COURT FILE NO.: CR17-066-0000
DATE: 20180207
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Elizabeth Barefoot, for the Federal Crown
- and -
Brian Turner
Mr. M. Mansour, as agent for Mr. P. Chmiel, for the Accused
Accused
HEARD: February 5, 2018
REASONS FOR DECISION ON CROWN PRETRIAL APPLICATION:
Expert Evidence - Handwriting
Conlan J.
I. Introduction
The Charge
[1] Mr. Brian Turner (“Turner”) stands charged on a one-count Indictment as follows: that he, between May 15 and July 17, 2015, at Wiarton (the Town of South Bruce Peninsula), did possess oxycodone (a Schedule I substance) for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act.
[2] After failing to appear for jury selection in Owen Sound the morning of February 5, 2018, Turner has re-elected to be tried in the Superior Court of Justice, by a judge sitting alone. The trial began on February 5th. On consent, a blended hearing is being conducted with regard to the trial proper and the Crown’s Application to adduce expert evidence concerning handwriting analysis.
The Basic Facts
[3] In the summer of 2015, the Ontario Provincial Police (“police”) were conducting surveillance on a property on George Street in Wiarton (“property”). The targets of the drug investigation were Turner and another man named Christopher Byers (“Chris”).
[4] The police observed Turner on the property on May 15 and June 11, 2015. On July 8, 2015, the police observed Turner driving a van that was seen on the property when Turner was there on May 15 and June 11. The van was not registered to Turner.
[5] On July 17, 2015, the police executed a search warrant on the property. Hundreds of suspected oxycodone pills were seized, along with other alleged indicia of trafficking such as debt lists. Many of the items that were seized (both suspected oxycodone and multiple debt lists) were discovered inside a shed located on the property. A black book was seized from inside the van referred to above; it was located inside the glove box, along with an envelope addressed to Turner.
[6] Chris and Tammy Byers were arrested by the police on July 17. They were seen exiting the shed. Chris was found to have suspected oxycodone on his person.
[7] An arrest warrant was issued for Turner. When he was arrested, he had no narcotics on his person but had a cellular telephone and $1830.00 in cash.
[8] The police sent some of the evidence away for analysis. In particular, a debt list that was found inside a cooler at the bottom of a gun safe inside the shed was tested for fingerprints. According to Detective Constable Thompson (“Thompson”), the results show a print from Turner. Certain items were sent to the Centre of Forensic Sciences (“CFS”) in Toronto for handwriting analysis.
The Crown Application
[9] The Federal Crown has tendered evidence from Jacqueline Osmond (“Osmond”), an employee of the CFS since September 1999.
[10] That evidence includes Osmond’s report dated May 1, 2017 (Exhibit 12) and her fairly brief oral testimony in Court on February 5, 2018. Thus far, the Court has heard evidence from Thompson and Osmond. The Defence called no evidence on the Application. We are just one-half day into the trial, which resumes on February 20.
[11] The Application is opposed by the Defence. It is argued on behalf of Turner that the proposed expert evidence is inadmissible.
A Summary of Osmond’s Opinion
[12] Osmond has concluded that the writer of CFS item 12 (an allegedly known writing sample of Turner) probably wrote some of the questioned writing on CFS items 9 and 6 (both items being debt lists seized by the police).
The Ruling
[13] All of the evidence on the Application and the submissions of counsel were completed in just one-half day of Court time. At the conclusion of counsel’s arguments, the Court ruled that the Application was granted; the proposed expert evidence of Osmond is admissible at trial.
[14] I promised written reasons for that ruling. These are those reasons.
II. Analysis
The Onus and Standard of Proof
[15] The burden of proof is on the Crown to demonstrate, on a balance of probabilities, that the proposed expert evidence is admissible.
A Summary of the Applicable Legal Principles
[16] Opinion evidence is generally inadmissible; expert opinion may be an exception in certain circumstances. R. v. Abbey (2009), 2009 ONCA 624, 246 C.C.C. (3d) 301 (Ont. C.A.), at paragraph 71.
[17] There are four basic requirements for the admission of expert evidence: (i) it must be relevant, (ii) it must be necessary to assist the trier of fact, (iii) it must not be the subject of any exclusionary rule, and (iv) it must be adduced through a properly qualified expert. R. v. Mohan (1994), 1994 CanLII 80 (SCC), 89 C.C.C. (3d) 402 (S.C.C.), at pages 411-415.
[18] Relevance has two components – logical relevance and legal relevance.
[19] To establish logical relevance, one may ask whether the tendered evidence makes the proposition at issue more likely to be than if that tendered evidence was absent. R. v. J. (J.-L.) (2000), 2000 SCC 51, 148 C.C.C. (3d) 487 (S.C.C.), at page 507.
[20] Logical relevance is not enough, however, as legal relevance must also be established. This involves an assessment of the probative value versus the prejudicial effect. Put another way, a cost-benefit analysis must be undertaken. The Court may consider the extent to which the proposed expert evidence is grounded on proven facts, the extent to which it supports the inference sought to be made from it, the extent to which it relates to something actually at issue in the case, the reliability of the evidence, its complexity and whether it might distort the fact-finding process, and the extent to which the evidence is controversial. R. v. K.(A.) (1999), 1999 CanLII 3793 (ON CA), 137 C.C.C. (3d) 225 (Ont. C.A.), at paragraphs 77-89.
[21] As can be seen, the Court has an important gatekeeper role.
[22] Although reliability, per se, is not listed as one of the factors in Mohan, supra, threshold reliability may affect all of those factors. R. v. F.(D.S.) (1999), 1999 CanLII 3704 (ON CA), 132 C.C.C. (3d) 97 (Ont. C.A.), at page 110.
[23] As for necessity, mere helpfulness is not enough. The expert must provide information likely outside the experience and knowledge of the trier of fact. Mohan, supra, at pages 413-414.
[24] Put another way, the necessity requirement is met where it can be said that lay persons are apt to come to the wrong conclusion without expert assistance, or where access to important information will be lost unless the trier of fact borrows from the expert evidence. R. v. D.(D.) (2000), 2000 SCC 43, 148 C.C.C. (3d) 41 (S.C.C.), at paragraphs 46-56.
[25] On whether the proposed expert evidence is the subject of an exclusionary rule, there is no outright rule that proposed expert evidence is inadmissible if it goes to the ultimate issue in the case. R. v. Burns (1994), 1994 CanLII 127 (SCC), 89 C.C.C. (3d) 193 (S.C.C.), at page 201; R. v. Bryan, 2003 CanLII 24337 (ON CA), [2003] O.J. No. 1960 (C.A.), at paragraphs 14-18.
[26] It is also true, however, that the closer the proposed evidence comes to the ultimate issue to be decided, the stricter the scrutiny of that evidence will generally be. Mohan, supra, at pages 413-414; J.(J.-L.), supra, at paragraph 37.
[27] Courts, particularly since the Supreme Court of Canada decided R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, have been careful to not ignore the dangers associated with the admission of expert evidence.
[28] It is not satisfactory for the Court to simply rubber-stamp the proposed expert evidence based on the notion that similar evidence has been admitted in other cases.
[29] As for the need for a properly qualified expert, it is not expected that the proposed expert be the most qualified, whether through experience or knowledge or both. That someone else may be more qualified goes to weight and not to admissibility. What is required is that the proposed expert possess special or peculiar knowledge that goes beyond that of the trier of fact. Mohan, supra, at pages 414-415; R. v. Thomas (2006), 2006 CanLII 1012 (ON SC), 207 C.C.C. (3d) 86 (Ont. Sup. Ct.), at paragraph 18.
The Legal Principles Applied to this Case
[30] The main audience for these reasons is Turner, as he was unsuccessful in resisting the admission of the proposed expert evidence. Thus, some observations of the submissions made on his behalf are important. The reasons for the Court’s decision should be responsive to those arguments.
[31] No case law was filed on behalf of Turner. None was referred to either. Two points were raised by the Defence in submissions. First, the prejudicial effect of the proposed expert evidence outweighs its probative value. Second, the evidence is not sufficiently reliable.
Relevance
[32] Logical relevance is not disputed by the Defence. Surely, the evidence of Osmond passes this hurdle. Her evidence makes it more likely that the debt lists that were seized by the police were written, at least in part, by Turner.
[33] Both of the arguments advanced on behalf of Turner fall under the heading of legal relevance. I reject those arguments.
[34] On the prejudice versus probative value issue, this is a Judge-alone trial. I am not going to be overwhelmed by the mystique of Osmond’s expert evidence. Besides, Osmond herself has clearly outlined its limitations. There is a more certain conclusion available to handwriting experts, one above the “probable” conclusion reached here. Osmond did not resort to that more certain conclusion. Further, page two of her report expressly underscores the subjective nature of handwriting analysis. Finally, many of the items examined by her were not useful at all. Her conclusion, summarized above, is limited to just three of the twelve items that she looked at.
[35] There is no prejudice to Turner, while there is some probative value to Osmond’s evidence. It is one piece of circumstantial evidence in support of the Crown’s case. It is still very early in the trial, however, it is readily apparent that the main issue is possession. The Crown will need to tie Turner to the property where the oxycodone was found. The handwriting analysis evidence is probative in that regard.
[36] On the reliability issue, Mr. Mansour submitted that we do not know “for certain” whether the black book seized by the police from the van and relied upon by Osmond as containing known writing of Turner was in fact Turner’s book. That misses the point. The Crown does not have to prove that fact for certain. The question is whether there is a solid foundation for that assumption. There is. After all, the book actually contains a page that says that it belongs to Turner, with his full name, address and telephone number. And it was found along with an envelope addressed to Turner, inside the glove box of a van that he was seen driving.
[37] Finally, Mr. Mansour complains that Osmond received no other known writings from anyone else besides Turner. That is irrelevant. Osmond testified that the said circumstance is not at all unusual. I accept that evidence.
[38] Really, the Defence arguments go to weight, not admissibility.
Necessity
[39] This is not disputed by the Defence. Although I can examine the writings in question and draw my own conclusions, I do not have the training and experience that Osmond has. In short, I do not know what to look for.
The Absence of any Exclusionary Rule (the Ultimate Issue)
[40] This is not disputed by the Defence. Osmond’s evidence does not run afoul of any exclusionary rule. It does not come anywhere close to usurping my role in deciding whether Turner possessed the oxycodone and, if so, for what purpose. It does not even attempt to state for certain that any of the writings in question was made by Turner.
A Properly Qualified Expert
[41] This is not disputed by the Defence. Osmond was an impressive witness in Court. She freely admitted the imperfections of and qualifications to her opinions. She has testified as an expert in this field, forensic document examination including handwriting and signature analysis, 37 times. She has never been rejected by any arbiter as a properly qualified expert in this field.
III. Conclusion
[42] For these reasons, I decided that the proposed expert evidence of Osmond is admissible at trial. The Crown met point its burden. The Application was granted.
Conlan J.
Released: February 7, 2018
COURT FILE NO.: CR17-066-0000
DATE: 20180207
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
Brian Turner
Accused
REASONS FOR DECISION ON CROWN PRETRIAL APPLICATION:
Expert Evidence - Handwriting
Conlan J.
Released: February 7, 2018