ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-50000-774
DATE: 20121214
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – FRANK OPOKU-MENSAH Applicant
Tanya Kranjc, for the Respondent/Crown
Richard Posner, for the Applicant
HEARD: July 9, 10, 11, 12, 13, 16, 17, 18, 19, 20, 2012, September 5, 2012, October 25, 2012 and November 29, 2012
KELLY J.
Ruling # 4:
Reasons for Excluding the Evidence of the Expert
[ 1 ] On March 14, 2011 the Applicant, Mr. Frank Opoku-Mensah, was charged with 16 offences relating to two firearms and ammunition. The proceedings commenced with the Applicant seeking an order that his s. 8 right to be secure against unreasonable search and seizure had been violated for a number of reasons.
[ 2 ] One of the issues raised during the s. 8 voir dire was whether D.C. MacNeil had falsely mislead the issuing justice. Counsel for the Applicant suggested that he fabricated a note regarding a conversation that he had with a Confidential Informant and that he knowingly included this false information in the Information to Obtain.
[ 3 ] After much debate, the note that D.C. MacNeil says is a contemporaneous note of his discussion with the CI was delivered to Mr. Luc Brazeau of the Canada Border Services Agency. Mr. Brazeau is a Senior Forensic Document Chemist. In this capacity, Mr. Brazeau does ink dating using the solvent loss ratio method.
[ 4 ] Mr. Brazeau provided a report regarding D.C. MacNeil’s note on September 14, 2012. The conclusion regarding the note in question was as follows:
The analysis of the ink using the solvent loss ratio method disclosed the presence of solvent at levels that is consistent with a document this age. It was not possible to determine whether or not the ink analysed was applied on the date purported on this document.
[ 5 ] On October 25, 2012, Counsel sought an admission that the findings of Mr. Brazeau were inconclusive. Crown Counsel would not agree. Accordingly, Mr. Brazeau was called as a witness on November 29, 2012. Crown Counsel applied to have Mr. Brazeau qualified as an expert and to give evidence on “ink dating using a solvent loss ratio method”.
[ 6 ] Counsel for the Applicant opposed the admission of Mr. Brazeau’s evidence because it does not meet the test for admissibility. However, even if admissible, the evidence is of no probative value because the findings of Mr. Brazeau are inconclusive. At the conclusion of oral argument I agreed and excluded the evidence. What follows are my reasons.
Analysis
[ 7 ] The purpose of Mr. Brazeau’s examination of the note was to provide ink dating using the “solvent loss ratio method”. Because this scientific evidence is novel, Counsel submitted that the principles in R. v. J. (J.L.) apply. Accordingly, the Court may consider several factors that may assist in an evaluation of the soundness of novel scientific evidence as follows:
i. Whether the theory or technique can be and has been tested;
ii. Whether the theory or technique has been subjected to peer review and publication;
iii. The known or potential rate of error, or the existence of standards; and
iv. Whether the theory or technique has been generally accepted.
[ 8 ] I find that the qualifications and proposed evidence of Mr. Brazeau fail to meet all four of the abovementioned factors.
i. Whether the theory or technique can and has been tested.
[ 9 ] It is unclear from the evidence of Mr. Brazeau whether the theory or technique can and has been tested. He testified that the solvent loss ratio method is used by the laboratory in Canda. Other laboratories around the world “like” the “desorption” method which employs different techniques for ink dating.
[ 10 ] When asked specifically if the solvent loss ratio method has been tested by other organizations outside of the Canada Border Services Agency, he testified that it was “part” of the last European Development Expert Working Group Conference. Further, Mr. Brazeau testified, there is a student doing her Ph. D. at Lausanne University who is “looking into that”. Presumably Mr. Brazeau means the solvent loss ratio method for ink dating..
[ 11 ] Based upon Mr. Brazeau’s evidence, it is unclear whether the theory or technique can be and has been tested. It appears that such a theory or technique is currently being tested.
ii. Whether the theory or technique has been subjected to peer review and publication.
[ 12 ] The theory or technique of the solvent loss ratio method used by Mr. Brazeau has not been subjected to peer review. Mr. Brazeau authored one paper in 2002 with Mr. Marc Gaudreau. It is a paper entitled “Ink Dating Using a Solvent Loss Ratio Method”. It was presented at the 60 th annual conference of the American Society of Questioned Document Examiners at San Diego California. This article has not been peer reviewed.
[ 13 ] Mr. Brazeau testified that in preparing his report for this case, he relied upon a graph to provide results if the ink dating in this case. This graph was produced based on research that was started in 1998 by Dr. Valeri Aginski. At that time, Mr. Brazeau’s laboratory examined 74 pens that were commonly available on the market. From those 74 pens, they chose six with various formulations. Using the pens, they placed a line on different types of paper in different storage conditions over a period of two to three years and obtained results of aging.
[ 14 ] As a result of the analysis of the six pens, the laboratory generated a graph to “see how ink aged in time on various papers and [in] various storage conditions”. This is described as the “solvent loss ratio method” for ink dating.
[ 15 ] This particular graph was used to date the ink on the note in question. Mr. Brazeau conceded that the graph has not been published nor has it been peer-reviewed. It is simply an internal document used for analysis.
iii. The known or potential rate of error, or the existence of standards.
[ 16 ] Crown Counsel specifically asked if standards are in place for ink analysis and ink dating. Mr. Brazeau replied that the method has been developed by his laboratory and it is currently working towards an ISO certification. At this point, it is simply proposed that that the method for ink dating be accredited. He does not know if such certification will be granted.
[ 17 ] Mr. Brazeau also testified that the existence of standards is not required in the accreditation process but that “it is good working practice”. He testified that the laboratory attempts to maintain a “good laboratory practice” and exchange information on the subject with other laboratories.
[ 18 ] Based on the information provided in this voir dire, it does not appear that standards for solvent loss ratio method for ink dating are in place.
iv. Whether the theory or technique has been generally accepted.
[ 19 ] Mr. Brazeau testified that his laboratory exchanges information with the United States Secret Service Forensic Document Group and others. Canada does the ink dating and the Secret Service conducts the ink analysis.
[ 20 ] When specifically asked whether the solvent loss ratio method is generally accepted in the forensic document dating community, he simply said that other organizations such as the FBI, Secret Service and Netherlands Forensic Institute are “asking for our help doing casework and they are recognizing our method”.
[ 21 ] Reports such as those provided to the United States Secret Service are peer reviewed internally. However there is no external review. So that while the reports may be “accepted” they are not peer reviewed.
[ 22 ] While I appreciate that Mr. Brazeau had completed over 380 ink dating analysis, I do not know for what purpose they have been used or even accepted. For example, Mr. Brazeau testified that he provides report to the United States Secret Service Forensic Document Group but I am not aware for what purpose, whether they have been generally accepted or whether they are simply a tool to be considered with other tools to make a determination regarding ink analysis.
[ 23 ] Lastly, it does not appear that Mr. Brazeau’s theory or technique has been generally accepted in our Courts. He testified that he has appeared in one criminal court proceeding in Quebec. That occurred in 2009. He testified as an expert in “ink dating”. The accused in that case, was self represented. The admissibility of Mr. Brazeau’s evidence does not appear to have been challenged.
Conclusion
[ 24 ] In conclusion, I refer find the observations made by Mr. Brazeau in his paper presented in 2002 to be applicable here regarding admissibility:
Document dating and in particular ink dating based on dynamic approaches, has always been the subject of intense debate in our field. This is due in part to the variety of methods being used, lack of standardization and the bewilderment that arises when one tries to understand the premise of each method, the range of application, interpretation and reporting of results.
[ 25 ] Even had I admitted the evidence, it has little evidentiary value to it because Mr. Brazeau was unable to identify the following:
a. the ink manufacturer in question;
b. whether the ink is fast drying which is a problem because inks dry at different rates;
c. whether the ink used by D.C. MacNeil is similar to any of the inks used to produce the graph;
d. how fast the ink used by D.C. MacNeil dries;
e. he has no idea how many ink formulas are in use;
f. how the note was stored or treated since being written.
[ 26 ] As Mr. Brazeau agreed, “the most scientific and objective opinion for [his] testing in this case is inconclusive”.
[ 27 ] For the abovementioned reasons, the Application for the admission of Mr. Brazeau’s expert opinion is dismissed.
Kelly J.
Released: December 14, 2012
COURT FILE NO.: 11-50000-774
DATE: 20121214
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN Respondent – and – FRANK OPOKU-MENSAH Applicant
RULING #5: Reasons for Excluding the Evidence of the Expert Kelly J.
Released: December 14, 2012
[1] 2000 SCC 51, [2000] 2 S.C.R. 600