R. v. Pope, 2023 NLSC 123

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Pope , 2023 NLSC 123 Date : September 25, 2023 Docket : 201801G5227 HIS MAJESTY THE KING v. CRAIG POPE Restriction on publication : Pursuant to subsection 648(1) of the Criminal Code , no information regarding any portion of the trial at which the jury was not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict. This publication ban expires after the jury retires for deliberation. Before: Justice Glen L.C.

Noel Reasons for Judgment Given Orally Place of Hearing: St. John's, Newfoundland and Labrador Dates of Hearing: September 12, 2023 Date of Oral Judgment: September 26, 2023 Appearances:

Shawn Patten and Kathleen O’Reilly Appearing on behalf of the Crown Mark Gruchy and Kathy Moulton Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Mohan , 1994 SCC 80; White Burgess Langille Inman v. Abbott and Haliburton Co. , 2015 SCC 23 ; R. v. Fleming (April 4, 2017), St. John’s 0116A03822 (N.L. Prov. Ct.); R. v. Pope , 2021 NLCA 47 , aff’d 2022 SCC 8 ; R. v. Newell , 2018 NLSC 81 ; R. v. Newell , 2018 NLSC 94 ; R. v. Wentworth , 2022 ONSC 5319 ; R. v.

Larsen , 2001 BCSC 524 , aff’d 2003 BCCA 18 REASONS FOR JUDGMENT Noel J: INTRODUCTION [ 1 ] This is my decision on the Crown’s Pre-trial Application for an order on expert evidence seeking two grounds of relief: 1. To have Sergeant Crocker qualified as an expert in Fingerprint Analysis, specifically the retrieval, examination and identification and comparison of fingerprint and palm print evidence; and 2. To permit Sgt. Crocker to speak to the report of retired Sgt.

Simms who is unavailable to testify at trial due to the impact on his mental health, and whose report she peer reviewed (the “Simms Report”). the law Issue 1 – Qualification of Sergeant Crocker [ 2 ] The Crown’s Brief sets out the applicable governing authorities. [ 3 ] The four criteria from R. v. Mohan , 1994 SCC 80, to establish whether expert evidence is admissible are: 1. Relevance; 2. Necessity in assisting the trier of fact; 3. The absence of any exclusionary rule; and 4. A properly qualified expert . [ 4 ] In White Burgess Langille Inman v.

Abbott and Haliburton Co. , 2015 SCC 23 , the SCC divided the qualification of expert opinion evidence into a two-step inquiry: a. At the first step, the Crown, as the proponent of the evidence, must establish the threshold requirements of admissibility, which are the four stated Mohan factors. b. At the second discretionary gatekeeping step, I must balance the potential risks and benefits of admitting the evidence to decide whether the potential benefits justify the risks.

This is often referred to as the probative value versus prejudicial effect of the evidence. [ 5 ] White Burgess also provides that an expert should attest to their duty to be fair, objective and nonpartisan. I am satisfied Sgt. Crocker so testified and is fully appreciative of her duty to give her independent opinion without showing bias or favour to either party. [ 6 ] I am also satisfied fingerprint and palm print evidence has been accepted and relied upon in Canadian courts for decades. Defence Position [ 7 ] The Defence makes no contention that it is novel science.

The Crown is not required to establish the reliability of the underlying science, as it would if it were novel or contested science. [ 8 ] The Defence, however, sought and was entitled to have the standard voir dire on Sgt. Crocker’s qualifications as an expert and thoroughly explore the expertise of the witness to detect any potential weaknesses in the purported expertise. The Threshold Criteria

[ 9 ] Relevance at this threshold stage refers to logical relevance, and I find the evidence is relevant for the purposes of establishing the identification of Mr. Pope. [ 10 ] The Crown purports to use the print analysis to connect the Accused to the vehicle associated with the event that led to the second-degree murder charge. The prints will be used to place Mr. Pope at the scene of the stabbing. Mr. Gruchy for the Defence accepts it is relevant for this purpose, but objects on the basis it is not needed to establish identity because it can be done so through other means and witnesses.

That does not diminish or take away from its relevance. [ 11 ] I accept the evidence is necessary to assist the trier of fact, as it is outside the knowledge of a lay person without specific training and experience. [ 12 ] The third threshold criteria of the absence of any exclusionary rule is met. [ 13 ] The evidence of Sgt. Crocker, including her Curriculum Vitae , establishes that she is a properly qualified expert.

She has had extensive education and experience as a forensic specialist and has been certified as a Fingerprint Analyst since 2011 and federally designated under s. 667(5) of the Criminal Code as a Fingerprint Examiner in 2014. [ 14 ] She has previously been qualified as an expert in fingerprint and palm impressions in R. v. Fleming (April 4, 2017), St. John’s RNC File #2016-54459 (N.L. Prov. Ct.); and R . v. Fleming (April 4, 2017), St. John’s 0116A03822 (N.L. Prov. Ct.) [ Unreported Decisions ].

She performs about 50 peer reviews of fingerprint analysis each year in her capacity as supervisor of the Royal Newfoundland Constabulary Forensic Identification Unit. [ 15 ] I find the Crown has established the four threshold criteria and exercise my discretion to qualify Sgt. Crocker to give expert opinion evidence in fingerprint analysis, including the retrieval, examination and identification, and comparison of fingerprint and palm print evidence. [ 16 ] I also accept finger/palm print analysis is probative evidence to assist the Crown in proving identity.

There is no prejudice to the Accused in permitting Sgt. Crocker to testify as to her own involvement in the investigation. Issue 2 – Permitting Sergeant Crocker to speak to the Simms Report [ 17 ] I turn now to the second and more vigorously contested issue of whether Sgt. Crocker will be permitted to speak to the Simms Report. At Mr. Pope’s first jury trial, ( R. v. Pope , 2021 NLCA 47 , aff’d 2022 SCC 8 ), Simms was qualified as an expert in fingerprint analysis and the Friction Ridge Analysis Report was entered into evidence.

He testified at the trial and was cross-examined by defence counsel. [ 18 ] The Crown led evidence at the voir dire hearing that Simms is no longer able to testify at the upcoming trial commencing on 14 November 2023 because of ongoing medical concerns. [ 19 ] Simms was referred to Ms. Coleman, a Trauma Therapist in April 2021 for trauma and mental health counselling. Ms. Coleman has a Masters in Social Work and is a Registered Social Worker at Resilience Mental Health & Trauma Treatment Services in St. John’s. [ 20 ] Ms.

Coleman testified as to her involvement in the treatment of Simms and spoke to her report dated 14 August 2023. [ 21 ] I am satisfied that Simms is unavailable to testify in this case. I accept Ms. Coleman’s evidence that testifying would cause a detrimental impact to his mental health. [ 22 ] The Crown is seeking to have the Simms Report entered through Sgt. Crocker under the principled exception to the hearsay evidence rule because the report meets both the necessity and reliability threshold.

The necessity requirement is met given my determination that Simms cannot testify because of his medical condition. [ 23 ] The threshold reliability assessment is also met. Sgt. Crocker was involved in the investigation from its beginning. She examined the scene and the vehicle, a taxicab that Mr. Pope is alleged to have been a passenger travelling from the scene of the stabbing. Sgt. Crocker and Simms took fingerprint and palm print impressions together. Sgt. Crocker also peer reviewed Simms’ fingerprint analysis. [ 24 ] In both R. v. Newell , 2018 NLSC 81 , and R. v.

Newell , 2018 NLSC 94 , Justices Khaladkar and Faour of this Court, respectively, permitted an expert who peer reviewed the report of another DNA expert to testify as to the findings in the original report under the principled exception to the hearsay rule. [ 25 ] Sgt. Crocker’s extensive involvement in the file including the retrieval, examination and identification of the prints herself, and subsequent independent blind verification of Simms’ conclusion combine to satisfy the indicia of threshold reliability.

Defence Position [ 26 ] The Defence acknowledges there is a distinction between threshold and ultimate reliability. The Defence fairly concedes one would expect a forensic report made in good faith to have sufficient threshold reliability to be considered reliable to meet this portion of the test. [ 27 ] However, the Defence submits I must also consider prior to admitting evidence in this fashion: whether the probative value of the evidence is outweighed by its prejudicial effect on trial fairness. The Court always retains a residual discretion to exclude evidence on this basis. The Defence relies on R. v.

Wentworth , 2022 ONSC 5319 , and R. v. Larsen , 2001 BCSC 524 , aff’d 2003 BCCA 18 . [ 28 ] Mr. Gruchy points out that a critical component of Simms’ analysis engages the concept of “tolerance” in assessing prints.

Tolerance, as defined in the Simms Report, is the level of ambiguity an examiner accepts in the physical representation of a print based on observable attributes of the print and the context in which it is found, including issues such as smearing, print overlay etc. A clear finger/palm print allows for low tolerance, while unclear areas for a higher level of tolerance. Tolerance is therefore subjective but based on objective observations made throughout the analysis. [ 29 ] Simms in his report also acknowledged the comparison process involves documenting “short examples.” Sgt.

Crocker explained in her evidence the report would become unduly long without adding anything to the analysis to document every single component involved in the complete comparison process. [ 30 ] The Defence submits both the subjective perspective of the examiner and the undocumented components of the reasoning involved makes finger/palm print analysis distinct from hard scientific practice with clear, objective methods that can be readily and consistently replicated in strict fashion by another professional.

The Defence suggests the process of print analysis is one on which reasonable people can disagree. [ 31 ] The Defence further submits the palm print analysis is only part of the identification evidence the Crown purports to lead. It is anticipated the Crown will lead eyewitness evidence placing Mr. Pope at the scene. The Crown is also intending on leading DNA evidence they will assert places Mr. Pope in the taxicab as well as in contact with the deceased victim, David Collins. [ 32 ] Mr. Gruchy argues the probative value of the Simms Report is questionable in light of the rest of the Crown’s anticipated evidence.

The Crown, it is submitted, can establish the issue of identity through other means. [ 33 ] Further, Mr. Gruchy contends the Simms Report is not needed in this trial at all because Sgt. Crocker was an equally involved officer in the investigation and can prepare and produce her own report and testify to her own conclusions.

Thus, the Defence asserts I should exclude the Simms Report, since its inclusion would have a prejudicial effect that outweighs its probative value. [ 34 ] The prejudice the Defence specifically points to is the inability to cross-examine Simms on his subjective determination on why the palm print in question warranted a “high tolerance” without the ability to question and test the subjective thinking that went into his conclusions. The trier of fact will have the untested opinion of Simms and the same conclusion arrived at by Sgt. Crocker. This gives the Crown an unfair advantage at trial, the Defence argues.

My Ruling [ 35 ] I do not accept the Defence position that the prejudicial effect of the Simms Report outweighs its probative value. [ 36 ] The case law the Defence cites in support of its position is distinguishable on the facts. [ 37 ] In Wentworth , the court did not admit the report of an elderly forensic pathologist who was unable to testify at trial. The testifying forensic pathologists could not explain the report-writing pathologist’s conclusion, as they did not have access to pertinent records. No such concern arises with the Simms Report in this case. Sgt. Crocker and Sgt.

Simms viewed and examined the same prints. [ 38 ] Even in Wentworth , the court found the evidence was both necessary and reliable, but excluded it on the basis it would be prejudicial. [ 39 ] Larsen is a similar case where a deceased pathologist’s reports were found to be admissible. The Court of Appeal in Larsen , at paragraph 35, addressed the argument that the reports should have been excluded as an exercise of the trial judge’s residual discretion, since the absence of the opportunity to cross-examine the pathologist rendered the trial unfair.

The court found that there was nothing in the reports or in the circumstances in which they were prepared that would cast doubt on the reliability of the pathologist’s recorded observations and assessments, or that he would not have been a credible witness. [ 40 ] As in Larsen , I am of the view that the admission of the Simms Report through Sgt. Crocker without cross-examination of Simms would cause minimal prejudice (if any at all) and no prejudice to the integrity of the trial process. [ 41 ] I will permit the Crown to enter the Simms Report through the viva voce evidence at trial of Sgt.

Crocker. [ 42 ] The Defence will have the opportunity at trial to cross-examine and explore fully with Sgt. Crocker the subjective elements that went into her analysis. This is a threshold reliability ruling only. The ultimate reliability and weighing of the Simms Report is for the trier of fact to determine in the context of hearing from Sgt. Crocker and the totality of the evidence presented at trial. conclusion and disposition [ 43 ] For the foregoing reason, I qualify Sgt. Crocker as an expert in Fingerprint Analysis for the specific purposes identified, and permit Sgt.

Crocker to speak to the Simms Report. [ 44 ] I grant the relief the Crown seeks in this application and order accordingly. ______________________________ GLEN L.C. NOEL

Justice