that scenario, the person would still have a blood-alcohol concentration of 95.

She agreed that the calibration of the intoxilyzer accepts a variation of less or more than 10 per cent for the standard alcohol solution.

The witness was asked about the rate of alcohol elimination. In her opinion, she used a range of alcohol elimination of between 10 and 20 per cent and indicated that the average in the literature is about 17 per cent. She believed that the lowest she had seen in the literature was 8 per cent, which would not change the blood-alcohol concentration in this case. The witness was shown a study where there was an instance of a subject with an elimination rate of 5.9 per cent. She did not dispute that there was such a subject but believed it was “incredibly low”. She stated that people who fell below this elimination rate had issues with their livers. She stated that very rarely do people fall below a 10 per cent elimination rate. [at paras. 9-11]

The thrust of this cross-examination was to suggest that the assumptions upon which the expert calculation of blood alcohol concentration at the time of driving did not apply in every scenario.

Although the existence of these scenarios is possible the court noted that:

What is lacking here is some “case specific” evidence which would bring these scientific assumptions into doubt. The suggestion that there could exist a hypothetical situation which may bring the readings into doubt does not in my opinion satisfy this burden. It does not reverse the burden of proof, but it does require some evidence that in this specific case, the standard scientific assumptions may not be applicable. [at para. 19]

Aroozoo was found guilty as charged.

R. v. Dewey, 2016 CarswellOnt 19214 (Ont. S.C.J.)

Defence Expert: Ismail Moftah

Eric Dewey was driving his car erratically. He hit the curb a number of times. He stopped his vehicle, left it running, and fell asleep. He was found passed out in the driver’s seat. His driving had been so bad the tires on his car were flat and the rims damaged. When the police found him they had difficulty waking him. “His eyes were unfocused and there was a strong smell of alcohol on his breath. His speech was slurred. The police officers had to help Mr. Dewey out of the car and to the sidewalk” [para. 9]. Dewey was arrested for impaired driving.

Back at the station Dewey refused to provide a sample — he wanted to speak to a specific lawyer than his wife. The police refused this latter request. Dewey was charged with impaired and refusal.

At trial, Dewey testified that he was prescribed and took various medications, including Ativan (Lorezapam) — he was on a 0.5 milligram dosage for the past 30 years. He testified that he did not recall a doctor warning him about not driving while taking Ativan. He personally did not think it was “problematic to combine alcohol with the Ativan” [para. 18]. Dewey testified that on the day of the offence he took his usual dosage. He then had a glass and a half of wine at the Keg and 30 to 40 minutes later he headed home.

At trial, defence called Dr. Moftah — an “expert on absorption and elimination of alcohol from the body and the effects of alcohol and drugs on the body” [at para. 22]. Dr. Moftah testified in relation to two areas. First, the BAC for Dewey based on his reported consumption. Dr. Moftah opined that his BAC would have been around 32 — the judge extrapolated that to be 0 at the time Dewey was in the breath room. Dr. Mohtah also opined that the signs of impairment observed would not have been produced by the alcohol (alone) consumed, as reported by Dewey.

Second, Dr. Moftah provided an opinion about the cumulative effect of alcohol and Ativan:

Dr. Moftah opinion that it was unlikely the impairment observed in Mr. Dewey was caused by Ativan alone given the lengthy history of Mr. Dewey’s use of the drug.

Dr. Moftah opined that Mr. Dewey’s observed behaviour could arise from the combination of the Ativan and alcohol. Dr. Moftah testified that the effect of alcohol on the Ativan could, in some people, enhance the effects of Ativan by as much as 10 fold. In others, not at all. Dr. Moftah referred to this as a “synergistic effect” causing the effects of Ativan to be a lot more than “it used to be”.

The entire thrust of Dr. Moftah’s opinion for the Defence was the possible effect on Mr. Dewey from a combination of the Ativan and alcohol:

Q . . . in your opinion, would the Lorezepam have been interacting on his body in conjunction with the, the alcohol from the Chardonnay?

A. It certainly it would.

. . . . .

Q . . . could he still have been feeling the effect of those two drugs in his system at the time of the driving?

A. Yeah, he, he could.

. . . . .

Q. [After viewing videotape in the breath room] . . . would the effect that you’ve described to us on the body still have been likely operating on Mr. Dewey at the time he was in police custody at the station?

A. Yeah, it would have because Ativan, as we said, it’s half life it’s 12 hours and you have half of the amount after 12 hours, and in some literature, it could go up to 16 hours.

[paras. 25-27].

Dr. Moftah was not asked about whether the “possible synergistic effect” of combining Ativan and alcohol would “continue after the alcohol had been completely eliminated” [para. 28].

Dewey was convicted of the refusal but acquitted of the impaired. The trial judge concluded that

I am willing to believe that it might reasonably be true that the impact of each was enhanced by the other, thus increasing the more usual signs of Lorazepam or alcohol, dizziness, lightheadedness, drowsiness, clumsiness, unsteadiness and slurred speech, all of which was shown by the defendant. I, on all the evidence, believe it might reasonably be true — again with some serious reservation — that despite the length of time the defendant has taken medication or to some extent because of the length of time the defendant might honestly not have recalled the warning he was given initially in respect of the danger of taking medication with alcohol and serious impairment which could result therefrom.

. . . . .

It’s the last section [of W.D.] which shall we say gives Mr. Dewey the out. His own evidence quite frankly as far as I was concerned was not sufficient to raise a reasonable doubt even combined with Dr. Moftah’s evidence. However, when one looks at the evidence as a whole and sees the state of the defendant as described by civilians, so far as I’m concerns that evidence is and provides sufficient evidence to raise a reasonable doubt.

. . . . .

There is in my opinion sufficient evidence overall to raise a reasonable doubt as it relates to the impaired driving.

The Crown appealed. Dewey appealed.

With respect to the expert evidence, the Court of Appeal held that the trial judge erred by embarking upon a “description of ‘synergism’ and ‘potentiation’ from sources not described or in the evidence at trial”. This error led the trial judge, improperly, to conclude:

(a) the “doctor’s regrettably confused in regards of the meaning of synergism and potentiation.”

(b) “Clearly, as I noted, he doesn’t appreciate the very basic distinction between synergism and potentiation, and nor can he say which might be occurring”. He concluded “It struck me that he was simply reading from the book [Compendium of Pharmaceuticals and Specialties] and his report is simply the contents of what’s in the book describing what will take place if you take Lorazepam.”

Notwithstanding this error, the court upheld the conviction on the refusal and the acquittal on the impaired.

R. v. Lam, 2014 CarswellOnt 6776 (Ont. C.J.), reversed 2015 CarswellOnt 5072 (Ont. S.C.J.), leave to appeal refused 2016 CarswellOnt 17668 (Ont. C.A.), leave to appeal refused 2017 CarswellOnt 5744 (S.C.C.)

Crown Expert: Daryl Mayers

Defence Expert: Ismail Moftah

Bill Lam was speeding. He was stopped by the police. The police observed indicia that led them to suspect that Lam was impaired. A roadside sample confirmed that suspicion. Lam was arrested. A breath demand was made. Lam later provide a breath sample indicating that his BAC was over the legal limit. He was charged.

At trial, the Crown called Daryl Mayers, a forensic toxicologist from the centre of forensic science. The defence called Ismail Moftah.

The issue at trial related to the impact of a failure by the police to comply with the “Recommended Standards and Procedures” for maintenance of the approved instrument. The court outlined the evidence of Moftah in relation to this issue:

Based on the recommendations of the ATC, Mr. Ismail Moftah, a toxicologist and expert in the use and operation of the Intoxilyzer 5000C, called by Mr. Lam, gave his opinion that Officer Simpson was not operating the approved instrument properly because it had not had annual maintenance at the time that it was used. He further testified that the fact that repairs were done when the machine was finally sent out for annual maintenance gave him further concern about the accuracy of the readings.

In Mr. Moftah’s expert opinion, the fact that the test records produced by the intoxilyzer itself, which are admissible under s. 258, show it to be functioning properly, does not remove his doubts about the reliability of the breath tests yielded by the improperly operated instrument. He considered the problems identified in Mega-Tech’s sales order, particularly the flooding, to be significant.

In cross-examination, Crown counsel put to Mr. Moftah that the Table of Contents of the ATC recommendations did not include their recommendation regarding annual maintenance under the heading of Operation Procedures and he agreed, but pointed out that it was only a table of contents. He also did not have any basis to say that the flooding that was described in the sales order actually meant that there was trouble with the machine on September 8, 2008 when Mr. Lam provided his samples.

He also agreed that nothing in the recommendations of the ATC stated that a failure to comply with any of them would cast a doubt on the accuracy of the results. Given the evidence of the prosecution’s expert Dr. Mayers and the law, this is what this case is about.

Mr. Moftah agreed that the ATC recommendations stated that “Proper calibration and/or calibration check procedures are the primary means of assuring accuracy of the Approved Instrument, Approved Screening Device and Accessory Equipment at the time of use”. ATC had issued a position paper, after Mr. Lam’s arrest and test in which they stated:

Records relating to periodic maintenance or inspections cannot address the working status of an AI at the time of a breath test procedure and are intentionally absent from the requirements listed above.

In a passage relevant to the crux of this case, the committee in their position paper also stated:

Thus, while a failure to adhere to such quality assurance measures could lead to instrument malfunction, this occurrence will be detectable by the quality control tests done during the breath test procedure.

Mr. Moftah did not agree that a problem would necessarily show up in the quality control tests or that problems with the maintenance detected after the test could not be relevant to the accuracy of the tests.

Mr. Moftah also testified that if Mr. Lam’s blood alcohol level was as stated in the results of the intoxilyzer analysis, Mr. Lam’s breath blood alcohol level would have been greater than 80 mg. of alcohol in 100 ml. of blood when Officer Gomes stopped him. It is clear inference from his calculations that one beer would not have produced the results of the analyses. [paras. 20-27].

The court then reviewed the evidence of Mayers, the expert called by the Crown:

Dr. Daryl Mayers testified for the prosecution in reply. He is also an expert in the intoxilyzer 5000C. He is a member of the Alcohol Test Committee and participates in the preparation of the recommendations on which Mr. Moftah bases his opinion and the 2012 position paper explaining the relevance of maintenance records.

Dr. Mayers disagreed with Mr. Moftah. In his opinion, the fact that the instrument accepted the breath samples and produced the test record showing that all the calibrations and requirements of the instrument were met, enabled him to say that it appeared to him that the instrument was in proper working order and as a result could give reliable and accurate results of the individual tested at the time that they were tested.

He agreed that the recommendation of the ATC regarding annual maintenance and inspection was a good recommendation but stated that it was not a guarantee that the machine will be working properly. The fact that the instrument had not been sent for annual maintenance at the time of the tests, does not, in his opinion, mean that the instrument is not working properly at the time of the tests. As a scientist, the data most applicable to making the determination of whether or not the instrument is working properly is the information supplied by the Intoxilyzer test record. And in this case, as Mr. Moftah confirmed, the intoxilyzer test records showed that the instrument was working properly.

Dr. Mayers stated that he was not an expert in the maintenance of the intoxilyzer. But with respect to the flooding that was noted by Mega-Tech in its sales order regarding the maintenance on the intoxilyzer, he did know of the issue of flooding. In his opinion the intoxilyzer would not have been able to operate had it been flooded either entirely at the time of the test, or at a previous time and the flooding had not been completely purged at the time of the test. If either of those had occurred the technician would not have been able to perform Mr. Lam’s test because the instrument would have given an ambient failure message. In his opinion the fact that the technician was able to take samples, that is that the instrument accepted them, shows that any flooding did not affect the result.

This part of Dr. Mayers’s evidence is important when applying the statutory language to what occurred here.

Further, in Dr. Mayers’s opinion, the fact that the ATC divided their recommendations into different sections regarding maintenance and operation is significant. Any problem that had occurred during the period when a machine had not been sent in for maintenance would show up in the test record, in his opinion. He also explained that the purpose of the 2012 position paper was to clear up any confusion about the recommendations regarding maintenance relating to the proper operation of the machine. In his opinion, and in the opinion of the ATC that he explained, annual or periodic inspection would not have any bearing on the operation of the machine.

Dr. Mayers did agree that there were toxicologists, though fewer and fewer, who disagreed with him and agreed with Mr. Moftah on the issue of whether failure to comply with the annual maintenance recommendations was relevant to the proper operation of the instrument and he further agreed that it was a subject on which toxicologists could reasonably disagree. [paras. 28-34].

Relying on the evidence of Moftah, and portions of the evidence of Mayers, the court found that Lam had led evidence which tended to show that the approved instrument was malfunctioning or was operated improperly. The court explained this conclusion:

Mr. Lam has proven that the approved instrument that the qualified technician Officer Simpson used on September 8, had last been sent for maintenance more than one year prior to that date. As this period is not within the recommended interval between inspections in the recommended standards and procedures of the Canadian Society of Forensic Science Alcohol Test Committee, Mr. Lam submits that he has presented evidence tending to show that the “instrument was operated improperly” within the meaning of the section and that the prosecution has not proven beyond a reasonable doubt that his blood alcohol level was the same as the results of the analyses at the time that he was stopped. [para. 5].

The Crown appealed. The summary conviction appeal court allowed the appeal. The appeal court held that “the trial judge had misapprehended the evidence of a toxicologist called as an expert witness by the Crown and had further erred in relying on the evidence of a defence toxicologist that the failure of an annual inspection meant that the approved instrument was ”operated improperly“, thus defeating the application of s. 258(1)(c). Whether the instrument was ”operated improperly“ was a question of law for the trial judge to decide, not an issue upon which the expert witness was entitled to offer an opinion” [para. 7 ONCA].

Lam appealed to the Ontario Court of Appeal. Leave was denied. He appealed that decision to the Supreme Court. That application was dismissed.

R. v. Kler, 2016 CarswellOnt 16613 (Ont. C.J.)

Crown Expert: Laura Gorczynski

Kler was charged with operating a motor vehicle while impaired by drug. Kler was stopped at a RIDE check at the entrance to a plaza parking lot. At trial the Crown called a toxicologist who tested Kler’s urine for drug metabolites.

At trial, the Crown called toxicologist Laura Gorczynski — who was qualified by the court as an expert in:

in the analysis of drugs, alcohol and other poisons in biological samples; in the ingestion, absorption, distribution and elimination of drugs, alcohol and poison in the human body; and on the impairing effect of drugs, alcohol and poison on the human body and on the ability to operate a motor vehicle. [at para. 30]

The Court found Ms. Gorczynski to be a credible witness. “She gave her evidence clearly and fairly. In particular, Ms. Gorczynski was very careful to explain the limits of what the toxicology testing of the urine sample done in this case is able to prove.” [at para. 30]

Ms. Gorczynski testified that numerous different drug metabolites were found in Kler’s urine. The limits of this type of testing was explained by the toxicologist as follows:

for most of the drugs, the presence of the various metabolites showed that Mr. Kler consumed certain types of drugs some time previously, but that the presence in the urine could not show that he had taken a particular drug recently, and thus could not show that the drug would still be present in his system at the time he was driving in a way to cause impairment. Two of the drug metabolites were exceptions to this conclusion, the presence of Carboxy-Tetrahydrocannabinol (“Carboxy-THC”), which relates to marijuana, and 6-Monoacetylmorphine (“6-MAM”), which relates to heroin. [at para. 31]

The Court described Ms. Gorczynski’s evidence as very fair particularly with respect to the fact that the what are described as indicia of impairment could have other causes. Moreover, she testified that:

if a person had all the drugs actively in their body (i.e., in their bloodstream) at one time that Mr. Kler’s urine showed metabolites for, then the person would be impaired. But, she testified that the toxicology results done on Mr. Kler’s urine were incapable of showing that all of the drugs for which metabolites were found in the urine were active in his bloodstream at the time he was driving, because a urine sample effectively shows what has left the body. Blood test results would be needed to show what, if any, drugs were in Mr. Kler’s bloodstream and thus had the potential to currently affect his driving at the time he was driving. Ms Gorczynski also testified that urine sample findings cannot be used to determine effects of drugs on a particular individual at a given time, including impairment, since they do not necessarily mean that there was a blood concentration of a drug at that time or drug effects at that time. Thus, urine findings cannot show level of impairment. [at para. 37]

The Court acquitted Kler and in so doing noted that:

these cases are difficult for the Crown, given the limits of urine testing with respect to the ability to test for specific levels of a drug that one would expect to cause impairment. There is no analog in the drug impairment context to the offence of operation of a motor vehicle with excess blood alcohol. But these realities do not lower the Crown’s burden of proof. [at para. 42]

R. v. Blanchard, 2016 CarswellAlta 2462 (Alta. Q.B.)

Defence Expert: Dr. Charl Els

Blanchard was charged with attempted murder, kidnapping, unlawful confinement, aggravated sexual assault, possession of a weapon, uttering threats and breaching releasing conditions.

The victim testified at the preliminary hearing. Before the trial took place she was shot and killed in an unrelated matter. Her preliminary inquiry evidence was presented at trial pursuant to s. 715 of the Criminal Code of Canada.

The victim at the time of the offences was homeless. She described how she would couch surf at various friend’s places and often spend her days walking around. That was what she was doing on the day she was attacked by the accused. She recounted how, she had taken shelter in the stairwell of the accused’s apartment building. Blanchard had spoken to her on his way in and offered to have her into his apartment; she refused. Shortly after this exchange when the victim was getting warm in the stairwell, Blanchard attacked her, held her at knife point and dragged her to his apartment. Once inside the accused held her down touched her buttocks, vagina and breasts. He stabbed, beat and strangled the victim. She managed to call 911. Police responded and the victim was rescued. She was transported to hospital and received 27 stitches to her various wounds.

The accused testified and denied the offences. He claimed that the victim entered his apartment without his permission, said she had just used crack and was hungry. The accused testified that he tried to chase the victim out his place and that her injuries resulted from this attempt to have her leave and recover items he believed she stole from him.

The defence theory was that the victim’s behavior, as described by the accused, could be explained by her consumption of drugs.

Dr. Els was called by the defence and qualified as an expert and permitted to provide “opinion evidence on the symptoms of drug intoxication withdrawal from drugs and the effects of both on cognitive functions.” [at para. 158]

The Court found Dr. Els to be eminently qualified as an expert but expressed difficulty with the way defence sought to use Dr. Els’ expert opinion.

The Court summarized Dr. Els’ opinion and some of the difficulties with it as follows:

Dr. Els was asked to provide an opinion as to the cause of the Complainant’s behaviour at different points in time. One of the facts that Dr. Els was asked to assume as true for the purpose of his opinions was that the Complainant had a “history of using crack cocaine by smoking it”. There are two concerns with this assumption. First, the evidence does not support that the Complainant was smoking crack cocaine around the critical times in question. Second, he was asked to assume a fact that effectively was the opinion counsel sought then to elicit. However, he was not provided with many of the facts which would have been relevant and material to the opinion he was asked to give. He was told to assume other facts which were neither proven nor admitted. [at para. 159]

The Court found that because of the hypothetical facts that he was instructed to assume his resulting opinion was based on a narrow set of facts attributed largely to use and withdrawal from various drugs. The exception however to this opinion was described as follows:

While he opined that many of the symptoms exhibited by her could be attributed to her possible withdrawal from cocaine use, he then applied the caveat that this opinion is well founded as long as it is not better explained by a medical condition like a head injury which would manifest many of the same symptoms. [at para. 160]

Ultimately, because of these shortcomings the court accepted very little of what Dr. Els’ evidence:

In short, an expert opinion is only as good as the facts supporting the opinion. I found Dr. Els to be an eminently qualified medical expert in the area of drug use, intoxication, withdrawal from drugs and the effects of both on cognitive functions. He was asked to assume a fact not proven and which was designed to elicit the exact opinion sought. In arriving at his opinion, he was not asked to consider the cumulative effect of all the facts relevant and material to a proper opinion as to the causes of the Complainant’s behaviour at the different points in time. There was also evidence at trial that some of the facts he was asked to assume could easily be explained, and likely caused, by factors other than drug use or withdrawal.

As a result, I find Dr. Els’ opinion that the Complainant’s behaviour was likely caused by crack cocaine consumption or withdrawal to be of little probative value. He was not provided with enough information to opine on whether her behaviour was consistent, or more consistent, with other causes. [at paras. 173-174]

The accused was convicted as charged.

R. v. Rak, 2015 CarswellOnt 15163 (Ont. C.J.)

Crown Expert: Dr. Karen Woodall

Ernest Rak pleaded guilty to trafficking in a controlled substance, Fentanyl. He was detained in custody pending sentence after his plea. The Crown called an expert witness at the sentencing hearing; Karen Woodall was qualified as an expert in forensic toxicology and testified.

Rak was sentenced to 651 days of jail and 12 months of probation.

With respect to the evidence of Woodall the court noted that she testified that Fentanyl was “an extremely powerful opioid drug . . . 100 times stronger than morphine, and 20 times stronger than heroin” [at para. 11]. The court also noted that the evidence supported the conclusion that Fentanyl can be made into pills and people may be ingesting it not knowing that it is actually Fentanyl [at para. 13].

Woodall also testified that she published a paper which reported that “over half of the cases that were reviewed related to persons abusing fentanyl from their own prescriptions” [para 23]. She further testified that there “the data that she has reviewed is consistent with what she termed a ‘dramatic shift’ from Oxycontin abuse to fentanyl abuse, which occurred when Oxycontin regulations were changed to make the abuse of Oxycontin more difficult” [at para. 24].

As part of the imposition of sentence the court noted, inter alia, that “fentanyl is a very dangerous drug. There needs to be a strong message that trafficking fentanyl in the community will be met with a significant jail sentence” [at para. 42].

R. v. Cloutier (August 11, 2014), Doc. 13-6351, [2014] O.J. No. 4783 (Ont. C.J.)

Crown Expert: Dr. Karen Woodall

Cloutier plead guilty to a single count of trafficking in fentanyl. At the sentencing hearing the crown called Dr. Woodall as an expert witness on fentanyl its proven dangers [at para. 9].

The purpose of the expert evidence was to provide the court with knowledge of a relatively new drug in the trafficking market and its deadly effect which is often unknown to users.

Dr. Woodall testified that fentanyl is a synthetic opioid analgesic with properties similar to heroin, morphine and codeine. Fentanyl is used in the medical field to control chronic pain. Dr. Woodall described fentanyl as 100 times stronger than morphine and 20 times stronger than heroin. She testified that as part of her responsibilities with the Centre of Forensic Science Dr. Woodall reviews all drug related deaths in Ontario. “fentanyl has taken over as the drug of choice for abuse and the number of deaths from the abuse of fentanyl has increased in Ontario as of late. There are now in fact, more fentanyl related deaths than there are heroin related deaths she testified.” [at para. 6]

Justice Wilson’s acceptance Dr. Woodall’s evidence was cited with approval in R. v. Gatfield, 2015 CarswellOnt 14606 (Ont. C.J.).

6:110 Trace Evidence

6:110:10 Glass

R. v. Caron, 2014 CarswellBC 752 (B.C. C.A.)

Crown Expert: Not identified

Caron was convicted of sexual assault, unlawful confinement and uttering threats. Caron appealed.

Caron’s two victims were walking to the store when Caron pulled up beside them and offered them a ride. The two accepted. Once at the store, with one of the girls out of the truck Caron drove off and tried to beat the second victim into sexual submission. She escaped. The only issue at trial was whether Caron was the attacker. The victim testified that as she struggled she repeatedly kicked at her attacker. At one point she heard the windshield crack. When she heard the crack the victim said was pushing her attacker’s arm or hand and not directly against the windshield.

“A glass examination expert testified that that the windshield crack was caused by a low velocity force applied from inside the truck.” [at para. 14] On appeal Caron argued that the “trial judge drew an impermissible inference that there was no innocent explanation for the windshield crack (. . .)” [at para. 17]

The Court of Appeal disagreed and held that the trial judge properly considered the evidence. Specifically, that “Mr. Caron told his father the crack was caused by a force coming from outside the truck, contrary to uncontested expert evidence that it was cause by a blunt force from inside the truck” [at para. 54]

6:110:20 Hair

R. v. Hay, 2013 CarswellOnt 15286 (S.C.C.)

Defence Experts: Johanne Almer and Richard Bisbing

Hay was convicted of first-degree murder and attempted murder after a shooting at a Toronto nightclub. Hay’s appeals lead him to the Supreme Court of Canada where he offered a substantive ground of appeal as well as a motion for fresh evidence. [at paras. 1-2]

At trial, the Crown argued that following the shooting Hay took steps to change his appearance including shaving his head. The Crown tendered evidence of hair clipping found inside a razor in Hay’s nightstand and in a newspaper in the bathroom.

As part of the fresh evidence application the defence offered two forensic experts. Each prepared an affidavit and were cross-examined by crown counsel. Ms. Almer examined the hairs that were introduced at the trial.

In her initial report, she concluded, based on an examination of the diameter and shape of the individual hairs, that 68 percent of the hairs in the newspaper and 48 percent of the hairs in the razor were indicative of facial or trunk origin. The remaining hairs could have been facial, trunk or scalp hair. [at para. 59]

Mr. Bisbing endorsed the methodology used by Ms. Almer and recommended that a representative sample from Hay be obtained for comparison. Following this testing Ms. Almer opined that:

if a particular outlier hair from Mr. Hay’s scalp sample was excluded from her calculations, she would conclude that at least 91 percent of the hairs from the newspaper and 70 percent of the hairs from the razor did not originate from Mr. Hay’s scalp. Mr. Bisbing also conducted a second examination and agreed with Ms. Almer’s findings. [at para. 61]

The Supreme Court of Canada allowed the motion for fresh evidence and ordered a new trial. [at para. 78]

6:110:30 Textiles

R. v. K. (J.), 2016 CarswellOnt 19708 (Ont. S.C.J.)

Crown Expert: Not identified

KJ was charged with sexual assault, assault and a number of breaches of bail conditions. The complainant and KJ were in a domestic relationship. The two met at a homeless shelter where the victim lived and shortly after meeting KJ was invited to move in with him.

The complainant alleged that the accused had sexually assaulted her. During the course of that sexual assault the complainant testified that her shirt was ripped off her body.

At the preliminary hearing the Crown called a textile expert. The expert testified about a shirt she had examined. The shirt was identified by the complainant as the one she was wearing at the time of the sexual assault and had been torn off her body by the accused.

What the expert could say for sure is that the shirt had been ripped, not cut with a scissors, and that the shirt had not been through the laundry since the time it was torn. That said, the expert was clear that nothing she observed was conclusive as to when the tearing of the shirt took place: “The garment could have been damaged and then put away in a closet and not looked at for a year or could be given to me immediately. I would not be able to tell the difference of time between the two garments.” [at para. 71]

At trial, the textile expert’s transcript from her testimony at the preliminary inquiry was filed along with her report.

The Court found this evidence to be at odds with the complainant’s testimony:

As indicated, the Complainant testified that the pink shirt was ripped off her body, not pulled over her head. At trial, the forensic officer unfolded the shirt from the property bag in which it had been stored, and held it up for the court to see. It was obvious that although it was torn in the front, the sleeves were intact and the tear did not extend around the back of the shirt. It appeared to be physically impossible for the shirt to have come off a person’s body without going over the head. There was simply no opening for a person’s torso to slip out of the shirt. [at para. 72]

The Court concluded that:

the physical evidence is contrary to the Complainant’s testimony. She said it was torn off her body rather than pulled over her head, but it obviously was not. One cannot pull a shirt off a person’s body if there is a partial tear but not a complete opening around the chest or middle of the shirt. For one reason or another, the Complainant got this description wrong. [at para. 80]

Ultimately, the accused was found not guilty.

R. v. Cargiol, 2015 CarswellOnt 18502 (Ont. S.C.J.)

Crown Expert: Barbara Doupe

Shawn Cargioli was convicted of first-degree murder; Famien Morrison and Kendal Kamal were convicted of second-degree murder. The victim had been stabbed during an attack which led to his death.

As part of its case, the Crown sought to call Barbara Doupe, a scientist from the Centre of Forensic Science [CFS] in Toronto. Doupe is a scientist working in the hair fibres and textile-damage section. The Crown sought to qualify her to give an opinion that “cut marks” in the back of the parka worn by the deceased were caused by “recent” stabs into that jacket. The defence took the position that the evidence was simply common sense and that the jury did not need expert evidence in this area.

Doupe had a Master of Science related to cloths and textiles and had previously been employed in testing of cloths and textiles. In relation to this case, working for the CFS she examined the parka worn by the victim. The court explained her evidence as follows:

She examined two cut marks in the back of the parka under a microscope which magnifies to 64 times. She explained that yarn is made up of small fibres. Under the microscope she could see that the cut yarn ends were neat, clean and even. She categorized the cuts as “recent damage”. By her definition “recent” means that the garment has not been washed, and has not been worn in a manner that would cause wear to the area in question, since the cuts were made. On this definition, she obviously cannot actually date when the cuts occurred. As she acknowledged if the cuts were made, and the garment was then hung in a closet for five years, it would still be classed as “recent” damage.

In her experience if there had been wear to the area of the cuts the yarn ends would cease to have the uniform, as originally manufactured, look that she observed. She also testified to seam separations in the parka where threads holding the seams together had broken. She assessed this as recent damage due to the fact that the holes that the thread had passed through were still open. She explained these holes tend to fill in with wear. She was also able to give the opinion that the force which broke the thread was a pulling force applied perpendicular to the seam. This would be consistent with a person moving forward and having the jacket grabbed from behind; a person being stationary and the jacket being pulled off straight back or a combination of these perpendicular forces. [at paras. 57-58].

The court held that the evidence was admissible. Based on her education and work experience, her access to and knowledge of instruments, including microscopes to do the examination and her ability to relate her observations to factual findings, the evidence was necessary and admissible.

6:120 Environmental Science

R. v. Krajnc, 2017 CarswellOnt 6548 (Ont. C.J.)

Defence Expert: Dr. Anthony Weis (environmental scientist)

On June 22nd, 2015 a tractor trailer carrying 190 pigs stopped at a traffic light about 100m from its final destination — a slaughterhouse. Animal rights activists had gathered in anticipation of the truck’s arrival, including Ms. Krajnc. Some of the activists were talking to the pigs, some were petting them and some were giving them drinking water. The driver got out of the truck and approached Ms. Krajnc. He asked what she was doing. She replied that she was giving the pigs water as they were thirsty. The driver told her to stop and called her a rude name. Ms. Krajnc continued to give the pigs water until the truck drove off to the slaughterhouse. The exchange between Ms. Krajnc and the driver was recorded by other protesters. The driver reported the incident to his employer. The employer called police. The police charged Ms. Krajnc.

In her defence Ms. Krajnc called four experts, one of these experts was an environmental scientist.

Professor Tony Weis was qualified as an “expert in geography and environmental studies to provide evidence on the historical transformations of agriculture, the environmental impacts of industrial livestock production and the social impact of the globalization of livestock production.” [at para. 102] Dr. Weis was permitted to give opinion evidence on the negative environmental impact of factory farming. [at para. 103]

Dr. Weis testified that:

that factory farming is a most inefficient means of providing nourishment for the world’s population. It requires more land, requires the use of more grain, more water and more natural resources to feed animals to feed people rather than just feeding those natural resources directly to the people.

He warned that as the population of the Earth grows, using factory farms to create animal meat for human consumption will result in humanity’s inability to feed itself.

He further discussed the concerns about how factory farming is a prime cause of greenhouse gas emissions and global warming.

He concluded that the maintenance of an animal-based diet for human consumption is not a sustainable model of sustenance for the human population of this planet. [at paras. 104-107]

Other that the summary of the evidence, the Court does not appear to have relied on it in any substantial way.

Ms. Krajnc was acquitted. [at para. 143]

6:130 Footwear Impression

R. v. Bye, 2017 CarswellOnt 9764 (Ont. C.A.)

Crown Expert: John Norman

David Bye and Robin Browett were cellmates. On December 13, 2011 the unit was in lockdown and the two had been confined to their cell for more than 24 hours. When officers were searching a nearby cell for contraband Bye began yelling that Browett had passed out. Officers entered the cell, Bye was holding Browett who was on the floor shaking and had an obvious head trauma.

Browett was transported to hospital and required brain surgery.

He had a large skull fracture on the right side of his head and a small contusion on the opposite side of his brain, attributed to the brain bouncing against the opposite side of the skull. The surgeon who performed the surgery was of the opinion that a significant amount of force would be required to cause such a fracture, and although such an injury could conceivably result from falling, it was unlikely that a single fall would result in the injuries observed.“ [at para. 1]

Bye denied assaulting Browett. Browett, still conscious while being transported to hospital, denied being assaulted. Bye was convicted following a jury trial of aggravated assault. Bye appealed his conviction. One of the grounds of appeal related to the expert evidence.

John Norman, was qualified to provided expert opinion evidence “relation to footwear examination and comparison.” [at para. 4]

Mr. Norman’s evidence addressed two issues. First, whether there was evidence of footwear impressions on Browett’s face. Second, whether the shoes located in the cell could be identified as the source of the impressions.

Mr. Norman reviewed the photographs of Browett’s face and concluded that “the pattern of bruising could be footwear impressions (. . .) and that he could not rule out one of Mr. Browett’s shoes found in the cell as the cause of the impressions” [at para. 4]

At trial, the defence opposed the admission of this evidence. The trial judge concluded that it was admissible. In his charge to the jury the trial judge characterized the evidence as “inconclusive and, as such, may not be of any assistance in resolving this case.” [at para. 6]

On appeal, Bye argued that Mr. Norman’s “opinion was so uncertain that it was legally irrelevant” and that it’s prejudicial effect outweighed its probative value. [at paras. 7 and 8] The Court disagreed and held that:

The evidence was inconclusive, but given that the event took place in a prison cell, with a small number of possible causes, the evidence that Mr. Browett’s injuries were consistent with having been struck in the head by a shoe, was legally relevant. [at para. 7]

With respect to argument about prejudice the Court explained:

We also reject the argument that Mr. Norman’s evidence was so prejudicial that if it was admitted, it required a much stronger caution to the jury about its limited relevance. The trial judge’s charge to the jury tracked the wording of Laskin J.A. in R. v. Ferguson (2000), 142 C.C.C. (3d) 353 (Ont. C.A.), at para. 67 approved by the Supreme Court at (2001), 152 C.C.C. (3d) 95 (S.C.C.). In addition, the appellant’s submission is nearly self-refuting. He could plausibly argue that the evidence was so uncertain as to be useless (a conclusion that the trial judge left open to the jury), or that the evidence was so powerful as to be dispositive. He cannot argue both. [at para. 8]

The Court dismissed the appeal.

R. v. Mendez, 2014 CarswellOnt 703 (Ont. S.C.J.)

Crown Expert: John Smissen

The shoes worn by Mendez and Wilson were seized and Mr. Smissen prepared a report. Mr. Smissen concluded that the right and left shoe worn by Mendez could possibly have each made the two impressions found near the scene. He further concluded that Mr. Wilson’s right shoe could have made another one of the impressions.

Mr. Smissen could not:

say that Mr. Mendez’s shoe made the impressions at 4 Coltman or that Mr. Wilson’s shoe made the impressions at 4 Coltman. He did not find accidental characteristics or wear characteristics in the impressions. He was only able to compare class characteristics and size. At best he could say that he could not eliminate the shoes of Mr. Mendez and Mr. Wilson as being the source of those enumerated impressions. [at para. 80]

Mendez and Wilson both challenged the admissibility of the footwear impression evidence on the basis that it had been obtained in violation of their Charter protected rights.

Wilson also challenged the admissibility of the footwear impression evidence on the basis that its probative value is exceeded by its prejudicial effect.

The trial judge rejected this argument and held the following.

First,

Second, there is no issue with the evidence due to methodology, quality assurance or qualifications of the experts. [at para. 171]

Third, any risk can be mitigated by a proper instruction to the jury [at para. 175]

The application judge held:

6:140 Toolmarks

R. v. Sharples, 2015 CarswellOnt 14039 (Ont. S.C.J.)

Crown Expert: Benjamin Sampson

Sharples was charged in the first degree murder of Shana Carter, his common law spouse. The Crown’s theory was that Sharples murdered Shana and disposed of her body. Her remains were discovered two years later in a wooded area.

The Crown sought to qualify Benjamin Sampson as an expert in toolmarks.

After Shana’s remains were located Sharples’ residence was searched. Sampson examined some marks on the bathtub/shower in the second floor bathroom of the residence. Three marks on the shower wall were identified by Sampson as being of interest. So the acrylic shower wall was removed so that Sampson could conduct a more detailed examination. [at para. 6]

Sampson determined that two of the three marks were of no identification value. “The only mark that had any value for examination purposes was marked as Item #28. Regarding this mark, Sampson concluded, ”The characteristics of the damage area to Item #28 are in agreement with damages typically caused by tool such as, but not limited to, a saw or a serrated knife.“ [at para. 7]

In cross-examination on the voir dire:

Sampson acknowledged that there were many different types of saws and serrated knives that could have caused this mark. Moreover, there were no individual characteristics of the mark that would permit him to more particularly identify any tool that could have caused the mark. [at para. 8]

In 2015, Sampson examined a saw blade that had been recovered from the basement of the residence. “Sampson concluded that his saw blade ”could neither be identified nor eliminated as having caused the tool marks on Item #28.“ In cross-examination, Sampson acknowledged that the results of his testing of the saw blade were inconclusive.” [at para. 9]

In assessing the admissibility of this evidence the trial judge applied the framework in Mohan.

The defence conceded that Sampson was properly qualified. The real issue was where the evidence was relevant to an issue at trial.

The Court held that there was no evidence of dismemberment given that the body was found largely intact.

In weighing the probative value and the prejudicial effect the court held:

At trial, if this evidence were admitted, it would be necessary for the trial judge to caution the jurors that they could not reasonably infer from this evidence that Sharples attempted to dismember Shana in the bathtub. To do so would amount to mere speculation, and that would not be a permitted use of this evidence. Therefore, I find that the proposed evidence has little or no probative value.

Regarding prejudicial effect, I accept that any discussion of a possible dismemberment of Shana’s body, without an evidentiary foundation, would be highly inflammatory. It would only serve to distract the jury from the relevant issues. Moreover, if this evidence came from an expert such as Sampson, I find that a jury might be inclined to give this evidence more value than it is worth and could attempt to use this evidence for an impermissible purpose. [at paras. 21-22]

The evidence of the toolmark expert was not admitted.

6:150 Video Analysis

R. v. Apetrea, 2016 CarswellAlta 2353 (Alta. C.A.)

Crown Expert: Ms. Hak

Apetera was convicted after trial of being one of two participants in a series of masked robberies which took place over a three week period in a defined geographic area. The trial judge found sufficient similarities to conclude that the same two men perpetrated the four robberies. The issue at trial was whether Apetrea was one of those people.

Each of the four robberies was captured at least in part on video. When Apetrea was arrested the police seized two hoodies, one with a distinct logo, a baton and lottery tickets. Apetrea testified at trial and admitted that he was depicted on one of the videos which showed him cashing in stolen lottery tickets. He explained however that the tickets were payment for the sale of drugs.

At trial, the Crown sought to qualify Ms. Hak:

as an expert in forensic video analysis to explain how certain video recording may or may not accurately capture the reality of the event being recorded due to the limitations of the recording system, and to compare the various items seized with items depicted in the videos. [at para. 4]

A voir dire was held and the trial judge concluded that the Mohan criteria were met. Specifically the trial judge held that:

Ms. Hak had practical training, experience and study, and possessed skill and knowledge that went far beyond that of the ordinary layman. Expert opinion was relevant since it would allow the trier of fact to view and interpret what was being shown on the video, and would assist the trier of fact in understanding that what was being depicted in the video may or may not accurately portray what was occurring at the time. The trial judge noted that any potential prejudicial effect of Ms. Hak’s testimony, and the strength or quality of her opinion, would come out in evidence and could be fully tested in cross-examination. [at para. 5]

Ms. Hak explained that:

why, when comparing an image captured on video and the physical item, the colours may appear different. She also testified about the importance of relying on points of comparison that cannot vary; focusing or the writing and designs on the front and back of the two hoodies and the stripes on the running shoes. Her opinion was that she could not say that the seized items, being the hoodies, footwear, and baton, were the items captured on the videos. She concluded that the hoodie with the distinctive logo, the baton and the shoes “could not be ruled out as being one and the same”. [at para. 6]

The trial judge reviewed the videos and rejected Apetrea’s various explanations. [at para. 7]

On appeal, Apetrea argued that “the trial judge erred in admitting the expert opinion evidence of Ms. Hak without conducting a proper analysis of the admissibility of her evidence. [at para. 8] Apetrea also argued that Ms. Hak lacked independence and objectivity and that her opinion exceeded the scope of her expertise.

The Court of Appeal rejected both of these arguments.

First, the Court held that the trial judge indeed did address the necessity of her opinion.

Second, the Court held that

Even accepting, without deciding, that Ms. Hak’s evidence of comparing the articles seized with ones in the videos may have crossed the line and exceeded her, or any expertise, she could only say that the articles seized could not be ruled out as the articles in the video. This is not strong probative evidence. The judgment demonstrates that the trial judge reviewed the videotaped evidence, drew his own conclusions, and did not place weight on Ms. Hak’s comparison evidence. He found, based on his own observations, a high degree of similarity between items in the videos and the seized items. The trial judge found that the evidence captured on the surveillance videos and the camera of a citizen who filmed one of the robberies did not permit an absolutely certain conclusion that a particular weapon, piece of clothing, or footwear caught on camera was the precise item seized from the appellant and the stolen SUV. The quality of the video was lacking and surveillance equipment has inherent limitations.

However, the trial judge reviewed the unchangeable markings on the hoodies, baton, and running shoes and found it “mind-boggling” to conclude that the similarities could be the product of coincidence. He concluded that the only rational explanation was that Mr. Apetrea was in possession of the stolen SUV, which contained only his own property or property he had from participating in a robbery. As such, there is no prejudice from any of this evidence. [at paras. 17-18]

6:160 Collision Reconstruction

R. v. Rasaratnam, 2019 CarswellOnt 9874 (Ont. S.C.J.)

Crown Expert: Detective Constable Dawn Mutis

Rasaratnam was charged with dangerous driving causing death. The facts of the case were summarized by the trial judge as follows:

On July 8, 2017, Kugatheesh Rasaratnam made an improper and illegal U-turn from an on-ramp onto a busy urban road. As he did so, Konstantin Diamantopoulos and his sister-in-law, Svetlana Koretskaia, were riding their motorcycles around a nearby curve in the road. Mr. Diamantopoulos managed to take evasive action and avoid Mr. Rasaratnam’s car. Ms. Koretskaia was less fortunate. Her motorcycle collided with the car and she became trapped under it. She later died from her injuries. [at para. 3]

The only issue at trial was:

whether his driving was objectively dangerous, which is the actus reus of the offence of dangerous driving, and whether his conduct was a marked departure from the standard of care that a reasonably prudent driver would exercise in the circumstances, which is the mens rea of the offence. [at para. 4]

At trial the Crown called Det. Cst. Mutis who was qualified to give opinion evidence as a collision reconstructionist. The Court summarized her qualifications and training as follows:

D.C. Mutis has been a police officer for 32 years. She is apparently a “Level 4” reconstructionist, which is the highest level of reconstructionist within the TPS, and has been so designated since 2004. She has taken a number of courses and seminars in the area of collision reconstruction since 2000. I note that almost all of these courses and seminars were provided by police departments in Canada and the United States. [at para. 37]

The trial judge expressed concerns about Det. Cst. Mutis’ role as an expert the court held that:

As an expert witness, D.C. Mutis had an obligation to provide opinion evidence that is fair, objective, independent and non-partisan: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182 (S.C.C.), at paras. 26-32. It would appear that she is either unaware of this duty or chose to ignore it. [at para. 38]

One of the reasons for this finding is rooted in how the expert framed her conclusions with respect to the speed of the victim’s motorcycle. The expert failed to provide a margin of error — something the officer had been criticized for the in the past.

In my view, for D.C. Mutis to state in the “Conclusions” part of her report that the motorcycle was travelling “at approximately 74 km/hr” when in fact 74 was at the very low end of a 15 km/hr range was misleading. This is not the first time that D.C. Mutis has been criticized for failing to specify a margin of error: R. v. Fekre, 2017 ONSC 7799 (Ont. S.C.J.), at para. 55. [at para. 41]

Another aspect of the expert’s evidence that the court struggled with also related to the speed of the victim’s motorcycle and in particular what if any role the debris field played in the determination of the speed the motorcycle was travelling at.

The Court found that the expert was unable to account for what her testimony at the preliminary inquiry differed from her evidence at trial with respect to the role of the debris field in her determination of speed.

Based on these concerns the court held that it could not rely on the evidence of the expert. The Court ruled that:

[t]he Ontario Court of Appeal has held that there is a “heightened concern” with respect to the impartiality of police expert witnesses: R. v. McManus, 2017 ONCA 188, 353 C.C.C. (3d) 493 (Ont. C.A.), at para. 67. This case illustrates why that heightened concern exists. While I do not fault defence counsel for consenting to the admission of the expert evidence, this case illustrates the importance of a court’s gatekeeper function of ensuring that only sufficiently reliable expert evidence is admitted: R. v. Abbey, 2017 ONCA 640, 140 O.R. (3d) 40 (Ont. C.A.), at paras. 49-55, 112-116.

Based on the foregoing, I have unfortunately concluded that D.C. Mutis is not a reliable or impartial expert and I am unable to rely on her expert opinion. As noted earlier, Crown counsel did not suggest otherwise. I am able to rely on the non-expert aspects of her evidence, such as evidence about measurements. [at paras. 43-44]

Rasaratnam’s driving was found to be objectively dangerous but the court concluded that it did not constitute a marked departure from the standard of care. He was acquitted. [at para. 5]

R. v. Soni, 2016 CarswellAlta 1432 (Alta. C.A.)

Crown Expert: Detective Theuser

Soni was driving a Mercedes which was driving parallel to a Lexus being driven by a co-accused. A collision occurred which caused the death of the driver of an Oldsmobile. Soni was convicted after trial of dangerous operation of a motor vehicle causing death.

The collision was described in the following manner by the Court of Appeal:

[t]he Mercedes and the Lexus were both proceeding at a high rate of speed northbound on 66 Street, which is a multi-lane arterial road with the northbound and southbound lanes separated by a concrete divider. They were approaching the intersection with 31 Avenue, which is controlled by traffic lights. The light was green. The Oldsmobile was proceeding south on 66 Street, and was intending to turn east onto 31 Avenue, so that its path would cross in front of the northbound Mercedes and Lexus. There was a high impact collision at the intersection, with the Oldsmobile likely being hit first by the Lexus, and then by the Mercedes. The force was such that the Oldsmobile was spun around 180 and driven northwards up 66 Street for about 134 metres. [at para. 3]

At trial the Crown tendered the evidence of Detective Theuser, a collision reconstructionist with the Edmonton Police Service. Following a lengthy voir dire the trial judge admitted the expert evidence. Although the defence initially conceded the Detective Theuser’s qualifications counsel “attempted to exclude all consideration of the expert evidence because of the officer’s involvement in the investigation.” [at para. 10]

Soni was convicted and appealed arguing in part that the evidence of the expert should not have been tendered at trial.

The Court of Appeal concluded that:

An expert does not lose objectivity merely because he forms an opinion about the case; an expert report containing no opinion has no probative value. An expert can and should properly challenge information which he believes to be inaccurate or unreliable; if he believes that a witness is withholding information or otherwise attempting to mislead him, there is nothing wrong with him confronting the witness or otherwise attempting to verify the information. As a police officer and “person in authority”, Detective Theuser had a particular role to play when interviewing the appellant. It was not inappropriate for him to disclose his preliminary views on guilt to the appellant before the interview, if only to make it clear to the appellant what jeopardy he faced. The interview with the appellant occurred 7 months after the accident, and there is no indication that Detective Theuser prematurely jumped to his conclusion on the appellant’s culpability, or that his mind was closed to any alternatives as the investigation progressed.

At trial the appellant’s position was that the expert’s report was admissible, and that any concerns about objectivity went only to weight. The appellant should not be allowed to retract that admission on appeal: R. v. T. (S.G.), 2010 SCC 20 (S.C.C.) at para. 36, [2010] 1 S.C.R. 688 (S.C.C.); R. v. Webster at paras. 33-6. The record discloses that the trial judge was alive to the need to weigh the expert’s evidence in light of his objectivity, even without the benefit of the reasoning in White Burgess. She indicated that she was giving only “diminished” weight to Detective Theuser’s evidence, a finding that should be taken at face value: R. v. O’Brien, 2011 SCC 29 (S.C.C.) at paras. 17-8, [2011] 2 S.C.R. 485 (S.C.C.). The trial judge may, in fact, have over-emphasized the perceived problems with the expert’s evidence. There is nothing on this record to suggest that the expert’s objectivity was so lacking that his evidence should have been ruled completely inadmissible. There was ample other evidence supporting the conviction, and the appellant has not demonstrated any error that would have affected the outcome, or any miscarriage of justice. This ground of appeal must be dismissed. [at paras. 22-23]

R. v. Downs, 2018 CarswellOnt 11210 (Ont. S.C.J.)

Crown Expert: Constable Timothy Boniface

Downs was charged with criminal negligence causing bodily harm arising out of a street race. The Crown applied to introduce the expert opinion evidence of Constable Boniface in the following areas of technical knowledge:

• One, scene evidence identification and interpretation;

• two, drag factor determination;

• three, vehicle dynamics;

• four, speed determination;

• five, forensic mapping and scene diagramming;

• six, time distance analysis;

• seven, sequence of events vehicle placement pre/post collision; and,

• eight, retrieval and interpretation of vehicle event data recorder analysis. [at para. 7]

Having concluded that the officer’s evidence met the four Mohan criteria, the Court admitted the proposed evidence and concluded that Constable:

Boniface can talk about his interpretation of the CDR data. He can talk about his interpretation of markings on the roadway. He can talk about the damage to the vehicles, and he can talk about the speed analysis. And all of those things, in my view, are quite probative to whether Mr. Downs was criminally negligent by street racing, and/or whether he drove dangerously by street racing. [at para. 25]

The Court noted that the concerns about prejudice raised by the defence could be adequately dealt with in a proper instruction to the jury:

On prejudicial effect, there is always some degree of prejudicial effect to the accused when the Crown calls an expert witness. But, again, in my view, this court can take some measures to reduce, as much as possible, any degree of prejudicial effect through proper limiting instructions to the jury, which subject to hearing submissions from counsel at the time, I think ought to be given twice, both when Boniface testifies and as part of the concluding package of instructions. [at para. 26]

R. v. Subramaniam, 2017 CarswellAlta 16 (Alta. Q.B.)

Crown Expert: Kenneth Anthony McLeod

Crown Expert: Mark Podesky

Defence Expert: James Graham

Subramaniam was charged with dangerous operation of a motor vehicle causing death and bodily harm. At the time of the collision Subramaniam was an employee with a transportation company tasked with transporting workers to and from remote worksites by bus.

At trial the Crown sought to tender the expert opinion evidence of Kenneth McLeod in the field of mechanical inspections.

Mr. McLeod performed a vehicle inspection on the bus following the collision and opined that it was in good working condition. [at para. 8]

Corporal Mark Podesky was qualified as an expert on collision reconstruction. Corporal Podesky attended the scene of the collision and the impound lot where the vehicles were held following the collision. Corporal Podesky concluded that:

the bus was traveling northbound in the outside lane with its passenger side tires in the ditch and the driver side tires on the roadway. He could not determine where the bus left the roadway, as there were many tire tracks from multiple vehicles. The bus re-entered the roadway oriented in a northwest direction. It continued northwest diagonally across the center line into the southbound lanes. Then the Accused made a steering correction to the right at which point the bus started to yaw, side-slipping and rotating clockwise, to the center line where impact occurred with the Jeep which was travelling southbound. The Jeep, which had braked and started to steer to the left in an avoidance technique, partially under rode the bus on impact. Both vehicles then travelled together into the side ditch. Corporal Podesky concluded that the cause of the collision was failure of the bus driver to keep the bus properly orientated in its lane of travel. [at para. 57]

James Graham was qualified as a defence expert and qualified to offer opinion evidence on collision reconstruction. He too attended the scene and the impound lot where the vehicles were held.

Mr. Graham concluded that his measurements were the same as Corporal Podesky’s and agreed with the sequence of events set out by the officer.

The main point of disagreement between the evidence of the two experts was with respect to the effect of the drop off at the road edge.

The Court concluded that the driving at the time of the collision was not objectively dangerous. Particularly in light of the:

experts’ evidence as to the very narrow width of the shoulder, the state of disrepair of the shoulder in terms of the sharp drop-off at the edge of the shoulder, and the lack of warning signs in advance, the reasonable driver could not be expected to appreciate the risk of moving to the shoulder at or near the posted speed limit to make room for a passing vehicle which was cutting the driver off. [at para. 127]

R. v. Conley, 2018 CarswellOnt 13198 (Ont. C.J.)

Defence Expert: Mark Paquette

Mr. Conley drove a large truck in downtown Ottawa. He was charged with negligent operation of a motor vehicle when his truck struck and killed Nursat Jahan, a young woman riding her bicycle.

Conley sought to have Mark Paquette qualified as an expert witness in the field of forensic collision reconstruction. Mr. Paquette’s proposed evidence was almost entirely focused on a “blind spot assessment.”

After reviewing the police reports Mr. Paquette attended the relevant intersection and mapped it using a 3D scanner.

The court provided the following summary of what the blind spot assessment entailed

To do the blind spot assessment, Mr. Paquette sat in the same driver’s seat and adjusted the seat so that his eye level was the same as that of Mr. Conley when he was in that seat. A colleague of Mr. Paquette then moved around outside of the truck carrying a measuring rod that had been marked off with Ms. Jahan’s height. As the colleague moved the rod, Mr. Conley would call out when the marking became visible and the colleague would then spray paint a dot on the ground to indicate the sightlines. The dots were then joined to create the outline of the blind spot.

The next step was the use of a scanner to measure the truck and its associated blind spot as outlined with the spray paint. Mr. Paquette was then able to generate a figure showing the truck with a graphic illustration of the shape of the blind spot. He was then able to overlay a graphic representation of the truck and blind spot over a scale diagram of the intersection of Laurier Ave. and Lyon St. that was based on measurements taken by the police. A further step was to overlay on top of this last scale diagram a police generated graphic representation of the blind spot; the police produced their representation during the course of their investigation and independently of Mr. Paquette. [at paras. 8-9]

The Court concluded that expert evidence was not necessary. The court held that it did not require any specialized knowledge in order to understand a blind spot. The court did however conclude that the:

computer generated graphic representation of the truck and the blind spot overlaid on a scale diagram of the intersection clearly required specialized knowledge outside the ken of the trier of fact. I note here that it would have been exceedingly difficult and perhaps impossible for me to have mentally visualized the parameters of the blind spot. The graphic representation is extremely important. [at para. 10]

Although Mr. Paquette was not qualified as an expert in the field of forensic collision reconstruction given the importance of the computer graphic the court qualified him as an “expert in the narrower field of preparing computer-generated graphic representations of accident reconstructions.” [at para. 11]

6:170 Scene Reconstruction

R. v. Millard, 2018 CarswellOnt 11865 (Ont. S.C.J.)

Crown Expert: Detective Constable Grant Sutherland

Millard was charged with the first degree murder of his father Wayne Millard. Wayne died as a result of a single gunshot wound to his left eye. His death was initially ruled a suicide. Further investigation led to the charge against Millard.

At trial the Crown sought to have Detective Constable Grant Sutherland qualified as an expert in shooting scene reconstruction. The defence opposed the admissibility of this evidence.

The officer’s expertise was summarized by the court as follows:

D.C. Sutherland is a member of the Toronto Police Service (the “TPS”). D.C. Sutherland worked as a Scenes of Crime officer from 2008 to 2013. He worked in a supervisory capacity in the Forensic Identification Services from 2013 to 2016. From 2016 to present he has worked with the Organized Crime Integrated Guns and Gangs Task Force Firearms Investigation and Analysis Unit. D.C. Sutherland has a Bachelor of Arts Degree in Law and Justice from Laurentian University. He has taken two five-day courses in shooting scene reconstruction. These courses were taught by a recognized expert in the area. The second time that he attended the course he was also a host and assisted in the presentation of the course. The broad area of shooting scene reconstruction encompasses the analysis of gunshot residue impressions. D.C. Sutherland has lectured and provided training in the area of shooting scene reconstruction.

D.C. Sutherland has taken several firearms courses and keeps up-to-date with relevant research and literature with respect to firearms. He has experience in firing revolvers and other firearms. D.C. Sutherland’s Curriculum Vitae was filed as an exhibit and outlines in more detail his training and experience.

D.C. Sutherland has been qualified to offer expert opinion evidence in other cases in the areas of trajectory analysis, functionality of firearms and shooting scene reconstruction.

The Court found that D.C. Sutherland’s report and evidence raised some concerns with respect to his ability to “give impartial independent unbiased evidence”. Notwithstanding these concerns the court held that the officer would be permitted to give expert opinion evidence with respect to “the general operation of this firearm and the general tendency of revolvers to disperse GSR from the muzzle and cylinder gap has little room for subjectivity.” [at para. 71]

The remainder of the proposed evidence from D.C. Sutherland was excluded. The Court ruled as follows:

I find that D.C. Sutherland’s evidence with respect to the operation of the firearm and its tendency to expel GSR from the muzzle and cylinder gap is admissible. The balance of his evidence is not admissible. I would have excluded his opinion that he believed that Wayne Millard did not fire the gun on the basis of a lack of necessity. I would have excluded the balance of his evidence on the basis that it did not meet the threshold requirement of a properly qualified expert because D.C. Sutherland demonstrated an unwillingness or inability to give impartial, independent and unbiased evidence. Even if this evidence had met the threshold requirement, I would have excluded it at the second stage because its limited probative value as a result of the bias was outweighed by the potential prejudicial effect. [at para. 80]

6:180 Electrician

R. v. Delege, 2016 CarswellBC 2973 (B.C. S.C.)

Crown Expert: James Albert Mummery

Delege plead guilty to possession of marihuana for the purpose of trafficking and fraudulent consumption of electricity.

As part of the facts tendered at the sentencing hearing the crown filed the expert report from Mr. Mummery. Mr. Mummery is a Red Seal journey person electrician and it was in that capacity that his expert report was received by the court on consent.

Mr. Mummery’s evidence, relevant to the fraudulent consumption of electricity was summarized as follows:

It shows cables that have been installed laying on floors, running down walls without support, hanging from rafters, entering into panels without proper grommets, and generally installed in a very poor workmanship manner. These types of installations lead to electrocution and fire hazards from strain on connections improperly bonded to ground and damage to cables from sharp edges. [at para. 16]

6:190 Explosives

R. v. Wood, 2014 CarswellMan 128 (Man. Q.B.)

Crown Expert: unnamed

Wood was charged in a 14 count indictment with drug and weapons offices. All of the charges resulted from items that were in his home and were discovered pursuant to a police search. One of the charges related to a singled stick of explosive material found in the kitchen.

This item was described by the Court as follows:

yellow stick, 16“ long by 1 1/2” thick, which was inside a sock. The top 4“ of the stick was protruding from the sock. The stick contained a toothpaste-like substance that was analyzed and shown to be an emulsion explosive. [at para. 10]

The Crown tended the evidence of an expert on explosives who opined that:

that the stick would require a detonator to explode and no detonator was found. He also testified that the explosive was in very poor condition. It had hardened and there were no markings on it indicating that it was an explosive. [at para. 10]

Over the course of the trial evidence was presented which showed that Wood did not have exclusive access or use of the residence. An individual named Curtis had unrestricted access to the home.

With respect to the explosive the Court held that:

[t]he situation with respect to the explosive is not quite as clear because it was found in the kitchen, a room which Mr. Wood likely would have used regularly. Nevertheless, I believe him when he said that he did not know of its existence. In his interview with police, he seemed surprised by the fact that an explosive was found. As I said, I found him to be candid and credible in that interview. The explosive was in a cupboard. When the police found it, the cupboard door was closed. The explosive was inside a sock with only part of it showing, so Mr. Wood may not have seen it. But even if he had, there were no markings on it. Crown counsel acknowledged that she would not have been able to identify the object if she had seen it. There is no evidence that Mr. Wood had any experience with explosives. Moreover, the explosive could not have been used without a detonator and no detonator was found in the house. So there was nothing in the house from which Mr. Wood might have inferred what the object was. [at para. 37]

Wood was acquitted of the charges relating to the guns and explosives.

6:200 Physics

R. v. Johnson, 2019 CarswellOnt 2546 (Ont. C.A.)

Defence Expert: Dr. Jason Harlow

Johnson was found guilty after trial of second degree murder. The shooting took place outside Whispers, an after hours bar. Two men were shot, one died. The identity of the shooter was the issue at trial. The Crown led evidence that Johnson was the shooter. The defence admitted that the person the bouncer apprehended and later released was the shooter. The evidence for the crown included the testimony of Det. Idsinga:

who over hundreds of hours, reviewed the surveillance video from inside and outside Whidpers and compared a list of identifiers consisting of clothing and bodily appearance that matched the appellant. The identifiers included a long chain and a medallion around the neck of the shooter. On arrest, police seized a long chain and medallion from the appellant who admittedly was at Whispers that evening. [at para. 28]

On this video surveillance a white object appears to be visible on the shooter’s neck. Crown and defence had different theories on the nature of the white object:

The Crown contended that the object was a medallion attached to a long chain around the shooter’s neck, a medallion and chain just like those seized from the appellant on arrest. The defence argued otherwise: the white object was a reflection from the collar of the white t-shirt underneath the outer shirt. It was not a medallion because, despite the struggle with Grant, the object did not appear to move between frames of the video as a medallion like that seized from the appellant would have done. [at para. 30]

At trial defence sought to qualify Dr. Jason Harlow as expert in physics. Dr. Harlow testified in a voir dire and the Court of Appeal summarized his evidence as follows:

Dr. Harlow explained that a large area of his research involved the study of light, including observations on the movement of objects on camera, particularly of objects that may reflect light. He analyzed several video frames to determine whether a white area below the shooter’s head could be light reflected from a medallion on a long chain. Dr. Harlow concluded that although it was possible that the white spot apparent in the video was the chain and medallion, it was unlikely to be so.

The analysis Dr. Harlow conducted was grounded entirely on his visual observation that the white spot did not move between two frames of the video 0.133 seconds apart. His opinion was the product of his calculations regarding the speed at which the medallion would travel and the distance it would cover given certain assumptions. In his view, if the white spot were the chain and medallion, then it would have been in motion, as evidenced by its presence around the wearer’s neck, rather than near his navel where it would normally be.

Dr. Harlow calculated that if the medallion were jerked upwards as he assumed, then in the 0.133 second space between frames it would have moved 29 centimetres. On the other hand, he acknowledged that if the medallion were moving in any number of other directions, the speed calculations would differ significantly. Dr. Harlow appears to have been unaware of the altercation between the shooter and Grant immediately before the shooting and the possibility that the chain and medallion could have been in any number of different positions as a result of that interaction. [at paras. 32-34]

The trial judge excluded the proposed evidence. The trial judge concluded that at the threshold stage the evidence was not necessary as the jurors could just watch the video themselves and draw their own conclusions. This was particularly so as Dr. Harlow was transposing his calculations without “any knowledge about the positioning and operation of the cameras; the distance individuals were away from the cameras; potential distorting effects; the two-dimensional nature of the images; and the lack of clarity in the videos. [at para. 36]

At the gatekeeper stage of the expert evidence analysis, the trial judge considered the proposed evidence was of limited probative value on an issue that the jury could correctly decide without Dr. Harlow’s opinion. Further, the prejudicial effect of the evidence was significant in that it risked distracting the jury from its core task — determining whether the appellant was the shooter. [at para. 38]

The Court of Appeal concluded that the trial judge was correct in refusing to admit the proposed opinion evidence of Dr. Harlow. [at para. 62]

The Court explained:

[t]he videos were available to the jury for their review. No special learning, skill or expertise was required to determine whether the spot moved or remained stationary between frames. Items of jewelry such as that seen here are commonplace in today’s society. Likewise, their movement with the wearer’s activities. None of this was beyond the everyday experience of the members of a jury. Nor was it something about which the jury was unlikely to get right absent expert opinion from a physicist.

In addition, as the trial judge pointed out, at least some aspects of Dr. Harlow’s opinion appeared to extend beyond his expertise as a physicist. For example, he took measurements of the appellant’s face, then attempted to transpose them to scenes in the video in order to calculate various distances. It is at best uncertain whether this lies within the expertise of a physicist. It is all the more so when the conclusions are drawn without any knowledge of the operation of the cameras, the angles at which they were positioned, the distance of the objects from the cameras, the two dimensional nature of the images and so on.

The proposed evidence also fails at the gatekeeping stage of the analysis. Dressed up in scientific language and awash in a sea of mathematical formulae and calculations, its potential effect on a trier of fact far outstripped its probative value. It also tended to divert the jury’s attention from their obligation to decide the controverted issue of identification on a single piece of evidence, about which the witness acknowledged uncertainty, rather than as the jury’s obligation — the whole of the evidence. The witness had no way of knowing whether the medallion was stationary during the 0.133 second interval, or whether it had moved up and back down in that time. [at paras. 66-68]

Although, this ground of appeal was dismissed a new trial was ordered with respect to the trial judge’s failure to instruct the jury on provocation.

1 Of note on this point is that before allowing the Crown to play the video in re-examination she allowed the defence to re-open their cross-examination and have the opportunity to play the video to the expert. [at para. 16]