Court Information

Court of Appeal for Ontario

Date: 2018-03-02

Docket: C56497

Panel: Feldman, Paciocco and Fairburn JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Norman Campbell Appellant

Counsel

Ariel Herscovitch, for the appellant

Andrew Cappell, for the respondent

Hearing and Appeal Information

Heard: February 7, 2018

On appeal from: The conviction entered on June 19, 2012, by Justice Nancy L. Backhouse of the Superior Court of Justice, sitting without a jury.

Decision

Fairburn J.A.:

OVERVIEW

[1] During the execution of a search warrant at a boarding house, the police located a shotgun secreted in the ceiling of the basement apartment where the appellant lived. They found a plastic bag containing shotgun shells above the kitchen ceiling. A partial palm print was found on the plastic bag.

[2] The Crown called expert evidence suggesting that the palm print on the bag came from the same source as the appellant's known print. Not entirely satisfied with the first expert's testimony, the Crown brought an application to recall a witness who had previously testified in the trial, but on another topic. This witness also had experience in friction ridge analysis and, in fact, had been the person who had provided the expert opinion evidence on this issue at the preliminary inquiry. Over the objections of the defence, the Crown was permitted to recall the witness. He was declared an expert and, like the first expert, provided the opinion that the print on the bag was from the same source as the appellant's known print.

[3] The appellant was convicted of ten counts relating to the possession of a prohibited firearm and ammunition. He maintains that the trial judge erred by:

a. allowing the Crown to recall the witness; and

b. misapprehending the expert opinion evidence, giving rise to an unreasonable verdict and miscarriage of justice.

[4] For the reasons that follow, I would dismiss the appeal.

GENERAL FACTS

[5] The case against the appellant arose from seizures made during the execution of a search warrant in July 2006. Robert Rigole was the forensic identification officer at the search scene. By the time of trial, Mr. Rigole had left the police service. Mr. Rigole testified about a number of items that were seized from the basement apartment where the appellant was said to live, including:

(a) an unloaded 20 ½ inch sawed-off shotgun in the ceiling tiles above the bedroom;

(b) a live 12 gauge shotgun shell (compatible with the shotgun found in the ceiling) inside a canvas bag behind a dresser, next to which was a bag with court documents bearing the appellant's name; and

(c) a 23 inch machete under the mattress of the bed.

[6] Inside the basement washroom was a safe containing $1,900. In the ceiling tiles over the basement kitchen was a white plastic bag, containing a total of eleven shotgun shells. The palm print forming the subject of this appeal was found on this bag.

[7] The basement apartment was a self-contained unit with a locked door leading down to it. There was a significant amount of evidence connecting the appellant to the basement apartment. In the context of an unrelated investigation in mid-July 2006, the appellant told the police that he had been living in the apartment for about a month. The rental agreement stipulated that he was the only one who could live there. The landlord testified that the dresser (behind which the bag containing a shotgun shell was found), was not present in the basement unit when the previous tenant moved out.

EXPERT EVIDENCE

[8] Mr. Rigole did the original comparison work between the partial palm print found on the plastic bag and the appellant's known print. He authored a friction ridge analysis report on December 7, 2007. He also testified as an expert in friction ridge analysis at the preliminary inquiry. He was of the opinion that the print on the bag and the appellant's known palm print were from the same source.

[9] For reasons unrelated to this appeal, a long time passed between the preliminary inquiry and trial. During this time, Mr. Rigole's friction ridge analysis report went missing. As Mr. Rigole had left the Toronto Police Service years before the trial, a new officer with expertise in friction ridge analysis was assigned to conduct a fresh analysis and author a new report.

[10] Although the new officer's findings varied in some respects from Mr. Rigole's, she came to the same ultimate conclusion that the impression on the bag originated from the same source as the appellant's known palm print. She also testified about what she believed to be distortions in the palm print on the bag caused by the fact that the substrate material was "wrinkled and creased". She explained that the distortions also could have been created by the manner in which the bag had been held, including the amount of pressure applied to the surface of the bag.

[11] The officer agreed under cross-examination that what she believed to be distortions caused by how the print was left on the plastic bag surface, "could very well" be interpreted by another analyst as an actual dissimilarity between the print on the bag and the appellant's known print. In re-examination, though, she remained firm in her opinion that the prints came from the same source.

[12] Not surprisingly, the Crown was not entirely satisfied with the officer's testimony, evidence that could be described as confusing at best. Accordingly, he sought to recall Mr. Rigole, whose friction ridge analysis report from 2007 had by then been located. Over the objection of the defence, Mr. Rigole was permitted to take the stand again so that he could give opinion evidence about the source of the palm print. His testimony was consistent with his original report and evidence at the preliminary inquiry. His friction ridge analysis evidence will be reviewed later in these reasons.

RECALLING THE WITNESS

[13] In permitting the Crown to recall Mr. Rigole, the trial judge focussed on the fact that: (a) the Crown had not yet closed its case; (b) Mr. Rigole's report had been disclosed years earlier; and (c) the defence suffered no prejudice.

[14] The appellant maintains that the trial judge erred in allowing the Crown to recall Mr. Rigole. He argues that the defence had "put all his cards on the table" when he cross-examined the first expert and, as a result, it was unfair to permit the Crown to call another witness to testify on the same topic. In essence, the appellant maintains that the Crown should not have been permitted to undo the damage done to its case by the first officer who gave expert friction ridge analysis evidence.

[15] Before the Crown has closed its case, a trial judge has a broad discretion to permit the recall of a witness, a discretion that must be exercised judicially and in the interests of justice. This discretion narrows as the trial proceeds through its various stages: R. v. G.(S.G.), [1997] 2 S.C.R. 716, at paras. 29-30.

[16] Different factors may be taken into account when considering whether to permit a witness to be recalled. Of course, as with all witnesses, the evidence to be called must be material to a live issue. In exercising her discretion, the trial judge will also have regard to the need for an orderly trial and any prejudice that may flow to the accused as a result of recalling the witness. Before the Crown closes its case, prejudice can typically be addressed through "an adjournment, cross-examination of the re-called witness and other Crown witnesses and/or a review by the trial judge of the record in order to determine whether certain portions should be struck": R. v. P.(M.B.), [1994] 1 S.C.R. 555, at para. 22.

[17] The request to recall the witness in this case was made at the earliest stage possible, before the Crown had closed its case, when the trial judge enjoyed "considerable latitude in exercising…her discretion": P.(M.B.), at para. 22. The trial judge exercised her discretion with regard to the relevant factors, including her assessment that the appellant would not be prejudiced by Mr. Rigole's additional testimony. I see no error in the trial judge's assessment about the absence of prejudice.

[18] Mr. Rigole's expert report and curriculum vitae was disclosed over four years before trial. Expert witness notice had been given at that time. The defence had already had an opportunity to cross-examine him on his expert evidence at the preliminary inquiry. There is no suggestion that his evidence varied from what he testified to previously. In addition, Mr. Rigole held the same ultimate opinion as the first expert who testified at trial. All of these factors point away from prejudice.

[19] Moreover, prejudice should not be measured by the incriminating value of evidence, but by trial fairness. Just because evidence might operate unfortunately for an accused, does not mean that it operates unfairly. It is important not to conflate these ideas.

[20] There was nothing about Mr. Rigole's expert evidence that compromised the appellant's entitlement to a fair trial or undermined his right to make full answer and defence. The trial judge gave sound reasons for allowing the Crown to recall Mr. Rigole. She exercised her discretion judicially and with regard to the appropriate factors. We should defer to her exercise of discretion in this regard. This ground of appeal must fail.

MISAPPREHENSION OF EVIDENCE

[21] After reviewing Mr. Rigole's evidence, the trial judge gave reasons for accepting his expert opinion. The appellant maintains that the trial judge erred in doing so.

[22] In this court, the appellant takes no issue with the fact that Mr. Rigole is an expert in friction ridge analysis. His argument here comes down to what he describes as the "circular logic" embedded in Mr. Rigole's evidence, circularity that the appellant maintains required the trial judge to reject the opinion offered.

[23] The appellant seizes on the fact that Mr. Rigole pointed to six areas of similarity between the known and found prints to form the opinion that they came from the same source. Yet, as the appellant emphasizes, Mr. Rigole also acknowledged that there were visual differences in each of the areas of similarity. The expert testified that the differences did not arise from dissimilarities between the prints, but from distortions in the print left on the bag. The appellant argues that it is circular for the expert to conclude that the differences must be distortions rather than dissimilarities only because, as the expert testified, the similarities show that the print must have come from the appellant.

[24] Given the admitted differences between the prints, the appellant maintains that Mr. Rigole's expert opinion amounted to nothing more than a bald assertion that the prints emanated from the same source. In these circumstances, the appellant argues that the trial judge was duty bound to reject the expert opinion proffered and her failure to do so reveals a clear misapprehension of evidence giving rise to an unreasonable verdict and miscarriage of justice. I disagree.

[25] A misapprehension of evidence can involve a failure to take into account an item of evidence that is relevant to a material issue, a mistake about the substance of evidence, or a failure to give proper effect to evidence: R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at para. 83. Leaving aside errors of law, a misapprehension of evidence can give rise to a miscarriage of justice in the form of an unreasonable verdict under s. 686(1)(a)(i) of the Criminal Code or a miscarriage of justice caught under s. 686(1)(a)(iii) of the Criminal Code: Morrissey, at para. 87. The appellant maintains that the trial judge's acceptance of Mr. Rigole's opinion constitutes a misapprehension of evidence because, if she had given his evidence proper effect, she would have rejected it. He argues that the trial judge's acceptance of Mr. Rigole's opinion demonstrates that she misunderstood his evidence.

[26] This argument can only succeed if the trial judge was duty bound to reject Mr. Rigole's opinion. I do not agree that the trial judge was required to do so. A brief review of the expert's evidence demonstrates why I find it was open to the trial judge to use Mr. Rigole's opinion exactly as she did – as another piece of circumstantial evidence connecting the appellant to the shotgun shells.

[27] The impugned evidence spans over 130 pages of transcript. Mr. Rigole testified about his training and experience in friction ridge analysis. As his expertise on appeal is accepted, there is no need to review his credentials.

[28] Although Mr. Rigole analysed the entire print, for purposes of demonstrating the match, he only mapped out six of the corresponding points on the photos of the found and known prints. The trial judge was provided with the photos to assist her in following the evidence. It is clear from a review of the transcript that as each point of similarity and difference was examined upon, the trial judge was able to follow the expert's explanations by reference to the photos she had in front of her.

[29] The nub of the complaint in this case comes down to what Mr. Rigole acknowledged were differences between the found and known prints. Mr. Rigole explained that these differences arose from what he believed were distortions in the found print, likely caused by the "crinkly" nature of the plastic bag. Under extensive cross-examination, Mr. Rigole testified that it is not unusual to find distortions in prints. Whether taken at the time of booking or found at a crime scene, some degree of distortion will be present. This can be explained by different things, including the surface on which the print is found, the amount of pressure used to create the print, or the skin sliding on the surface. Although he agreed that each of the areas of similarity between the known and found prints contained "distortive qualities", he was confident that they were not distorted so much that he could not use them for purposes of comparison.

[30] Mr. Rigole agreed under cross-examination that if he had detected a true "dissimilarity" between the prints, then he would not have formed the opinion that they were from the same source. He rejected the proposition that distorted parts of the found print represented actual dissimilarities. He explained that, as in all cases, he looked at the "entire print" from top to bottom. He located characteristics he was confident in and he compared them. In this case, cumulatively, there were enough points of similarity to allow him to render the opinion that the print on the bag matched the known print. Having regard to his experience and training, and the sheer number of similarities found, Mr. Rigole rendered the opinion that the visible differences were nothing more than the result of distortions caused by what he believed to be the substrate surface on which the print had been left. In other words, it was the totality of the points of similarity that allowed him to form the opinion that any apparent dissimilarities were the product of distortion.

[31] The trial judge was clearly alive to the concerns expressed on appeal. She specifically noted that Mr. Rigole acknowledged that "there were visible differences with respect to all of his points on the chart due to distortion". Having heard the expert's evidence, and having had the advantage of following the evidence with the use of the photos provided, the trial judge gave reasons for accepting Mr. Rigole's opinion, including:

(a) his lengthy experience as a fingerprint examiner;

(b) his ability to explain the procedure he followed and its underlying theory;

(c) his explanation around the level of detail found in the print;

(d) the fact that the other expert also concluded that the known and found prints were from the same source;

(e) the fact that a vigorous cross-examination did not undermine his opinion; and

(f) the fact that he was "objective and fair".

[32] Mr. Rigole did not take a "just trust me" approach to his opinion evidence. He provided an explanation as to how he arrived at his opinion. He was extensively cross-examined. Read as a whole, his evidence does not demonstrate circular logic. The trial judge was not overwhelmed by the "mystic infallibility" of expert opinion evidence. It was open to her to accept his opinion and her decision to do so does not constitute a misapprehension of evidence.

[33] This ground of appeal also fails.

CONCLUSION

[34] I would dismiss the appeal.

Released: March 2, 2018

"Fairburn J.A." "I agree. K. Feldman J.A." "I agree. David M. Paciocco J.A."