Court File and Parties

COURT FILE NO.: CR-23-212 DATE: 20240902 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – EMMANUEL AYO Defendant

COUNSEL: C. Heron, for the Crown J. Prosser, for the Defendant

HEARD: May 1, 2024

Expert Evidence Ruling

CARNEGIE J.

[1] Mr. Ayo is charged with seven Criminal Code offences, largely related to firearm, property and breach of release order offences, stemming from events and his arrest on September 22, 2022.

[2] Pre-trial motions respecting a judge and jury trial were slated to commence on May 1, 2024. Instead, Mr. Ayo re-elected to be tried before a judge alone and his trial commenced on this date. For a variety of reasons, the defence’s Charter application did not proceed on this date. That application will proceed in a blended fashion as part of his ongoing trial. The Crown’s discreditable conduct application has largely been conceded but a Nikolovski application is pending.

[3] What remains, before the defendant’s trial continues on November 18, 2024, is a determination of a Mohan application respecting proposed Crown expert evidence which was brought, viva voce, at the commencement of trial. A voir dire commenced to consider the admissibility of this opinion evidence.

[4] On May 1, 2024, I heard from the Crown’s proposed expert witness, Sgt. Peter Reinjtes of the Ontario Provincial Police. The Crown seeks to introduce opinion evidence from Sgt. Reinjtes respecting the classification, functioning and a comparison of firearms. The defence concedes the classification and functioning of the relevant seized firearm, meaning that its ‘firearm’ and ‘prohibited’ status pursuant to the Criminal Code and regulations is admitted. What is contested is a comparison of the firearm (a handgun) seized at the scene of the defendant’s arrest with that of a firearm seen brandished in a social media video from the day prior. More particularly, the Crown seeks the admission of opinion comparison evidence based upon the nature and specific, or unique features of the subject firearm, including specific markings evident on the seized and pictured firearms.

[5] Presumably, any positive comparison is relevant to establishing the defendant’s possession and control over this firearm at the arrest scene and immediately prior. And, while this may otherwise be classified as observation-based evidence restricted to the trier of fact’s assessment, the Crown seeks to rely upon the Sgt. Reinjtes’ specialized knowledge respecting where unique markings are located on this firearm and why their location matters. Further, the prevalence of this type of firearm in Canada, said to be exceedingly rare, is also intended evidence for the Crown to further buttress their possession and control narrative.

Factual Background

[6] The factual narrative was alluded to throughout counsel’s submission. Materials filed for pending applications provided a more detailed summary for my consideration.

[7] On September 22, 2022, police located a stolen Toyota Camry in a parking lot at 627 Third Street in the City of London. A male suspect, allegedly the defendant, was observed entering that vehicle. The police Emergency Response Service attended and blocked this vehicle in. The suspect than ran on foot from the scene. This male was observed to be running with his right arm tucked towards his front in the area of his waist. Police pursued and apparently kept visual contact with him.

[8] The suspect ran towards a wooden fence separating 628 and 630 Third Street. A Police Service Dog was deployed in pursuit. The suspect went over the fence, the pursuing PSD got through a gap in the fence. The suspect was found at the corner of 630 Third Street by an officer, the PSD having “apprehended” him. The suspect was arrested. The PSD then conducted an article search along the route of the pursuit. The dog “indicated” on a cell phone located in a mulch area enroute. It was seized. A separate officer who attended the scene of the arrest observed a black handgun on the ground some 3 feet away from arrest location.

[9] The firearm was identified as a Ruger EC9, and it was loaded with one round of Federal 9mm Luger ammunition in the chamber and 7 other rounds in the magazine. Its condition was noted as dry despite observations that the area was wet due to rain shortly beforehand. Further, upon inspection of the firearm, where the serial number should have been, instead police observed various punch or drill markings obliterating any serial number reference.

[10] Search incident to arrest, the suspect was found to have a key fob on his person which was connected to the stolen Toyota Camry.

[11] A search warrant was sought and obtained authorizing a search of the seized cell phone. Numerous videos were located on the phone and examined. Police believe that these videos depict the defendant and third parties in possession of firearms at various locations in London. Specifically, in one video purportedly recorded on September 21, 2022, at 3:03pm, the defendant is apparently identified as brandishing a firearm.

[12] In voir dire, Sgt. Reinjtes identified this firearm as a Ruger EC9. A subsequent comparison between this video identified firearm and the seized firearm from the September 22nd, 2022 arrest scene was conducted. Sgt. Reinjtes identified them as, in essence, one and the same, sharing similar specific features including similar random obliteration patterns on the firearm’s serial number plate. In his November 2, 2023 report conclusion, Sgt Reinjtes concludes: “the odds of two unlawfully imported Ruger EC9 handguns with so similar random obliteration patterns, coupled with the geographic location of the recovery of the LPS exhibit firearm and the known subject identified possessing the extracted video Ruger EC9 handgun, leave me to believe with so little doubt as to not be a reasonable doubt, considering all the facts, that the two pictured firearms are the same Ruger EC9 prohibited semi-automatic firearm.”

[13] Further, Sgt. Reinjtes was asked by the Crown about trends in firearms available in Canada and, specifically, within this region. With respect to a Ruger EC9, he has never seen this firearm before, let alone in Canada. Since 1995, as a result of legislation banning firearms due to their barrel lengths, there should be no like firearms in Canada. As part of his duties, he keeps apprised of seized firearms by OPP in the West Region, most smuggled in from the United States of America. In his opinion, the firearm is extremely rare in Canada, let alone in the West Region of Ontario, amounting to a no more than a “few dozen at most” in Canada.

Sgt. Reinjtes Expert Qualifications

[14] As noted, the Crown seeks to qualify this witness as an expert in the classification, functioning and comparison of firearms. Sgt. Reinjtes has worked with the Ontario Provincial Police since September 1996. He is presently the OPP’s Lead Firearms Examiner for the West Region. Prior, he served in the Canadian Armed Forces from November 1989 through September 1996 and has continued to have significant involvement with military command, training and active service, including three deployments as part of his military service.

[15] Sgt. Reinjtes has undergone extensive training and certifications, including:

1. instructor qualifications and experience with the OPP relating to the Firearms Examiners Course as well as with the CAFs;
2. firearms verifier and examiner course qualifications and regional mentoring of colleagues;
3. annual firearm certifications including advanced handgun certification and military small arms qualification and instruction; and
4. multi-level police sniper certifications, inclusive of competitive team and individual honors in marksmanship events.

[16] Sgt. Reinjtes has also consulted with both the RCMP and local police services on firearms cases, providing examination, classification and comparison identification opinions on appropriately 350 cases, of which over 90 of the cases proceeded in some fashion to court. He has been qualified in court to provide opinion evidence on four occasions, including the provision of examination, classification, and identification evidence. He has recently been sought for identification evidence on multiple cases, where, as here, firearm identification from video or still photographs was requested. Given the prevalence of social media evidence, this has become a burgeoning area of his work.

Positions of the Parties

[17] As noted, and in specific issue, the Crown seeks the admission of opinion evidence respecting the comparison of these firearms. That evidence includes the identification of the subject firearm(s) as well as any unique features that may assist in identification. Further, the Crown seeks opinion evidence respecting the prevalence of this type of firearm in the West Region, buttressing its identification argument respecting the nexus between the subject firearm and this defendant.

[18] The Crown argues that this evidence is relevant and necessary to assist me with coming to an identification conclusion. In essence, it is providing me with information relevant to the identification exercise that is beyond the knowledge and experience of this court.

[19] The defence contests the admission of the opinion evidence because it is unnecessary. Its admission is of limited, if any, assistance to this court. The defendant has conceded that the seized firearm is a ‘firearm’ as defined by the Criminal Code and that it is a ‘prohibited’ firearm as defined by Code regulations. The defence further concedes that the apparent drill marks on the seized firearm are obviously in a location where a serial number was located and that I can infer the intention behind the firearm’s defaced markings. The issue for this proffered evidence is not why the firearm was defaced but the connection of it to the defendant.

[20] The defence principal concern is that a comparison determination between the seized firearm and the video depicted firearm is for the court, and not the officer, to make. Having conceded the location of the ‘unique’ markings on the seized firearm, this ought to make unnecessary the officer’s comparison evidence. Therefore, the officer is in no better comparison position than me. And, finally, the officer’s experience respecting the prevalence of this type of firearm in Canada is limited. Realistically, his experience is limited to this province, and more practically this provincial region which significantly limits the probative value of the prevalence related evidence.

Analysis

[21] The Supreme Court in White Burgess Langille Inman v. Abbott and Haliburton Co. laid out a two-step framework when considering the admissibility of expert opinion evidence. The first step requires a threshold assessment as earlier laid out in R. v. Mohan, [1994] 2 SCR 9:

1. logical relevance;
2. necessity to assist the trier of fact;
3. absence of an exclusionary rule; and
4. a properly qualified expert. [1]

[22] When assessing the qualifications of an expert, I must also turn my attention to the expert’s duty to the court as well as the proposed expert’s willingness and capacity to comply with that duty. The basic features of this duty include:

1. impartiality – that the proposed evidence reflects an objective assessment;
2. independence – that the evidence is the product of the expert’s own judgment, that it is not influenced by who has called the expert; and
3. unbiased – the opinion does not unfairly favour one party’s position over another. [2]

[23] The second step for admission assessment relates to the court’s discretionary gatekeeping function. Here, I must “balance the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks.” In effect, I am to conduct a cost benefit analysis by assessing the probative value as against its prejudicial effect, whether the time taken to introduce the evidence is commensurate with its value or whether the potential influence of this evidence is proportionate to its reliability. [3]

[24] I will assess the admissibility of this evidence accordingly.

Its Logical Relevance

[25] Here, relevance must be assessed based upon what remains in issue between the parties. I am left with an identification assessment of a particular firearm, not its classification or type.

[26] The Crown’s comparison evidence is buttressed by apparent unique markings on the subject firearm – apparent drill markings in a particular location obliterating the firearm’s serial number. These drill markings are noted as visible on both the seized and the photographed firearm – arguably linking the two and thereby linking its possession and control to the defendant. Further, the significance of the location of wear these unique markings are located and why is of probative value, there being purpose to obliterating the firearm’s serial number. Finally, the expert offers comment upon the prevalence of this type of firearm in Canada which further makes its nexus to the defendant stronger.

[27] The relevance of this evidence is obvious. A comparison classification of each firearm, seized and depicted, using the type of firearm and unique markings goes beyond mere observation. Relevant features of the firearm, where markings are located and the probable reasoning behind that location, and as well the prevalence of such a weapon in Canada make this evidence naturally and logically relevant to the identification exercise.

Its Necessity to Assist the Trier of Fact

[28] As noted, the necessity of this evidence is the primary point of debate. Can I not simply review the photographed evidence and make a comparison determination myself? Does the proposed expert’s evidence simply usurp my function as trier of fact?

[29] Here, I believe that Sgt. Reinjtes’ evidence is necessary to the evidence comparison exercise. Sgt. Reinjtes’ evidence goes beyond the mere firearm brand and fact of drill markings on the serial number plate itself, but also compares features of the drill or punch marks in the area of the serial number plate which are specific and noteworthy. Without reference and comment upon their features, the potentially unique characteristics of these markings may be lost. Explanations of these markings and their features can provide assistance outside the court’s knowledge on the issue of firearm identification. Further, upon my review of the video clip used for comparison of the firearm, an explanation respecting the mirror image depiction is also necessary.

[30] With classification of this firearm conceded, as well as the fact of serial plate defacement, the identification issue, by way of comparison, is all that truly remains. His conclusion was, in his mind, obvious based upon what was observable between the firearm and the video clip. To that point, Sgt. Reinjtes fairly conceded that anyone can probably sit down and look for/at markings for comparison, but his experience allows him to address wear patterns and particular firearm features. Here, wear patterns were not a feature of his comparison task.

[31] Despite the defence concussions, however, the identified serial plate drill or punch markings, their location, their unique characteristics, how they were removed and, logically, ‘why’ they were removed is all evidence that I cannot simply take notice of. Sgt. Reinjtes has specialized knowledge that can assist the court in navigating why this evidence matters, not the least of which would include where the serial plate would be located on such a firearm and, with the officer’s assistance, how the plate markings are distinguishable.

[32] Further, while it may seem obvious that an attempt to obliterate this firearm’s serial numbers was made, itself a relevant issue, the significance of that on the issue of identification is not clear. As noted, Sgt. Reinjtes’ evidence goes beyond the fact of the serial plate obliteration efforts and to specific characteristics of those markings. It also extends to an opinion upon the prevalence of such firearms in Canada and the resulting likelihood that two such firearms, let alone two with similar unique markings, could independently exist vis-à-vis this investigation.

[33] As the defence is not prepared to concede the comparison, digging deeper than merely the fact of the serial plate obliteration efforts is necessary identification evidence that is not readily apparent without the officer’s expertise.

Absence of Any Exclusionary Rule

[34] Counsel have not identified any exclusionary rule barring admission of this identification evidence. None is apparent to me.

A Properly Qualified Expert

[35] Sgt. Reinjtes is more than qualified to engage in the desired classification and identification exercise relevant to this proceeding. No issue respecting his qualifications was raised, and for good reason.

[36] Having reviewed the training, education and experience of this officer, I am satisfied that he is in a position to provide evidence outside the direct knowledge of this court not only on the issue of classification and use of firearms, but on the issue contested comparison of firearms issue that is live and before me.

[37] However, while I derive some comfort from this officer’s experience as an expert in other proceedings, no independent assessment respecting his awareness of his duty towards the court, the duty of impartiality, independence and a lack of bias, was made during the voir dire. As such, I will reserve that assessment of his qualifications for further direct inquiry should his evidence be deemed otherwise admissible.

Probative Versus Prejudicial Analysis

[38] Finally, the second step of the admissibility analysis must be considered.

[39] I have already outlined the probative value of the proffered evidence on the issue of comparison and, thereby, firearm identification. Sgt. Reinjtes’ evidence goes beyond what I can reasonably derive from an uninformed visual inspection. From a prejudicial impact perspective, the introduction of this evidence will not disproportionately consume court time. The comparison issues identified are strictly defined with the assistance of fashioned visual imagery and would not take an inordinate amount of time to hear. Further, I have the benefit of considering this evidence as part of a judge alone proceeding, one where I can caution myself appropriately respecting the reliability and weight of this evidence as against my independent function as a trier of fact.

[40] However, even on a threshold admissibility basis, I am not persuaded that Sgt. Reinjtes can provide reliable enough evidence respecting the frequency of this firearm in Canada, let alone this region of Ontario. Clearly, he is in a better position to assess the prevalence of such a firearm in Canada than is this court. But he is not, on his evidence, able to provide normative evidence respecting the frequency of this firearm. Instead, he provided an unqualified estimate. He provided nothing more than anecdotal evidence respecting his experience and expectations regarding this firearm and its presence in Canada, not even this region. I was referred to no registry or quantitative accounting of this class of firearm and its frequency in Canada (legally or otherwise) supporting his conclusion or any reference or assessment of the quantum and distribution of this class of firearm internationally. Frankly, on the evidence before this court, Sgt. Reinjtes is in no meaningful position to comment about its frequency outside this region of Ontario, where he acknowledged is his area of experience. How he extrapolated beyond this region remains unclear.

[41] As a result, I am not satisfied that his personal experience is a sufficient marker for admission of the prevalence evidence from a reliability perspective. I am unpersuaded that his proposed Canadian quantum evidence for “likely number[ing] a few dozen at most” is grounded in anything more than anecdotal assessment. I have considered what weight I could attribute to this prevalence evidence proffered and have concluded that it would be so negligible that its admission belies any real probative value. The Crown has, by way of alternative, suggested that the “few dozen at most” reference can be omitted, but the rarity of this class of firearm can still be commented upon. To this, I still question its probative value. How could I meaningfully interpret that evidence on this reliability evidentiary record? To do so would invite mischief into the truth finding process. Therefore, on this evidentiary record, I will not permit the admission of any frequency or prevalence-based evidence respecting this class of firearm as identified. It lacks probative value and an adequate reliability foundation.

Conclusion

[42] As noted, I will complete my assessment of this proffered expert’s qualifications during the trial proper. Scrutiny of his understanding of the proper role of an expert and his duties to the court remain outstanding. I will invite submissions respecting this issue at that time.

[43] In the event that I am satisfied respecting Sgt. Reinjtes’ qualifications as an expert, he will be permitted to provide expert/opinion evidence on the issues of classification, use and comparison of firearms. Specifically, on the issue of firearm comparison and identification, Sgt. Reinjtes will be entitled to opine, for comparison purposes, respecting the physical features present on the seized firearm as against those depicted in the video clip. He will be permitted to comment upon the significance and the location of unique markings on the firearms for comparison and the characteristics of those markings as relevant to the identification issue.

[44] However, Sgt. Reinjtes will not be permitted to opine upon the prevalence of this identified seized firearm in Canada or in the West Region of Ontario.

[45] If any outstanding issues arise respecting this expert evidence, they will be addressed on the trial continuation date. Given the narrow focus of the expert evidence voir dire, the evidence will not be applied to the trial proper but, instead, will be called with the above limitations in mind as part of a complete and narrowed trial evidentiary record.

M. B. Carnegie Released: September 2, 2024

Footnotes:

[1] White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at para 23 [2] Ibid., paras 26-32 [3] Ibid., para 24