COURT FILE NO.: CRIM J(F) 1876/16

DATE: 20180209

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

James Clark, for the Crown

• and -

GREG GUTHRIE and DELON GRIFFITH

Paul Cooper and Lalitha Ramachandran for Greg Guthrie

Steven Stauffer for Delon Griffith

HEARD: May 4, 2017

RULING RE: QUALIFICATION OF SGT THOMAS SCARLETT – PROPOSED EXPERT RE: FINGERPRINT ANALYSIS

Fragomeni J.

[1] The voir dire to determine the qualifications of Sgt. Thomas Scarlett to give expert opinion evidence with respect to fingerprint analysis and comparisons was held on May 4, 2017.

[2] Sgt. Scarlett testified at the voir dire and counsel agreed that if the court concluded he was so qualified his voir dire testimony would apply to the trial proper.

[3] The main issue raised by the defence related to the methods used by Sgt. Scarlett and whether those methods are scientifically sound.

VOIR DIRE TESTIMONY OF SGT. SCARLETT

Examination in-Chief

[4] Sgt. Scarlett’s curriculum vitae was filed as Exhibit 1 at the voir dire. Sgt. Scarlett has been with the RCMP since 2006. He is presently stationed in Newmarket with the Forensic Identification Service (FIS) as the unit manager. He has been at FIS since 2008 and he has been the manager since 2014. He has conducted fingerprint analysis and comparisons since 2008.

[5] Sgt. Scarlett’s FIS qualifications are set out in detail in his CV. He sets out the courses, training and practical experience from January 2006 to November 2013. In February 2012 Sgt. Scarlett completed the Forensic Identification Apprentice Training Program and was designated as a Forensic Identification Specialist.

[6] Sgt. Scarlett sets out in his CV that he has been involved in over 300 cases where he conducted an examination of physical evidence. He has developed, using various methods, hundreds of latent friction ridge impressions, including fingerprints and palm prints. He also sets out in his CV that as a result of his training and case work he has made thousands of comparisons and individualized hundreds of fingerprints and palm prints. In each instance, the identifications were verified by another member of the FIS.

[7] Sgt. Scarlett’s court experience is set out as follows:

• May 15th, 2012 – Provincial Court, Terrace RCMP File 2010-2504 R. v. GODBOUT; PPT Cocaine. Accepted as an Expert Witness in regards to the Scientific Methodology of Fingerprint Identification, by the Honorable Judge C. STRUYK.

• January 22nd, 2015 – Ontario Provincial Court RCMP File 2013-1020563 Project ODRIVE; import cocaine. Accepted as an Expert Witness in regards to the Scientific Methodology of Fingerprint Identification, by the Honorable Justice Band.

• June 2015 – Ontario Court of Justice RCMP File 2014-305188 R Vs Craig Wright; Accepted as an Expert Witness in regards to the Scientific Methodology of Fingerprint Identification, by the Honorable Justice A. J. Watson.

[8] Sgt. Scarlett testified that he is proficiency-tested every three years at the RCMP.

[9] In addition to his ongoing learning, he is a member of two professional societies:

• International Association for Identification
• Canadian Identification Society

[10] Sgt. Scarlett testified that in the event he did make an error the file is forwarded to Ottawa for review. The result could be removal from FIS. Such an error has never occurred with Sgt. Scarlett.

[11] Sgt. Scarlett described that he utilized the ACE-V method to analyze and compare fingerprints. The process consists of the following:

A – Analysis of the unknown friction ridge; C – Comparison of the unknown friction ridge print to the known control inked friction ridge E – Evaluation as to the sufficiency of detail present to establish individualization V – Verification occurs when another qualified examiner verifies the process used, inspects the observations made and validates the conclusions reached.

Cross-Examination for Guthrie

[12] In cross-examination, Sgt. Scarlett confirmed or acknowledged the following:

• fingerprint analysis is not a science;
• there is no scientific basis to establish that fingerprints are unique to one person;
• the ACE-V method involves an objective process ultimately resulting in an opinion which is a subjective belief;
• there are no set or fixed standards with respect to friction ridge details for comparison purposes. However, as an examiner, he compares every friction ridge and follows each ridge on the latent unknown print to the known print;
• he conducts a quantitative and qualitative analysis;
• there is no official error rate monitoring;
• he is aware of the Report to the President dated September 2016 relating to Forensic Science in Criminal Contents Ensuring Scientific Validity of Feature – comparison methods
• he was familiar with the Mayfield case;
• there is no way of dating fingerprints;
• the verification by a second examiner is not a blind examination and that makes it prone to confirmation bias.

Re-Examination

• In the Mayfield case the print considered was a low quality print and the FBI did not follow the ACE-V method properly;
• The two error rate studies in the Report to the President are understandable for the following reasons:
• the single friction ridge was of lower quality. The ACE-V method was followed but without verification. Clerical errors were also included in the error rate study;
• in the Miami Dade study, it dealt with one single low quality print compared to 10 known prints. The verification portion was not done.

POSITION OF THE CROWN

[13] The Crown submits that the Mohan threshold for admissibility of expert opinion has been met. The forensic identification of fingerprints is an area of specialized knowledge that has long been accepted by the courts. Sgt. Scarlett has gone through a rigorous training process to become certified as a fingerprint examiner. He has developed extensive experience in case work.

[14] The Crown submits that the fingerprint evidence is logically relevant to the charges. The presence of Guthrie’s fingerprints within the drug filled suitcases, in close proximity to the drugs themselves, is powerful evidence.

[15] The Crown argues further that the proposed evidence is reliable and necessary.

[16] The proposed evidence is not complicated and will not be lengthy. It does not determine the ultimate issue in the trial but is one piece of evidence within the entire body of evidence called by the Crown. The cost/benefit analysis clearly favours admission.

POSITION OF GUTHRIE

[17] The defence submits that there is no scientific evidence that fingerprints are unique to one human being.

[18] Further, Sgt. Scarlett acknowledged in his voir dire testimony that fingerprint analysis and comparison is not a science.

[19] The defence relies heavily on the Report to the President in arguing that the ACE-V method is not a proper method to conduct these examinations. Since the verification process is not a blind test it is susceptible to confirmation bias. Further, since there are no fixed standards for the ACE-V method the opinion is purely subjective.

[20] In summary, the defence submits that fingerprint analysis and comparison is in fact “junk science”.

ANALYSIS AND CONCLUSION

[21] On the evidentiary record before me at the qualification voir dire I am satisfied that Sgt. Thomas Scarlett can be qualified as an expert to give opinion evidence relating to fingerprint and palm print analysis and comparison.

[22] I am satisfied that the threshold requirements of admissibility set out in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, namely, relevance, necessity, absence of an exclusionary rule and a properly qualified expert, have been met.

[23] I am also satisfied that in my duties as a gatekeeper the expert evidence is sufficiently beneficial to the trial process to warrant its admission.

[24] In R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, Justice Doherty set out the following at paras. 75 to 79:

[75] The four criteria controlling the admissibility of expert opinion evidence identified in Mohan have achieved an almost canonical status in the law of evidence. No judgment on the topic seems complete without reference to them. The four criteria are:

• relevance; [page 355]
• necessity in assisting the trier of fact;
• the absence of any exclusionary rule; and
• a properly qualified expert.

[76] Using these criteria, I suggest a two-step process for determining admissibility. First, the party proffering the evidence must demonstrate the existence of certain preconditions to the admissibility of expert evidence. For example, that party must show that the proposed witness is qualified to give the relevant opinion. Second, the trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence. This “gatekeeper” component of the admissibility inquiry lies at the heart of the present evidentiary regime governing the admissibility of expert opinion evidence: see Mohan; R. v. D. (D), 2000 SCC 43, [2000] 2 S.C.R. 275, [2000] S.C.J. No. 44; J.(J.); R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239, [2007] S.C.J. No. 6; K. (A.); Ranger; R. v. Osmar (2007), 2007 ONCA 50, 84 O.R. (3d) 321, [2007] O.J. No. 244 (C.A.), leave to appeal to S.C.C. refused (2007), 85 O.R. (3d) xviii, [2007] S.C.C.A. No. 157.

[77] I appreciate that Mohan does not describe the admissibility inquiry as a two-step process. It does not distinguish between what I refer to as the preconditions to admissibility and the trial judge’s exercise of the “gatekeeper” function. My description of the process as involving two distinct phases does not alter the substance of the analysis required by Mohan. In suggesting a two-step approach, I mean only to facilitate the admissibility analysis and the application of the Mohan criteria.

[78] It is helpful to distinguish between what I describe as the preconditions to admissibility of expert opinion evidence and the performance of the “gatekeeper” function because the two are very different. The inquiry into compliance with the preconditions to admissibility is a rules-based analysis that will yield “yes” or “no” answers. Evidence that does not meet all of the preconditions to admissibility must be excluded and the trial judge need not address the more difficult and subtle considerations that arise in the “gatekeeper” phase of the admissibility inquiry.

[79] The “gatekeeper” inquiry does not involve the application of bring line rules, but instead requires an exercise of judicial discretion. The trial judge must identify and weigh competing considerations to decide wither on balance those considerations favour the admissibility of the evidence. This cost-benefit analysis is case-specific and, unlike the first phase of the admissibility inquiry, often does not admit of a straightforward “yes” or “no” answer. Different trial judges, properly applying the relevant principles in the exercise of their discretion, could in some situations come to different conclusions on admissibility.

[25] At para. 89, Justice Doherty notes the following:

[89] In assessing the potential benefit to the trial process flowing from the admission of the evidence, the trial judge must intrude into territory customarily the exclusive domain of the jury in a criminal jury trial. The trial judge’s evaluation is not, however, the same as the jury’s ultimate assessment. The trial judge is deciding only whether the evidence is worthy of being heard by the jury and not the ultimate question of whether the evidence should be accepted and acted upon.

[26] In R. v. Giles, 2016 BCSC 294, the Honourable Madam Justice Ross sets out the following at para. 62:

[62] Durno J. provides a non-exhaustive list of factors to assist in the determination of whether the witness is qualified at para. 31:

[31] In summary, the following non-exhaustive list of factors assist in determining whether a tendered expert witness is qualified;

• the manner in which the witness acquired the special skill and knowledge upon which the application is based; • the witness’ formal education (i.e. degrees or certificates); • the witness’ professional qualifications (i.e. a member of the College of Physicians and Surgeons); • the witness’ membership and participation in professional associations related to his or her proposed evidence; • whether the witness has attended additional courses or seminars related to the areas of evidence in dispute; • the witness’ experience in the proposed area(s); • whether the witness has taught or written in the proposed area(s); • whether, after achieving a level of expertise, the witness has kept up with the literature in the field; • whether the witness has previously been qualified to give evidence in the proposed area(s), including the number of times and whether the previous evidence was contested; • whether the witness has not been qualified to give evidence in the proposed area(s) and if so, the reason(s) why; and • whether previous caselaw or legal texts have identified the contested area as a proper area for expert evidence and if so, who might give the evidence.

[27] I am satisfied that the CV of Sgt. Scarlett, in addition to the testimony he gave at the qualification voir dire, establishes his qualifications to give expert opinion evidence on fingerprint and palm analysis and comparisons.

[28] In Giles, the Court dealt with the second stage analysis set out in Abbey at paras. 64 to 66 as follows:

[64] At this stage, the court is to assess evidence that has satisfied the Mohan threshold criteria and to consider whether the evidence is sufficiently beneficial to the trial process to warrant admission despite the potential harm that its admission may entail, see Abbey 2009 at para. 76. As Doherty J.A. notes at para. 79, this stage of the analysis does not involve the application of bright line rules. The analysis requires the exercise of judicial discretion and is a case-specific inquiry.

[65] The benefit side of the analysis addresses issues relating to the probative value of the evidence. The court is to consider the reliability of the evidence in terms of its subject matter, the methodology used by the proposed expert, the expertise and impartiality of the proposed expert, see Abbey 2009 at para. 87.

[66] The cost side of the analysis focuses on “consumption of time, prejudice and confusion”. Doherty J.A. describes the most important of these risks as the “danger the jury will be unable to make an effective and critical assessment of the evidence”, Abbey 2009 at para. 90.

[29] I agree with the Crown’s position that the cost benefit analysis favours admission.

[30] With respect to Guthrie’s main argument that the Report to the President establishes that the ACE-V method is so flawed it cannot be relied on, it is important to note that this Report is not evidence. In R. v. Bornyk, 2015 BCCA 28, the BC Court of Appeal commented on the fact that a judge may only rely on evidence. At paras. 8 to 14 the Court stated:

[8] It is basic to trial work that a judge may only rely upon the evidence presented at trial, except where judicial notice may be taken. In R. v. R.S.M., 1999 BCCA 218, 1999 BCCA 0218 Mr. Justice Finch (later C.J.B.C.) succinctly observed:

[20] In my respectful view, there is no merit in the appellant’s argument on this ground of appeal. The trial judge had to decide the case on the evidence that was adduced at trial and on his view of its reliability. Judges often have less evidence than they might wish to have, but they are required to try the case on the evidence that counsel puts before the Court.

See also, R. v. Cloutier, 2011 ONCA 484, 272 C.C.C. (3d) 291.

[9] Judicial notice, of course, is limited to facts that are notorious or generally beyond debate, as in the assertion the earth is not flat, or are capable of immediate and accurate demonstration from readily accessible sources of indisputable accuracy, as in the assertion that New Year’s Day in 2015 fell on a Thursday: R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863; R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458.

[10] In this case, it is apparent from the excerpts found in the reasons for judgment and the descriptive titles of the articles that the articles uncovered by the judge are discussions on the subject of fingerprint analysis, including opinion. As articles commenting on forensic science, their contents are not matters of which the judge could take judicial notice. It is thus axiomatic that it was not open to the judge to embark on his independent investigation.

[11] By his actions, the judge stepped beyond his proper neutral role and into the fray. In doing so, he compromised the appearance of judicial independence essential to a fair trial. While he sought submissions on the material he had located, by the very act of his self-directed research, in the words of Justice Doherty in R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 189 O.A.C. 90, 241 D.L.R. (4th) 490 at para. 71, he assumed the multi-faceted role of “advocate, witness and judge”.

[12] Nor was it open to the judge to consider the fruits of his investigation, given the nature of the materials he located. In Rex v. Anderson (1914), 1914 CanLII 361 (AB CA), 7 Alta. L.R. 102, 22 C.C.C. 455 at 459-460 (S.C.(A.D.)) Chief Justice Harvey, for the Court, explained in reasons still applied today:

… As all evidence is given under the sanction of an oath or its equivalent, it is apparent that text-books or other treatises as such cannot be evidence. The opinion of an eminent author may be, and in many cases is, as a matter of fact, entitled to more weight than that of the sworn witness, but the fact is that, if his opinion is put in in the form of a treatise, there is no opportunity of questioning and ascertaining whether any expression might be subject to any qualification respecting a particular case. … On principle, therefore, nothing may be given from a text-book, other than as the opinion of a witness who gives it. On cross-examination the Judge should be careful to see that an improper use is not made of text-books, practically to give in evidence opinions of absent authors at variance with those of the witness. It is quite apparent that if the witness is asked about a text-book and he expresses ignorance of it, or denies its authority, no further use of it can be made by reading extracts from it, for that would be in effect making it evidence, but if he admits its authority, he then in a sense confirms it by his own testimony, and then may be quite properly asked for explanation of any apparent differences between its opinion and that stated by him.

[13] In R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223 at 251, 108 D.L.R. (4th) 47, Justice McLachlin (now C.J.C.) explained:

The proper procedure to be followed in examining an expert witness on other expert opinions found in papers or books is to ask the witness if she knows the work. If the answer is “no”, or if the witness denies the work's authority, that is the end of the matter. Counsel cannot read from the work, since that would be to introduce it as evidence. If the answer is “yes”, and the witness acknowledges the work’s authority, then the witness has confirmed it by the witness’s own testimony. Parts of it may be read to the witness, and to the extent they are confirmed, they become evidence in the case. This procedure was laid out in R. v. Anderson (1914), 1914 CanLII 361 (AB CA), 22 C.C.C. 455 (Alta. S.C.) and has been followed by Canadian courts. …

[14] Not the least of the problems with the approach adopted by the judge is it opened the door to a mistaken comprehension and application of the information in the articles even if in the field of fingerprint analysis they would be considered authoritative and applicable to procedures employed in this case, an assumption not established in the evidence.

[31] In the case at bar, Sgt. Scarlett was asked about this report and explained why some of the findings were made. Sgt. Scarlett, however, maintained his position that the ACE-V method is the appropriate method and in his experience and extensive training yields accurate results.

[32] In all of these circumstances any concerns raised by Guthrie with respect to the process followed in this case are matters that can properly be dealt with in cross-examination. The weight to be given to Sgt. Scarlett’s opinion will be viewed within the context of that cross-examination. Sgt. Scarlett’s opinion will also be considered, not in isolation, but within the context of the entire body of evidence called at trial.

[33] With the consent of defence counsel this ruling applies to the proposed expert testimony of Cst. Andrea MacLeod. As such, a separate ruling with respect to her proposed testimony is not required.

Fragomeni J.

Released: February 9, 2018

COURT FILE NO.: CRIM J(F) 1876/16

DATE: 20180209

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

GREG GUTHRIE and DELON GRIFFITH

RULING RE: QUALIFICATION OF SGT THOMAS SCARLETT – PROPOSED EXPERT RE: FINGERPRINT ANALYSIS

Fragomeni J.

Released: February 9, 2018