ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-40000008-0000
DATE: 20130219
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
LAVARE WILLIAMS and CHAEL MILLS
Respondents
Patrick Clement and Mary Misener, for the Crown
R. Roots Gadhia, for the Accused, Lavare Williams
Talman Rodocker, for the Accused, Chael Mills
HEARD: January 11, 2013
APPLICATION #5 – EXPERT OPINION
REASONS FOR DECISION
Clark J.:
INTRODUCTION
[1] On May 3, 2010, Mitchell Celise was shot to death in broad daylight on a Toronto street. The accused are charged with his murder.
[2] In the course of investigating this crime, the police seized certain letters and other documents from various sources. These writings are potentially important circumstantial evidence for the prosecution. In a separate ruling on another pre-trial application I have, with several exceptions, ruled the seized writings to be admissible. In order to assist in establishing authorship of these writings, the Crown seeks to call a handwriting analyst.
[3] On January 11, 2013, the proposed witness, Jennifer Comstock-Seavers, testified before me, following which I heard argument on the admissibility of her evidence. I reserved my decision, indicating that I would provide reasons as soon as time permitted; these are those reasons.
POSITIONS OF THE PARTIES
[4] The Crown contends that the witness is amply qualified and should be ruled to be an expert.
[5] The accused, Chael Mills, opposes the Crown’s application. Counsel for Mills contends that Ms. Comstock-Seavers is not sufficiently qualified to be considered an expert.
[6] The accused, Lavare Williams, takes no position on the issue.
THE ISSUE
[7] It is conceded that the proposed evidence is both relevant and necessary and, further, that there is no exclusionary rule that would bar its reception: R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9. The only Mohan criterion in dispute is whether the proposed witness is sufficiently qualified to be considered an expert.
THE PROPOSED EXPERT
[8] Ms. Comstock-Seavers attended Wilfrid Laurier University in 2001/02, where she majored in Chemistry and Biology. In 2002, she transferred to the University of Toronto, where she majored in Chemistry and Forensic Science. She received an Honours Bachelor of Sciences degree in 2005.
[9] Since 2005, Ms. Comstock-Seavers has been employed at the Centre of Forensic Sciences (“CFS”). From 2005 to 2008, she was employed as a Forensic Technologist and from 2008 to 2009 she was a Senior Forensic Technologist.
[10] Since 2009, the witness has dedicated herself exclusively to forensic document examination. She successfully completed a two-year in-house training program in this vocation. While she indicated that handwriting analysis is by no means all that a document examiner does, approximately 90 per cent of her time during that training was spent examining handwriting. She has now been certified by her superiors at CFS as a Forensic Document Examiner and is qualified, at least so far as CFS is concerned, to conduct her own examinations of questioned documents and, when required, to testify before courts of law. Her curriculum vitae lists numerous conferences she has attended on the subject of forensic document examination, as well as a number of courses and workshops she has completed on topics related to her field. In addition, she has made presentations in her field for the Ontario Police College and Toronto Police Service.
[11] The witness has examined documents in more than 35 cases submitted to the CFS, but has never been qualified in court before as an expert witness.
DISCUSSION
[12] To begin, although jurors are permitted to make their own comparisons of handwriting examples, in my view it is especially desirable to have expert evidence when dealing with handwriting comparison: R. v. Abdi (1997), 1997 4448 (ON CA), 34 O.R. (3d) 499 (C.A.), at p. 508. The question, then, is whether this witness is sufficiently qualified that she should be entitled to impart her opinions to the jury.
[13] Respecting the qualifications of a proposed expert witness, at p. 25 of Mohan, the court held that “the evidence must be given by a witness who is shown to have acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify”. A review of the witness’ CV, along with her evidence on this hearing, reveals that she satisfies that requirement.
[14] Mr. Rodocker complains that the witness’ work has not been “peer reviewed”. While that is true, two points are apposite.
[15] First, the witness is still in the early stages of her career, such that to the extent that it is common in her field to conduct research which is, in turn, published, she has had a relatively short time in which to undertake that sort of endeavour. In fairness to the witness, she indicated that she has undertaken one study of handwriting that, while not yet published, she expects will be published in the near future. Peer review would form a part of the process of having it published.
[16] Second, and more importantly for purposes of this analysis, her individual casework is not the sort of endeavour respecting which one would expect peer review, at least not in the sense in which that term is usually understood, i.e., a critical evaluation from a scholarly standpoint respecting academic work the author seeks to publish in an academic journal. That said, Ms. Comstock-Seavers testified that her work in any individual case is always reviewed by a supervisor as part of the quality control protocol in place at CFS. The same is true for all document examiners at the Centre, she said.
[17] As for the supervisory oversight to which the witness referred, Mr. Rodocker argues that the technical review of the witness’ work was inadequate because the reviewer only examined scanned copies of the documents in question and not the originals. Again, two points arise.
[18] First, inasmuch as the review is meant to be a quality control safeguard and not a second independent expert examination, it makes perfect sense that the reviewer would do a less intensive or less complete examination than the person, in this case Ms. Comstock-Seavers, whose opinion is actually being sought.
[19] Second, any shortcomings in the review process do not detract from the witness’ qualifications, as such; rather, at the most they might be said to impinge, albeit indirectly, on the weight to be attached to the witness’ evidence.
[20] Mr. Rodocker also made much of the witness’ acknowledgement in cross-examination that 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. 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 (S.C.J.) and R. v. Botha, 2011 ONCJ 326, [2011] O.J. No. 2934. 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.
[21] 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), 1980 2818 (MB PROVJCT), 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.
[22] The flaw in Mr. Rodocker’s argument is that it conflates expertise, which is a function of education and training, with how that expertise is applied and the manner in which opinions resulting from such applications are expressed. The manner of expression has, however, nothing to do with the witness’ expertise, as such, but, rather, reflects the reality of certain externally imposed conventions, which may differ from one organization to another. An example from the realm of psychiatry will illustrate my point. As an aid to diagnosing mental disorders, some psychiatrists use the International Classification of Diseases (ICD-10), published by the World Health Organization, whereas others, particularly North American practitioners, use the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, in its current iteration. One is not necessarily better than the other; they are just different. That said, as between two psychiatrists with the same academic and clinical training, one could not sensibly argue that one was an expert, and one not, as a function of the analytical tools they employ. Equally, here, even if there were some evidence that the system employed by the American organization is superior, which there is not, the fact that an expert uses an inferior classification system is, at the highest, a factor that would go to weight, not admissibility.
RESULT
[23] Having rejected Mr. Rodocker’s arguments, I am 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.
Clark J.
Released: February 19, 2013
COURT FILE NO.: 12-40000008-0000
DATE: 20130219
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Applicant
– and –
LAVARE WILLIAMS and CHAEL MILLS
Respondents
application #5 – EXPERT OPINION
reasons for decision
Clark J.
Released: February 19, 2013