R. v. Nippak, 2026 ONSC 1240

Court File and Parties

CITATION: R. v. Nippak, 2026 ONSC 1240

COURT FILE NO.: CR-24-90000280-0000

DATE: 20260302

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

Applicant

• and -

KRISTOFFER NIPPAK

Respondent

Counsel:

Amber Pashuk, Christopher Walsh and Diana Lumba, for the Applicant Crown

Carlos Rippell and Bronagh Ryan, for the Respondent Mr. Nippak

HEARD: October 20, 2025, and December 11, 2025

M. FORESTELL J.

Ruling on the Proposed Opinion Evidence of Ian Haya

Overview

1Kristoffer Nippak is charged with knowingly participating in or contributing to an activity of a terrorist group, namely, the Atomwaffen Division (“AWD”), by participating in the filming or production of videos or other images.

2One of the videos that is the subject of the charge was uploaded to the Telegram channel called “Terrorwave Refined” in October 2019. It is entitled “Fission: A Reckoning of Modernity”. It is a four-minute, 46-second video showing eight armed men wearing white skull masks and AWD patches. It promotes AWD ideology and solicits recruits. It is alleged that Mr. Nippak is one of the masked men in the video. The men are dressed in camouflage pants and jackets.

3When the police executed a search warrant at the home of Mr. Nippak, they located and seized camouflage clothing that the Crown alleges matches the clothing worn by one of the men in the video.

4Ian Haya, a civilian member of the Royal Canadian Mounted Police (“RCMP”), conducted an analysis and comparison of the seized clothing and photographs of the seized clothing with images from the subject video.

5He produced a report that juxtaposes images of portions of the seized clothing with images of clothing taken from the video. Mr. Haya then marked, by means of arrows and numbers, points of ‘consistency’ in the pattern of the camouflage gear in the video and the clothing seized in the residence of Mr. Nippak. He identifies in a series of charts, numerous points of consistency based on size, shape, relative colour and relative position. Mr. Haya also expressed the opinion that because of the “degree of the similarities and the typicality of the observed features, the overall combination of multiple different features seen provide strong support for the viewpoint that the observed unknown jacket [the jacket in the video] and the submitted jacket [the jacket from Mr. Nippak’s home] are the same”. He reached the same conclusion on the same basis with respect to the camouflage pants.

6The Crown does not seek to introduce Mr. Haya’s ultimate conclusion, that the items are the same, but does seek to introduce the analysis and comparison of the items, including the opinion of Mr. Haya on the points of consistency.

7The Crown seeks to qualify Mr. Ian Haya as an expert in the following areas:

1. The forensic analysis of audio and video recordings, techniques and principles of audio and video processing and editing, interpretation of the raw data of audio and video files, video file structure, and metadata analysis; and

2. The forensic comparison of videos, images and objects, including clothing.

8Mr. Nippak takes no issue with the admissibility of the evidence of Mr. Haya in the area of forensic analysis of audio and video recordings. He submits, however, that the video comparison evidence is inadmissible.

Evidence

9Mr. Haya testified on the voir dire and his curriculum vitae and reports were filed.

10Mr. Haya has been a civilian member of the RCMP since 2012. He is assigned to the audio and video analysis unit as an analyst. His duties are described as including forensic analysis of audio and video recordings, including enhancements; image/video comparisons; authentication; voice comparisons; research in techniques; and principles of audio and video processing. He has a Bachelor of Science degree and a Master of Science degree, in electrical engineering.

11Mr. Haya has had regular ongoing training in Forensic Video Analysis. The only formal training that he received that was directed specifically at video and image comparison was a 40-hour course in 2014. The topics covered in that course were, “Understanding consistencies and inconsistencies, class and unique characteristics, standard operating procedures, preparing evidence for court, comparison charts, identifying clothing, examination of video evidence and effective court presentations.”

12In his testimony, Mr. Haya explained that the course was focused on using video to compare and identify clothing. This included identifying class characteristics such as length, sleeve length, pockets and collars, and also identifying and analyzing patterns and colours. He described learning about the manufacture of clothing and how that process can introduce distinguishing characteristics on an item of clothing. He testified that when cuts are made in patterned cloth and the edges sewn together, the points at which the pattern meet and align will produce points of discrimination. The training in the 2014 course included a discussion of camouflage pattern.

13The portion of the course that addressed clothing manufacture and construction of clothing was about one day.

14Mr. Haya also testified that other training in video analysis commonly included the identification of clothing. He gave the example of tracking an individual across multiple cameras based in part on the clothing worn by the individual. His training in facial recognition involved image comparison.

15Mr. Haya’s experience in his work as an analyst with the RCMP included working on 157 cases of video analysis. He estimated that about one-fifth to one-third of the cases included an aspect of clothing comparison. Most commonly, this involved extracting a suspect from a video and describing their appearance. Next most common would be tracking a suspect across multiple cameras. Some of the cases involved comparing known clothing to clothing in a video.

16Mr. Haya described one previous case that involved the description of camouflage clothing in a video.

17Mr. Haya testified that he was unaware of any scientific articles on forensic analysis of camouflage clothing. He consulted Wikipedia for the purpose of his analysis in this case.

18When questioned about comparisons of known clothing and images, Mr. Haya agreed that one would not need expertise to compare class characteristics, but that a person would require expertise to examine the video evidence and understand concepts such as compression and artefacts and other factors that can affect how an object is viewed within a digital video.

19Mr. Haya was questioned about confirmation bias. He agreed that he was given known clothing and asked to compare it to images of an unknown individual. He testified that he limited confirmation bias by looking at the images objectively.

20Mr. Haya was asked if he saw any dissimilarities between the known clothing and the images. He responded that there were none that he was “confident in”. He then corrected himself and said that he did not see dissimilarities but only areas that had insufficient detail.

21Later in his testimony, Mr. Haya agreed that he saw inconsistencies, but was able to explain them because of ‘perspective, pose, creases or folds’. He did not mark or note those inconsistencies.

22Mr. Haya testified that in his field of video image comparison, there are other experts who testify in court about comparison of known objects with objects on video, but he was unable to name any such experts.

Legal Principles

General Framework

23Expert opinion evidence is presumptively inadmissible. The party proffering the evidence must establish its admissibility on a balance of probabilities.

24As Justice Doherty directed in R. v. Abbey, 2009 ONCA 624, at para. 62 (“Abbey (2009)”), the first step in the admissibility inquiry is to delineate the nature and scope of the proposed expert evidence. In this case, the disputed evidence may be summarized as follows:

• The opinion of Mr. Haya that there are specific areas of ‘consistency’ as between a camouflage jacket and camouflage pants found in the residence of Mr. Nippak and the camouflage jacket and pants worn by an individual in the video that is the subject of the charges.

• The opinion of Mr. Haya is that camouflage patterns on clothing are typically larger with low repeatability and therefore have high discriminability.

25Once the area of opinion evidence is delineated, each area must be analyzed in accordance with the framework described by Laskin J.A., in R. v. Abbey, 2017 ONCA 640, at para 48:

Expert evidence is admissible when:

(1) It meets the threshold requirements of admissibility which are:

a. The evidence must be logically relevant;

b. The evidence must be necessary to assist the trier of fact;

c. The evidence must not be subject to any other exclusionary rule; and

d. The expert must be properly qualified, which includes the requirement that the expert be willing and able to fulfill the expert’s duty to the court to provide evidence that is:

i. Impartial

ii. Independent, and

iii. Unbiased.

e. For opinions based on novel or contested science or science used for a novel purpose, the underlying science must be reliable for that purpose.

And

2. The trial judge, in a gatekeeper role, determines that the benefits of admitting the evidence outweigh is potential risks, considering such factors as:

a. Legal relevance,

b. Necessity,

c. Reliability, and

d. Absence of bias.

[Citations and footnotes omitted]

26In this case, Mr. Nippak submits that: (i) the evidence is not necessary to assist the trier of fact; (ii) the expert is not properly qualified; and (iii) the science is novel and unreliable. There is no issue that the proposed evidence is logically relevant and not subject to any exclusionary rule.

The Threshold Stage

Necessity

27In R. v. D.(D.), 2000 SCC 43, at para. 47, the Supreme Court of Canada explained that necessity does not mean mere helpfulness. The majority adopted the statement of John Sopinka, Sidney N. Lederman, and Alan W. Bryant in The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999), at p. 620, that “expert evidence must be necessary in order to allow the fact finder: (1) to appreciate the facts due to their technical nature, or; (2) to form a correct judgment on a matter if ordinary persons are unlikely to do so without the assistance of persons with special knowledge”.

Duly Qualified Expert

28The requirement that the evidence be given by a duly qualified expert has several components. The first is that the witness must be shown to have acquired special or peculiar knowledge through study or experience in respect of the matters upon which the witness will opine. This basic component, set out in Mohan,¹ is not an onerous requirement, but it should not be overlooked (see Mohan, at para. 27). The Goudge Inquiry emphasized the need for courts to clearly articulate the area of competence and to evaluate the quality of the training.

29Professor Paciocco, as he then was, in a 2009 article² analyzing the Report of the Inquiry into Pediatric Forensic Pathology in Ontario (the “Goudge Report”),³ explained the “evidence based approach” to the evaluation of the expertise of a proposed witness advocated by the Goudge Report. In the article, Prof. Paciocco discusses the movement from a “trust me” approach to expert evidence to an evidence based, “show me” approach:

The Goudge Report demonstrates the most basic safeguards — things such as the clear articulation of the expert's competence, and the need to appreciate the quality of expert training — but its most profound contribution is in the central place it gives to the ‘evidence based approach’ to expert evidence. The Mohan test has long insisted on an evidence based approach, but the Goudge Report now shows how best to achieve it, describing as it does, the four predicate conditions for practicing a ‘show me’ strategy for ensuring the integrity of expert evidence:

(1) the theory or technique used by the expert must be reliable, and so too must the use of that theory or technique by the expert;

(2) the expert must not be biased;

(3) the expert must be objective and complete in collecting evidence, must reject all information that is not germane to the theory or technique being used, and must be transparent about all information and influences they have been exposed to; and

(4) the expert must clearly express not only the opinion, but also the complete reasoning process that led to it, and must be candid about the shortcomings of the theory or technique employed and the opinion reached, offering fair guidance on the level of confidence that can be placed in the opinion expressed.

30In the Goudge Report, the Commissioner recommended written reports that explicitly set out the reasoning process of the expert in order to disclose gaps in reasoning or incorrect assumptions in advance of trial. The Report points out that such a process would, as well, “assist in avoiding ‘confirmation bias’ – the situation that occurs when anyone, including pathologists and the police, tends to seek out evidence to support or confirm an investigative theory or an expert opinion and excludes other theories or possible opinions. Confirmation bias is closely related to tunnel vision which has been defined as ‘the single-minded and overly narrow focus on a particular investigative or prosecutorial theory, so as to unreasonably colour the evaluation of information received and one’s conduct in relation to that information.’”

Novel Science/Reliability

31The Supreme Court of Canada, in White Burgess Langille Inman v. Abbot and Haliburton Co., 2015 SCC 23, [2015] 2 SCR 182, held that when proposed expert evidence is novel or contested scientific evidence, the party proffering the evidence must establish the reliability of the scientific methodology. The factors generally relied upon to assess scientific reliability are the factors from the leading U.S. case of Daubert v. Merrell Dow Pharmaceuticals Inc., 125 L/Ed.2d 469: (i) whether and how the science was tested; (ii) the error rate associated with the science; (iii) whether and how the science has been peer reviewed and published, and (iv) whether the science has reached general acceptance in the scientific community. However, as the Court of Appeal held in Abbey (2009), not all expert opinion evidence must be tested against the Daubert factors.

32In Abbey (2009), Doherty J.A. clarified that all expert opinion evidence must demonstrate a sufficient level of reliability to warrant its admissibility, but a flexible approach to the determination of reliability is essential. Not all Daubert factors will apply to all forms of expert opinion evidence. In Abbey (2009), the Court held that the proffered evidence was not scientific and was not novel. The Daubert factors did not apply. Instead, a non-exhaustive list of factors was suggested as relevant to the reliability inquiry:

• To what extent is the field in which the opinion is offered a recognized discipline, profession or area of specialized training?

• To what extent is the work within that field subject to quality assurance measures and appropriate independent review by others in the field?

• What are the particular expert's qualifications within that discipline, profession or area of specialized training?

• To the extent that the opinion rests on data accumulated through various means such as interviews, is the data accurately recorded, stored and available?

• To what extent are the reasoning processes underlying the opinion and the methods used to gather the relevant information clearly explained by the witness and susceptible to critical examination by a jury?

• To what extent has the expert arrived at his or her opinion using methodologies accepted by those working in the particular field in which the opinion is advanced?

• To what extent do the accepted methodologies promote and enhance the reliability of the information gathered and relied on by the expert? (Abbey (2009), at para. 119)

The Second Stage – Gatekeeping

33The second stage of the admissibility analysis requires that I balance the potential risks and benefits of admitting the evidence to decide whether the potential benefits justify the risks. This inquiry is equally case-specific. It involves the exercise of judicial discretion, not the application of a bright line rule.⁴

34This exercise, described by Binnie J., in R. v. J.-L.J., involves “a cost-benefit analysis to determine ‘whether its value is worth what it costs’ in terms of its impact on the trial process. Thus, the criteria for reception are relevance, reliability and necessity measured against the counterweights of consumption of time, prejudice and confusion”.⁵

35As articulated by Watt J.A., in R. v. Shafia:

232 The benefit side of this cost-benefit analysis requires a consideration of the probative potential of the evidence, as well as the significance of the issue to which the evidence is directed. Determination of the probative potential of the evidence of necessity requires a consideration of the reliability of the evidence, but not to such an extent as to intrude upon the jury's task in assessing ultimate reliability: Abbey, at paras. 87-89. The independence of the expert and his or her impartiality are also factors: White Burgess, at para. 54. Opinion evidence essential to a jury's ability to understand and evaluate material evidence registers high on the ‘benefit’ scale: Abbey, at para. 94.

233 The ‘cost’ side of the analysis examines the risks inherent in the introduction of expert opinion evidence. Consumption of time. Prejudice. Confusion. Danger that jurors will be unable to make an effective and critical assessment of the evidence. The complexity of the materials. The impenetrable jargon in which the opinion is clothed. Compromise of the trial process by unduly protracting and complicating proceedings: see, Abbey, at paras. 90-92; White Burgess, at para. 54.

234 The product of the judge's cost-benefit analysis of expert opinion evidence tendered for admission — the admissibility decision — is entitled to deference on appellate review, at least in the absence of an error in principle or an unreasonable conclusion: D. (D.), at para. 13; Abbey, at para. 97; R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581 (S.C.C.), at para. 31.

36In White Burgess, the Supreme Court of Canada explained the second stage analysis as follows, at para. 54:

Finding that expert evidence meets the basic threshold does not end the inquiry. Consistent with the structure of the analysis developed following Mohan which I have discussed earlier, the judge must still take concerns about the expert's independence and impartiality into account in weighing the evidence at the gatekeeping stage. At this point, relevance, necessity, reliability and absence of bias can helpfully be seen as part of a sliding scale where a basic level must first be achieved in order to meet the admissibility threshold and thereafter continue to play a role in weighing the overall competing considerations in admitting the evidence. At the end of the day, the judge must be satisfied that the potential helpfulness of the evidence is not outweighed by the risk of the dangers materializing that are associated with expert evidence.

Application of the Principles

1. The opinion of Mr. Haya, that there are specific areas of ‘consistency’ as between a camouflage jacket and camouflage pants found in the residence of Mr. Nippak and the camouflage jacket and pants worn by an individual in the video that is the subject of the charges.

37I am not satisfied that the comparison evidence is necessary. As the trier of fact, I can compare the images and the relevant objects. The evidence of Mr. Haya comparing the clothing and the images, while arguably ‘helpful’, does not go beyond helpfulness. The comparison of the clothing and the images does not require special skills or technical knowledge.

38The evidence that is proffered simply points out similarities – and notably does not point out any dissimilarities. It is not necessary to have an expert for this purpose.

39While this finding effectively disposes of the issue of admissibility of the comparison evidence, I should also indicate that I have concerns about the qualification of Mr. Haya in this area. He could not point to peer reviewed materials or recognized methodologies. The approach taken by Mr. Haya in only identifying similarities and not differences, also raises concerns about confirmation bias.

40It is also unnecessary for me to address the argument of Mr. Nippak, that the comparison evidence is ‘novel or contested scientific evidence’ and does not meet the test in White Burgess analysis or that it fails the less stringent Abbey ‘reliability’ requirement. However, for similar reasons—the absence of peer reviewed authorities, objective data, clear methodologies—the evidence, in my view, falls short on the Abbey reliability analysis.

41Even if the comparison evidence could have passed the threshold stage of the analysis, the helpfulness, if any, of the evidence is far outweighed by the costs. Although this is a judge alone trial and the risks of confusion and prejudice is attenuated, the admission of this evidence would complicate and protract the proceedings with little, if any benefit.

2. The opinion of Mr. Haya, that camouflage patterns on clothing are typically larger with low repeatability and therefore have high discriminability.

42The second area of proposed expert evidence passes the threshold necessity requirement.

43I am not satisfied however that Mr. Haya is duly qualified to opine on the camouflage patterns and their ‘repeatability and discriminability’. Effectively, Mr. Haya had one day of training on clothing manufacturing 11 years ago. The training is limited and dated. It does not pass the threshold test for qualification. Mr. Haya did not, with the one day of training, “acquire special or peculiar knowledge through study or experience” sufficient to pass the admittedly low threshold.

44Even if the very limited training provided to Mr. Haya was sufficient to pass the threshold, I would have excluded the evidence based on the analysis of the probative value and potential prejudicial effect of the evidence in this area. The potential helpfulness of the evidence is minimal, and the risks associated with it are significant.

Conclusion

45Mr. Haya may give evidence regarding the forensic analysis of audio and video recordings, techniques and principles of audio and video processing and editing, interpretation of the raw data of audio and video files, video file structure and metadata analysis. He may not give opinion evidence on the comparison of videos, images and objects, including clothing. The side-by-side images may be presented but the images with the lines indicating points of similarity should be redacted.

M. Forestell J.

Footnotes

1. 1R. v. Mohan, [1994] 2 SCR 9
2. 2David Paciocco, "Taking a 'Goudge' out of Bluster and Blarney: an 'Evidence-Based Approach' to Expert Testimony" (June 2009) 13 Can. Crim. L.R. 135
3. 3The Honourable Stephen T. Goudge, “Inquiry into Pediatric Forensic Pathology in Ontario, Report” (Toronto: Ontario Ministry of the Attorney General, 2008)
4. 4R. v. Shafia, supra, at para 231
5. 5R. v. J.-L.J., 2000 SCC 51, at para. 47, citing Mohan, at p. 21; R. J. Delisle, "The Admissibility of Expert Evidence: A New Caution Based on General Principles" (1994), 29 C.R. (4th) 267