R. v. Creary#3, 2021 ONSC 4937

COURT FILE NO.: 19-70000392-0000

DATE: 20210825

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KEERON CREARY

Defendant

John C. Healy, for the Crown

O. Benjamin Vincents, for the Defendant

HEARD: April 12, 14, 15, 16, 19, 20, 21, 22, 26, 27, 28, 29, May 3, 4, 5 and 6, 2021

MOLLOY J.:

REASONS FOR DECISION

(Opinion Evidence of Firearms Expert)

A. INTRODUCTION

1Keeron Creary is charged with three offences in relation to the shooting of Kevin Haselsteiner on Ontario Street in Toronto shortly before midnight on August 14, 2018: attempted murder; discharging a firearm with intent to wound or endanger life; and pointing a firearm at Mr. Haselsteiner. Mr. Haselsteiner was shot in the neck and lost a lot of blood due to arterial spray. He survived that injury and was discharged from hospital on September 20, 2018. Sadly, he died 31 days later, from a drug overdose.

2Within an hour of the shooting, Mr. Creary was arrested approximately eight blocks away, hiding in a carport near Carleton Street. He is charged with a number of offences relating to his actions on Carleton Street. immediately prior to his arrest and things in his possession at the time of his arrest, specifically: pointing a firearm at a police officer contrary to s. 87(1) of the Criminal Code; possession of a loaded prohibited firearm (the same one pointed at the police officer) contrary to s. 95(1) of the Criminal Code; possession of that same prohibited firearm contrary to s. 92(1) of the Criminal Code; possession of that same firearm while under a s. 110 prohibition order; possession of ammunition (found in his pocket) contrary to the s. 110 prohibition order; and breaching the term of a recognizance prohibiting him from being in possession of weapons or ammunition.

3Mr. Creary pleaded not guilty to all counts, and elected to be tried by a judge without a jury on the Zoom platform. There were a number of Charter applications by the defence, the nature and extent of which were expanded upon significantly on the eve of trial. The Crown brought a motion to dismiss those applications as being out of time or, in the alternative, for an adjournment of the trial. I dismissed the Crown’s motion and the trial started before me on April 14, 2021.

4I dealt with the Charter applications and the trial proper on a blended basis, and at the end of the evidence and argument, reserved my decision. There are many separate issues to be dealt with, as well as some issues that overlap. Rather than releasing one omnibus decision with every issue subsumed within it, I have written four separate decisions as follows, all released on the same day:

R. v. Creary #1, 2021 ONSC 4935: Point Firearm at Police Officer

R. v. Creary #2, 2021 ONSC 4936: Charter Applications: Exclusion of Evidence and Stay of Proceedings

R. v. Creary #3, 2021 ONSC 4937: Opinion Evidence of Firearms Expert

R. v. Creary #4, 2021 ONSC 4938: Attempted Murder and Related Charges

5While each of these decisions is meant to be a stand-alone, to fully understand the reasoning behind each decision, it may be necessary to refer to one or more of the other decisions. Ultimately, in a nutshell, I found Mr. Creary to be guilty of pointing the firearm at the police officer on Carleton Street and of being in possession of that firearm and ammunition (and therefore also being in breach of the prohibition order and recognizance).¹ I dismissed the Charter applications.² For the reasons set out below, the evidence of the firearms expert is admissible and reliable. The firearm Mr. Creary had in his possession and pointed at the officer is the same gun used to shoot Kevin Haselsteiner.

6For reasons provided in R. v. Creary #4, I have found that there is not sufficient evidence for me to conclude that the shooter intended to kill Mr. Haselsteiner. However, I am satisfied beyond a reasonable doubt that whoever shot Mr. Haselsteiner intended to wound him and would be guilty of discharging a firearm with intent to wound (as charged in Count 2 on the indictment). I cannot be satisfied beyond a reasonable doubt that Mr. Creary was the person who shot Mr. Haselsteiner. I am satisfied that, at a minimum, Mr. Creary was present or nearby at the time of the shooting and that he took the firearm, knowing it had been used in the shooting, and fled with it in order to assist the shooter to avoid liability for the shooting. He is therefore an accessory after the fact to the discharge firearm offence. I have amended Count 2 to reflect that and found Mr. Creary guilty on the amended Count 2.

7This decision deals with the evidence of the firearms expert. I have included only those background facts necessary to this issue. The bulk of the factual findings are in R. v. Creary #2 (Charter applications) and R. v. Creary #4 (substantive charges).

B. BACKGROUND FACTS

8Keeron Creary was arrested by members of the Toronto Police Emergency Task Force (“ETF”) at approximately 12:45 a.m. on August 15, 2018. He was lying on the ground behind a car parked in a carport in an alleyway known as Woodcock Lane, which runs north/south, parallel to and one block east of Sackville Avenue, ending at Carleton Street to the south. The carport was immediately behind the house next door to 308 Carleton Street.

9Less than an hour before that, D.C. Paul Walker was cruising the area in his police car, looking for a suspect in a shooting that had just happened nearby on Ontario Street. He spotted Mr. Creary running south on Sackville and gave chase in his police cruiser.³ Mr. Creary turned left on Carleton and hid behind a BMW parked in the driveway to the east of 308 Carleton. As D.C. Walker turned the corner onto Carleton and leapt from his cruiser, a man walking by with his dog pointed to the spot where Mr. Creary was hiding. D.C. Walker drew his weapon and approached, but his view was somewhat obstructed by a large flowering bush between him and the BMW. After some dodging and weaving around the bush, as the suspect dodged around the front end of the BMW, D.C. Walker was able to get a clear view of the person behind the car. It was Mr. Creary, and he was pointing a handgun directly at the officer. D.C. Walker called out, “I can see you. Drop the gun.” Mr. Creary ducked down behind the car again, and then reappeared between the car and an adjacent high fence, vaulted the fence, and disappeared into the garden of 308 Carleton. From there he jumped another fence, ending up in the alley, where he found another hiding place behind a different car in the carport next door. D.C. Walker called for backup. The police set up a perimeter area and officers from the ETF and Canine Unit began searching within it. An ETF officer with a high-powered flashlight mounted on his rifle discovered Mr. Creary hiding in the carport, whereupon he was arrested.

10Meanwhile, back at the driveway of 308 Carleton, police officers found a Walther 9 mm handgun on the ground at the front of the BMW, right where Mr. Creary had been hiding. The magazine had the capacity for 10 rounds of ammunition, but there were only four rounds in it. There was also one live round in the chamber. One of the rounds in the magazine was a 9 mm manufactured by Remington; the other four were 9mm Luger manufactured by GECO.

11Mr. Creary was searched, incident to his arrest. In the pocket of one of the three pairs of pants he was wearing, he had a clear plastic bag containing 11 rounds of 9 mm Luger ammunition manufactured by GECO.⁴ That ammunition is identical in appearance to the four rounds found in the Walther handgun.

12Back at the scene of the shooting on Ontario Street, Forensic Investigation Services (“FIS”) officers combed the area searching for bullets and used cartridges. They found five spent shell casings, all in the same small area, and all being 9mm Luger manufactured by GECO, identical in appearance to four of the bullets in the gun and all of the bullets in Mr. Creary’s pants pocket.

13The Crown’s theory is that shortly before midnight on August 14, 2018, Mr. Creary shot at Kevin Haselsteiner five times, hitting him once in the neck. Mr. Creary then fled on foot going south, then east, and then south again on Sackville, where D.C. Walker spotted him and gave chase. The Crown alleges that the Walther handgun found by the BMW is the same gun Mr. Creary pointed at D.C. Walker, and the same gun he used to shoot Kevin Haselsteiner a few minutes earlier.

14The Crown called Jennifer Plath as an expert witness at trial. She is a firearms examiner at the Centre for Forensic Sciences (“CFS”) in Toronto. I accepted Ms. Plath as an expert qualified to give opinion evidence in the examination and comparison of firearms and firearm components, ammunition, and ammunition components. Ms. Plath testified that the shell casings found at the crime scene on Ontario Street were fired by the Walther firearm recovered on Carleton Street, which firearm Mr. Creary had in his possession before his arrest.

15Defence counsel refused to consent to the opinion of Ms. Plath merely being filed at trial, taking the position that he needed to cross-examine her. At trial, defence counsel did not challenge the expertise of Ms. Plath to give the opinion that she did, but did ask some question in cross-examination. In argument at the end of the trial, defence counsel submitted the decision of Schreck J. dated March 26, 2021 in R. v. Donison⁵ which rejected the evidence of Ms. Plath in that case as being unreliable. Defence counsel submits that I also should reject the evidence of Ms. Plath in this case for the same reasons given in Donison.

C. THE TESTIMONY OF THE EXPERT IN THIS TRIAL

16Jennifer Plath is a forensic scientist in the Firearms and Toolmarks Section of CFS. Her employment at CFS began in 1999, following her graduation from the University of Toronto in 1999 with a B.Sc. (Hons) in biology and forensic sciences. She has been a forensic firearms technologist at CFS since July 2006, with her training in that field largely being through police and CFS courses, as well as forensic training courses in the United States.

17Toronto police test-fired the Walther 9 mm handgun found on Carleton Street. They provided CFS with the test-fired shell casing and the five spent shell casings found at the scene of the shooting. Ms. Plath undertook a microscopic examination of those five shell casings to determine whether they had been fired from the same gun as the test-fire casing provided by the police.

18In her testimony, Ms. Plath described the process of determining whether spent casings have been fired from the same gun. The first step is to compare class characteristics, which are predetermined by the manufacturer, such as the calibre, the kind of firing pin, or the direction in which the bullet will twist. If any of these do not agree, they cannot have been fired by the same gun. All of the casings in this case were consistent with the class characteristics of the test-fire casing.

19The next step is to consider sub-characteristics, which is a subset of class characteristics, consisting of marks incidental to the manufacturing process, but which are not idiosyncratic or by chance. She gave as an example a tool that makes 100 pieces at a time, with a characteristic that will carry over to more than one firearm. These marks, she said, would be continuous across the surface of the part. The five casings in this case did not have any of those type of marks.

20Therefore, the analysis in this case depended on the examination of the casings under a microscope searching for marks on the casings corresponding with individual characteristics of the handgun. Ms. Plath explained that in the manufacturing process, fine, irregular unique marks will be left in the metal of the firearm due to wear and tear of the manufacturing machinery, vibrations in the machinery as the gun parts are being manufactured, or anomalies in the metal itself. These individualized characteristics in the harder metal of the firearm will imprint on the softer metal of the bullet when the gun is fired. Markings on the bullets can be left by irregularities in the breech face, chamber, firing pin, ejector, and extractor of the firearm. These idiosyncrasies are then compared from one casing to the next to determine if they are identical.

21Ms. Plath examined the casings. She found identical, unique markings on all five spent casings from the crime scene as compared to the test-fire casing, using chamber marks and breech face marks. She testified that this was sufficient to conclude that they were fired by the same gun. However, she also compared marks left by the firing pin and was able to find identical marks there as well. Thus, there were identical markings left by three different parts of the firearm. Ms. Plath testified that, in her opinion, all five cartridges were fired by the same gun that fired the test round, i.e. the Walther 9 mm seized by police on Carleton Street. Ms. Plath also looked for marks left by the ejector and extractor but did not use them in coming to her conclusion. She testified that there were not sufficient marks left by these parts to make comparison possible.

22Ms. Plath acknowledged that there is no defined standard threshold to enable an analyst to give an opinion that bullets were fired by the same gun. However, in this case she was confident of her opinion to a “practical certainty.” In cross-examination, she explained that it is scientifically impossible to be absolutely certain, as that would require collecting and examining every firearm in the world. She also acknowledged that her opinion is in part subjective, based on her analysis of the marks under a microscope, but that this is based on objective components.

23As is the practice at CFS, another qualified scientist examined the same casings as a double-blind verification. He did not know who had done the initial analysis, and he did not know Ms. Plath’s conclusions. He came to the same opinion, also based on the chamber and breech face marks.

24Ms. Plath testified that this verification process is part of the quality assurance standards at the CFS labs, along with periodic quality reviews, annual proficiency testing and blind proficiency testing, all of which she undergoes regularly.

25In her examination-in-chief, Ms. Plath was asked about error rates in this type of analysis. She was also cross-examined on this point. She explained that it is not possible to assign an error rate to the actual case work done at CFS. An error rate assigns a percentage value based on the number of incorrect conclusions that are reached. However, it would not be possible to show if an opinion that a bullet was fired by a particular gun in a given case was correct or incorrect, since it can rarely ever be known whether this is the case. However, she testified that the accuracy of the scientific method used has been validated through many studies that have been done. Ms. Plath was aware of 15 validation studies that have been done since 2013 with respect to cartridge case comparisons. In seven of those studies there was a zero percent error rate and in the others the error rate was less than two percent. She also testified that in studies that examined consecutively manufactured gun parts, scientists were still able to track the spent casing back to the gun that fired it.

26Ms. Plath was cross-examined about her failure to photograph all of the areas of similarity noted in all of the casings involved. She explained that the photographs are taken for the purpose of reminding her of what she looked at. She said it was not possible to make verifications based on photographs. The casings need to be examined under a microscope, which is what is done by the verification scientist at CFS.

27On cross-examination, Ms. Plath said that she did not know whether she had ever examined bullets fired by a Walther 9 mm before and also agreed that she has never visited a Walther manufacturing plant. She testified that gun manufacturing is limited in how it is carried out and it would not be relevant to her opinion or examination to have visited the Walther manufacturing plant. She was unaware of how many Walther 9 mm handguns there would be in Canada. This is scarcely surprising given that the vast majority of them, like the one in this case, would be possessed illegally. She was also unaware of any validation studies specifically involving the Walther handgun.

D. THE DECISION IN R. v. DONISON

28The testimony of Ms. Plath in the Donison trial appears to be similar to her evidence before me in terms of the methodology used and the conclusions reached. However, Schreck J. did not accept Ms. Plath’s opinion in that case based on his conclusion that the science itself had not been proven to be reliable. One of the factors my colleague took into account was the absence of an error rate, stating:

In this case, not only has there been no evidence about an error rate, Ms. Plath denied in her testimony that any such error rate exists. The fact that no error rate exists suggests that the methodology being employed has not been validated or, if it has, the results of such validation have not been disclosed. In the absence of such evidence, Ms. Plath’s testimony that there has been a match “within the limits of practical certainty” is, with respect, largely meaningless. In addition to this, there has been no evidence that Ms. Plath has undergone any proficiency testing.⁶

29Before me, Ms. Plath explained that it is impossible to determine an error rate for case work done by CFS because there is no verifiable base from which to work. However, she pointed to numerous validation studies that, in my view, verified the accuracy of the science. I also do not consider the expression “within the limits of practical certainty” to be “meaningless.” Scientists will almost never express an opinion as an absolute certainty, because that is scientifically impossible. I also note that “absolute certainty” is not a legal standard. In the standard jury instruction given to every jury in Canada, judges tell juries that “absolute certainty” is an impossible standard, as follows:

You should also remember, however, that it is nearly impossible to prove anything with absolute certainty. Crown counsel is not required to do so. Absolute certainty is a standard of proof that is impossibly high.⁷

30Justice Schreck also noted, in para. 194, that there was no evidence before him that Ms. Plath had undergone any proficiency testing. I assume Ms. Plath was simply not asked that question by anyone during the Donison trial. That was not the situation before me. Ms. Plath testified that proficiency testing, both annual testing and blind proficiency testing, is part of the quality assurance program at CFS and she has been subject to it, as are all scientists there.

31On a related point, Schreck J. adversely commented on the fact that although Ms. Plath testified that her conclusions were reviewed by “another employee” at CFS, there was “no evidence as to the identity and qualifications of the other employee.”⁸ In the case before me, the person who did the verification testing was identified, the form he completed was produced, and I heard evidence that he is a fully-qualified analyst with the equivalent scientific qualification held by Ms. Plath.

32It would appear from the reasons of Schreck J. that the most significant reason for rejecting the validity of the science relied upon by Ms. Plath was the report of a study released in the United States in 2016, referred to as “PCAST.” Justice Schreck reasoned as follows:

In the United States, the use of forensic feature-comparison was the subject of a study conducted by the President’s Council of Advisors on Science and Technology (“PCAST”), which in 2016 released its Report to the President – Forensic Science in the Criminal Courts: Ensuring Scientific Validity of Feature Comparison Models. The Report concluded that because of the subjective nature of forensic feature-comparison, the foundational validity and reliability of any method should be empirically established before such evidence is relied upon: “For forensic feature-comparison methods, establishing foundational validity based on empirical evidence is thus a sine qua non. Nothing can substitute for it”: PCAST, at p. 6.

With respect to the type of analysis at issue in this case, PCAST noted that at the time of its report, only one reliable study had been done with respect to the validity of the methodology, which in PCAST’s view was insufficient to establish scientific foundational validity: PCAST, at p. 12. As a result, PCAST made the following findings (at pp. 112-113):

Foundational validity. PCAST finds that firearms analysis currently falls short of the criteria for foundational validity, because there is only a single appropriately designed study to measure validity and estimate reliability. The scientific criteria for foundational validity require more than one such study, to demonstrate reproducibility.

Whether firearms analysis should be deemed admissible based on current evidence is a decision that belongs to the courts.

If firearms analysis is allowed in court, the scientific criteria for validity as applied should be understood to require clearly reporting the error rates seen in appropriately designed black-box studies (estimated at 1 in 66, with a 95 percent confidence limit of 1 in 46, in the one such study to date).

Validity as applied. If firearms analysis is allowed in court, validity as applied would, from a scientific standpoint, require that the expert:

(1) has undergone rigorous proficiency testing on a large number of test problems to evaluate his or her capability and performance, and discloses the results of the proficiency testing; and

(2) discloses whether, when performing the examination, he or she was aware of any other facts of the case that might influence the conclusion.

Since the PCAST Report, some American courts have admitted firearm examination evidence, but only after the government adduced evidence of additional studies establishing foundational validity and, more importantly, the relevant error rate associated with the type of comparison being conducted: United States v. Harris, Criminal Action No.: 19-358 (RC) (D.D.C. Nov. 4, 2020), at pp. 9-14; United States v. Brown, 973 F.3d 667 (7th Cir.), at pp. 702-704. In some cases, courts have admitted the evidence but prevented the expert from testifying that there had been a conclusive match: United States v. Davis, Case No.: 4:18-cr-00011 (W.D. Va. Sep. 11, 2019), at pp. 9-15.⁹

33I have not been able to ascertain how the PCAST report came to be before Schreck J. in Donison. It was not an exhibit in that case, and Ms. Plath was not questioned about it at trial.

34More importantly, the PCAST report was not filed as an exhibit before me. Furthermore, although defence counsel came to trial armed with the decision in Donison, he also did not put to Ms. Plath any of the conclusions or recommendations referred to in the PCAST report. If counsel seek to undermine the reliability of an expert opinion based on scientific or other publications, there is an obligation to put those sources to the witness and give her an opportunity to respond. That was not done here, nor (it would appear) was it done in Donison. It is fundamentally unfair, based on the Rule in Browne v. Dunn, to impeach the reliability of a witness based on evidence never put to that witness and upon which she has had no opportunity to comment. That is even more the case when the witness is an expert, and the materials with which she is to be impeached are never introduced as evidence at trial.

35The reference in PCAST to error rates was not put to Ms. Plath. However, it is not the error rates of a particular lab in its actual case reports that are at issue, but rather error rates from “appropriately designed black-box studies.” I am not an expert in the field and am not going to speculate about what that means. However, I do note that there was evidence before me as to validation studies, all of which had extremely low error rates. I also note that Ms. Plath has been subjected to proficiency testing and has been successful in those tests. Further, her conclusions were verified in a blind analysis done by another fully-qualified scientist.

E. CONCLUSIONS

36I am not bound by the factual findings of another judge in another case based on different evidence than was before me.

37On the evidence before me, I find the foundation of Ms. Plath’s evidence to be scientifically valid. Obviously, I am not bound to accept her opinion, even where there is nothing to contradict it. However, I am persuaded that her evidence is highly reliable and unshaken by cross-examination.

38While the expert evidence, standing alone, could easily be sufficient to support a conclusion that the Walther firearm in question was used to shoot Mr. Haselsteiner, that is not the only evidence before me. There is also circumstantial evidence supporting that conclusion. The first 911 call reporting the shooting was at 11:53 p.m. I have found that at 11:57 p.m., P.C. Walker saw Mr. Creary running on Sackville Street, at which point Mr. Creary had the gun in his possession.¹⁰ Thus, within four minutes of the shooting, the firearm was about six city blocks away from the scene of the shooting. The magazine in the firearm has the capacity to hold 10 rounds of ammunition, but only had five rounds in it at the time it was seized by police. There were five spent casings at the scene of the shooting. All five of those casings are identical in appearance to four of the five live rounds found in the Walther. On the basis of all of this evidence combined, I am satisfied beyond a reasonable doubt that the gun recovered was the same gun that was used in the shooting. Indeed, I find the evidence on this point to be overwhelming.

Molloy J.

Footnotes

1. 1See R. v. Creary #1, 2021 ONSC 4935.
2. 2See R. v. Creary #2, 2021 ONSC 4936.
3. 3The findings of fact supporting the references in this paragraph are contained in R. v. Creary #1, 2021 ONSC 4935.
4. 4I found this evidence to be admissible at trial in R. v. Creary #2, 2021 ONSC 4936.
5. 5R. v. Donison, 2021 ONSC 2297.
6. 6Donison, at para. 194.
7. 7David Watt, Watt’s Manual of Criminal Jury Instruction, 2nd ed. (Toronto: Carswell, 2015) at p. 86; R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, at para. 31; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at paras. 93-96.
8. 8Donison, at para. 181.
9. 9Donison, at paras. 191-193.
10. 10See R. v. Creary #1, 2021 ONSC 4935.```