Court File and Parties

Court of Appeal for Ontario Date: 20230505 Docket: C65384

Huscroft, Harvison Young and Thorburn JJ.A.

Between: His Majesty the King Respondent

And: Kristopher Ogden Appellant

Counsel: Saehee Park, for the appellant Luke Schwalm, for the respondent

Heard: May 1, 2023

On appeal from the conviction entered on February 10, 2017, and the sentence imposed on January 30, 2018, by Justice Michael Harpur of the Ontario Court of Justice.

Reasons for Decision

[1] The appeal was dismissed with reasons to follow. These are our reasons.

[2] The appellant appeals from convictions on robbery, break and enter, disguise with intent, theft of a motor vehicle, possession of property obtained by crime under $5,000, possession of a weapon for a dangerous purpose, and breach of probation, all arising out of a home invasion. He has abandoned his request for leave to appeal sentence.

[3] The appellant raises two issues on appeal. First, he challenges the fingerprint identification process, arguing that it was not sufficiently independent and impartial to be admitted or relied on as expert evidence. Second, he argues that the trial judge erred in dismissing his application for a stay.

The fingerprint evidence was properly admitted and relied on

[4] The central issue at trial was the identity of the three masked persons who committed the home invasion. A co-accused pled guilty and a third accomplice was never found. The evidence against the appellant included a fingerprint taken from a telephone that one of the invaders had ripped off the wall, which the police matched to an on-file print of the appellant. It was conceded at trial that if the identity of the appellant were proven, he was guilty of most of the charges at issue.

[5] The fingerprint identification process in this case may be summarized as follows:

• February 25, 2016: Sgt. Terry Cuff (“Cuff”), part of the Barrie Police Service’s Forensic Identification Unit, matched the telephone print to a print of the appellant that was on file.
• February 26, 2016: D.C. Kim Young (“Young”) performed a blind “verification” of Cuff’s identification. She compared three or four on-file prints to the telephone print and found a match with the appellant’s print. At the time, she did not know which print belonged to the appellant, nor that Cuff had previously found a match between the telephone print and the appellant’s print.
• Sgt. Glen Crooks (“Crooks”) informed Young that Cuff’s qualifications as an expert had lapsed (as Cuff had left the Forensic Identification Unit and had not completed the requisite continuing education since leaving). As a result, Crooks asked her to carry out another comparison between the telephone print and a new (July 2016) on-file print of the appellant.
• October 12, 2016: Young matched the telephone print to the appellant. Unlike her February 26, 2016 verification, she was at this time aware of both Cuff’s initial matching of an on-file print of the appellant with the telephone print and her own verification of that match.
• October 28, 2016: Crooks acted as the “verifier” and confirmed Young’s match. Crooks received no known prints other than the appellant’s to compare to the telephone print.

[6] The Crown proffered the October 12, 2016 match, as verified on October 28, 2016. Young filed a report outlining her identification and testified about it, as did Crooks concerning his verification.

[7] The appellant argues that the trial judge erred in putting weight on Cuff’s opinion and failed to address the effect of confirmation bias, which he submits either renders the fingerprint evidence inadmissible or undermines its reliability.

[8] We do not accept this argument. First, the trial judge was aware that Cuff’s expert qualifications had lapsed and did not rely on his February identification. His evidence provided context about the manner in which the identification had proceeded in October. Second, as to the concern about confirmation bias, the trial judge understood the importance of maximizing the neutrality of the person conducting the analysis and specifically considered whether the Crown was precluded from relying on the October match. The trial judge considered the testimony of the three officers, the process that occurred, and the submissions of counsel, which included many of the same arguments the appellant now advances. The trial judge was satisfied that although the matching process was not in accordance with the normal method, it did not undermine the analysis. The reliability of the identification of the appellant was bolstered by Crooks’ testimony, which identified 14 matching fingerprint details in the appellant’s print and the telephone print.

[9] Absent an error in principle, a material misapprehension of the evidence, or an unreasonable conclusion, the trial judge’s decision to admit the fingerprint evidence is entitled to deference: R. v. Mills, 2019 ONCA 940, 151 O.R. (3d) 138, at para. 47, leave to appeal refused, [2021] S.C.C.A. No. 263. We are satisfied that he did not err in any of these ways. The trial judge went on to find there was no reasonable explanation for why the appellant’s fingerprint was on the victim’s telephone that was consistent with the appellant not being involved in the home invasion, in accordance with R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000. No issue is taken with this finding.

The trial judge did not err in denying the appellant’s request for a stay

[10] Following conviction and prior to sentencing, the appellant brought an application for a stay of the charges arising out of an altercation that arose while the appellant was in a segregation cell and reached his arms out of the cell through the meal hatch. A correctional officer thought the appellant was trying to assault him and attempted to take control of the appellant’s wrist and applied a joint-locking technique. Another officer assisted and grabbed the appellant’s other hand, but the officers were unable to gain control of the appellant’s arms. A third correctional officer then came to the hatch and pepper-sprayed the appellant, who collapsed in his cell and coughed, cried, and gagged for several minutes. He received minor medical attention. The appellant alleged that correctional officers breached his s. 7 right to security of the person and his s. 12 right not to be subjected to cruel and unusual treatment or punishment, and argued that continuing the prosecution would undermine the integrity of the judicial process.

[11] The trial judge dismissed the application, concluding that, putting the appellant’s allegation at its highest, it was “dramatically outweighed” by society’s interest in having the appellant’s case proceed to sentencing. The trial judge went on to consider whether there was state misconduct that was nevertheless a relevant factor in sentencing the appellant, in accordance with R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206. He concluded that he was not satisfied that the correctional officers had used excessive force either in restraining the appellant or in using pepper spray. Having viewed the video and considered the testimony of the appellant and the correctional officers, the trial judge could not say whether the appellant was resisting the correctional officers or the correctional officers were preventing the appellant from withdrawing his arms. Nor was the trial judge satisfied that the deployment of pepper spray was unreasonable and excessive in all the circumstances, and so unauthorized by the Use of Force Manual.

[12] The appellant argues that the trial judge erred in failing to rule on the Charter breaches he alleged before ruling on a s. 24(1) remedy.

[13] This argument must be rejected. The manner in which the trial judge addressed the appellant’s application – considering whether a stay was justified under s. 24(1) without first deciding whether there were any Charter violations – is unusual, but it is not erroneous on that account. The trial judge considered the appellant’s case at its highest throughout the analysis, in effect assuming the Charter breaches alleged for purposes of his s. 24(1) analysis. He found that a stay was not justified: the trial had already occurred and the appellant was awaiting sentencing; the effect of the pepper spray was considerable but transitory discomfort; and there was no evidence of a systemic problem that had to be addressed. His decision that the conduct in question did not meet the high bar for imposing a stay is entitled to deference.

[14] Despite the order in which the trial judge addressed the issues, at the end of the day his factual findings preclude the finding of a breach of either s. 7 or s. 12, and hence a Charter remedy under s. 24. His factual findings also preclude a remedy on sentencing regardless of the Charter. Finally, although the appellant did not succeed in establishing that excessive force had been used in violation of his rights, we note that the trial judge took into account the effect of the appellant having endured pepper-spraying in crafting his sentence.

Conclusion

[15] The appeal is dismissed.

“Grant Huscroft J.A.”

“A. Harvison Young J.A.”

“Thorburn J.A.”