



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Campbell, 2018 ONCA 205

DATE: 20180302

DOCKET: C56497

Feldman, Paciocco and Fairburn JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Norman Campbell

Appellant

Ariel Herscovitch, for the appellant

Andrew Cappell, for the respondent

Heard: February 7, 2018

On appeal from the conviction
    entered on June 19, 2012, by Justice Nancy L. Backhouse of the Superior Court
    of Justice, sitting without a jury.

Fairburn J.A.
:

OVERVIEW

[1]

During the execution of a search warrant at a boarding house, the police
    located a shotgun secreted in the ceiling of the basement apartment where the
    appellant lived. They found a plastic bag containing shotgun shells above the
    kitchen ceiling. A partial palm print was found on the plastic bag.

[2]

The Crown called expert evidence suggesting that the palm print on the
    bag came from the same source as the appellants known print. Not entirely
    satisfied with the first experts testimony, the Crown brought an application
    to recall a witness who had previously testified in the trial, but on another
    topic. This witness also had experience in friction ridge analysis and, in
    fact, had been the person who had provided the expert opinion evidence on this
    issue at the preliminary inquiry. Over the objections of the defence, the Crown
    was permitted to recall the witness. He was declared an expert and, like the
    first expert, provided the opinion that the print on the bag was from the same
    source as the appellants known print.

[3]

The appellant was convicted of ten counts relating to the possession of
    a prohibited firearm and ammunition. He maintains that the trial judge erred
    by:

a.

allowing the
    Crown to recall the witness; and

b.

misapprehending
    the expert opinion evidence, giving rise to an unreasonable verdict and
    miscarriage of justice.

[4]

For the reasons that follow, I would dismiss the appeal.

GENERAL FACTS

[5]

The case against the appellant arose from seizures made during the
    execution of a search warrant in July 2006. Robert Rigole was the forensic
    identification officer at the search scene. By the time of trial, Mr. Rigole
    had left the police service. Mr. Rigole testified about a number of items that
    were seized from the basement apartment where the appellant was said to live,
    including:

(a) an
    unloaded 20 ½ inch sawed-off shotgun in the ceiling tiles above the bedroom;

(b) a
    live 12 gauge shotgun shell (compatible with the shotgun found in the ceiling)
    inside a canvas bag behind a dresser, next to which was a bag with court
    documents bearing the appellants name; and

(c) a
    23 inch machete under the mattress of the bed.

[6]

Inside the basement washroom was a safe containing $1,900. In the
    ceiling tiles over the basement kitchen was a white plastic bag, containing a
    total of eleven shotgun shells. The palm print forming the subject of this
    appeal was found on this bag.

[7]

The basement apartment was a self-contained unit with a locked door
    leading down to it. There was a significant amount of evidence connecting the
    appellant to the basement apartment. In the context of an unrelated
    investigation in mid-July 2006, the appellant told the police that he had been
    living in the apartment for about a month. The rental agreement stipulated that
    he was the only one who could live there. The landlord testified that the
    dresser (behind which the bag containing a shotgun shell was found), was not
    present in the basement unit when the previous tenant moved out.

EXPERT EVIDENCE

[8]

Mr. Rigole did the original comparison work between the partial palm
    print found on the plastic bag and the appellants known print. He authored a
    friction ridge analysis report on December 7, 2007. He also testified as an
    expert in friction ridge analysis at the preliminary inquiry. He was of the
    opinion that the print on the bag and the appellants known palm print were
    from the same source.

[9]

For reasons unrelated to this appeal, a long time
    passed between the preliminary inquiry and trial.
During this time, Mr.
    Rigoles friction ridge analysis report went missing. As Mr. Rigole had left
    the Toronto Police Service years before the trial, a new officer with expertise
    in friction ridge analysis was assigned to conduct a fresh analysis and author
    a new report.

[10]

Although
    the new officers findings varied in some respects from Mr. Rigoles, she came
    to the same ultimate conclusion that the impression on the bag originated from
    the same source as the appellants known palm print. She also testified about
    what she believed to be distortions in the palm print on the bag caused by the
    fact that the substrate material was wrinkled and creased. She explained that
    the distortions also could have been created by the manner in which the bag had
    been held, including the amount of pressure applied to the surface of the bag.

[11]

The
    officer agreed under cross-examination that what she believed to be distortions
    caused by how the print was left on the plastic bag surface, could very well
    be interpreted by another analyst as an actual dissimilarity between the print
    on the bag and the appellants known print. In re-examination, though, she
    remained firm in her opinion that the prints came from the same source.

[12]

Not
    surprisingly, the Crown was not entirely satisfied with the officers
    testimony, evidence that could be described as confusing at best. Accordingly,
    he sought to recall Mr. Rigole, whose friction ridge analysis report from 2007
    had by then been located. Over the objection of the defence, Mr. Rigole was
    permitted to take the stand again so that he could give opinion evidence about
    the source of the palm print. His testimony was consistent with his original
    report and evidence at the preliminary inquiry. His friction ridge analysis
    evidence will be reviewed later in these reasons.

RECALLING THE WITNESS

[13]

In
    permitting the Crown to recall Mr. Rigole, the trial judge focussed on the fact
    that: (a) the Crown had not yet closed its case; (b) Mr. Rigoles report had
    been disclosed years earlier; and (c) the defence suffered no prejudice.

[14]

The
    appellant maintains that the trial judge erred in allowing the Crown to recall
    Mr. Rigole. He argues that the defence had put all his cards on the table
    when he cross-examined the first expert and, as a result, it was unfair to
    permit the Crown to call another witness to testify on the same topic. In
    essence, the appellant maintains that the Crown should not have been permitted
    to undo the damage done to its case by the first officer who gave expert
    friction ridge analysis evidence.

[15]

Before
    the Crown has closed its case, a trial judge has a broad discretion to permit
    the recall of a witness, a discretion that must be exercised judicially and in
    the interests of justice. This discretion narrows as the trial proceeds through
    its various stages:
R. v. G.(S.G.),
[1997] 2 S.C.R. 716, at paras.
    29-30.

[16]

Different
    factors may be taken into account when considering whether to permit a witness
    to be recalled. Of course, as with all witnesses, the evidence to be called
    must be material to a live issue. In exercising her discretion, the trial judge
    will also have regard to the need for an orderly trial and any prejudice that
    may flow to the accused as a result of recalling the witness. Before the Crown
    closes its case, prejudice can typically be addressed through an adjournment,
    cross-examination of the re-called witness and other Crown witnesses and/or a
    review by the trial judge of the record in order to determine whether certain
    portions should be struck:
R. v. P.(M.B.),
[1994] 1 S.C.R. 555, at
    para. 22.

[17]

The
    request to recall the witness in this case was made at the earliest stage
    possible, before the Crown had closed its case, when the trial judge enjoyed considerable
    latitude in exercisingher discretion:
P.(M.B.),
at para. 22. The
    trial judge exercised her discretion with regard to the relevant factors,
    including her assessment that the appellant would not be prejudiced by Mr.
    Rigoles additional testimony. I see no error in the trial judges assessment
    about the absence of prejudice.

[18]

Mr.
    Rigoles expert report and curriculum vitae was disclosed over four years
    before trial. Expert witness notice had been given at that time. The defence
    had already had an opportunity to cross-examine him on his expert evidence at
    the preliminary inquiry. There is no suggestion that his evidence varied from
    what he testified to previously. In addition, Mr. Rigole held the same ultimate
    opinion as the first expert who testified at trial. All of these factors point
    away from prejudice.

[19]

Moreover,
    prejudice should not be measured by the incriminating value of evidence, but by
    trial fairness. Just because evidence might operate unfortunately for an
    accused, does not mean that it operates unfairly. It is important not to
    conflate these ideas.

[20]

There
    was nothing about Mr. Rigoles expert evidence that compromised the appellants
    entitlement to a fair trial or undermined his right to make full answer and
    defence. The trial judge gave sound reasons for allowing the Crown to recall
    Mr. Rigole. She exercised her discretion judicially and with regard to the
    appropriate factors. We should defer to her exercise of discretion in this
    regard. This ground of appeal must fail.

MISAPPREHENSION OF EVIDENCE

[21]

After
    reviewing Mr. Rigoles evidence, the trial judge gave reasons for accepting his
    expert opinion. The appellant maintains that the trial judge erred in doing so.

[22]

In
    this court, the appellant takes no issue with the fact that Mr. Rigole is an
    expert in friction ridge analysis. His argument here comes down to what he
    describes as the circular logic embedded in Mr. Rigoles evidence,
    circularity that the appellant maintains required the trial judge to reject the
    opinion offered.

[23]

The
    appellant seizes on the fact that Mr. Rigole pointed to six areas of similarity
    between the known and found prints to form the opinion that they came from the
    same source. Yet, as the appellant emphasizes, Mr. Rigole also acknowledged
    that there were visual differences in each of the areas of similarity. The
    expert testified that the differences did not arise from dissimilarities
    between the prints, but from distortions in the print left on the bag. The
    appellant argues that it is circular for the expert to conclude that the
    differences must be distortions rather than dissimilarities only because, as
    the expert testified, the similarities show that the print must have come from
    the appellant.

[24]

Given
    the admitted differences between the prints, the appellant maintains that Mr.
    Rigoles expert opinion amounted to nothing more than a bald assertion that the
    prints emanated from the same source. In these circumstances, the appellant
    argues that the trial judge was duty bound to reject the expert opinion
    proffered and her failure to do so reveals a clear misapprehension of evidence
    giving rise to an unreasonable verdict and miscarriage of justice. I disagree.

[25]

A
    misapprehension of evidence can involve a failure to take into account an item
    of evidence that is relevant to a material issue, a mistake about the substance
    of evidence, or a failure to give proper effect to evidence:
R. v.
    Morrissey
(1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at para. 83. Leaving
    aside errors of law, a misapprehension of evidence can give rise to a
    miscarriage of justice in the form of an unreasonable verdict under s.
    686(1)(a)(i) of the
Criminal Code
or a miscarriage of justice caught
    under s. 686(1)(a)(iii) of the
Criminal Code
:
Morrissey
, at
    para. 87. The appellant maintains that the trial judges acceptance of Mr.
    Rigoles opinion constitutes a misapprehension of evidence because, if she had
    given his evidence proper effect, she would have rejected it. He argues that
    the trial judges acceptance of Mr. Rigoles opinion demonstrates that she
    misunderstood his evidence.

[26]

This
    argument can only succeed if the trial judge was duty bound to reject Mr.
    Rigoles opinion. I do not agree that the trial judge was required to do so. A
    brief review of the experts evidence demonstrates why I find it was open to
    the trial judge to use Mr. Rigoles opinion exactly as she did  as another
    piece of circumstantial evidence connecting the appellant to the shotgun
    shells.

[27]

The
    impugned evidence spans over 130 pages of transcript. Mr. Rigole testified
    about his training and experience in friction ridge analysis. As his expertise
    on appeal is accepted, there is no need to review his credentials.

[28]

Although
    Mr. Rigole analysed the entire print, for purposes of demonstrating the match,
    he only mapped out six of the corresponding points on the photos of the found
    and known prints. The trial judge was provided with the photos to assist her in
    following the evidence. It is clear from a review of the transcript that as
    each point of similarity and difference was examined upon, the trial judge was
    able to follow the experts explanations by reference to the photos she had in
    front of her.

[29]

The
    nub of the complaint in this case comes down to what Mr. Rigole acknowledged
    were differences between the found and known prints. Mr. Rigole explained that
    these differences arose from what he believed were distortions in the found
    print, likely caused by the crinkly nature of the plastic bag. Under
    extensive cross-examination, Mr. Rigole testified that it is not unusual to
    find distortions in prints. Whether taken at the time of booking or found at a
    crime scene, some degree of distortion will be present. This can be explained
    by different things, including the surface on which the print is found, the
    amount of pressure used to create the print, or the skin sliding on the surface.
    Although he agreed that each of the areas of similarity between the known and
    found prints contained distortive qualities, he was confident that they were
    not distorted so much that he could not use them for purposes of comparison.

[30]

Mr.
    Rigole agreed under cross-examination that if he had detected a true dissimilarity
    between the prints, then he would not have formed the opinion that they were
    from the same source. He rejected the proposition that distorted parts of the found
    print represented actual dissimilarities. He explained that, as in all cases, he
    looked at the entire print from top to bottom. He located characteristics he was
    confident in and he compared them. In this case, cumulatively, there were
    enough points of similarity to allow him to render the opinion that the print
    on the bag matched the known print. Having regard to his experience and
    training, and the sheer number of similarities found, Mr. Rigole rendered the
    opinion that the visible differences were nothing more than the result of
    distortions caused by what he believed to be the substrate surface on which the
    print had been left. In other words, it was the totality of the points of
    similarity that allowed him to form the opinion that any apparent dissimilarities
    were the product of distortion.

[31]

The
    trial judge was clearly alive to the concerns expressed on appeal. She specifically
    noted that Mr. Rigole acknowledged that there were visible differences with
    respect to all of his points on the chart due to distortion. Having heard the
    experts evidence, and having had the advantage of following the evidence with
    the use of the photos provided, the trial judge gave reasons for accepting Mr.
    Rigoles opinion, including:

(a) his
    lengthy experience as a fingerprint examiner;

(b) his
    ability to explain the procedure he followed and its underlying theory;

(c) his
    explanation around the level of detail found in the print;

(d) the
    fact that the other expert also concluded that the known and found prints were
    from the same source;

(e) the
    fact that a vigorous cross-examination did not undermine his opinion; and

(f) the
    fact that he was objective and fair.

[32]

Mr.
    Rigole did not take a just trust me approach to his opinion evidence. He
    provided an explanation as to how he arrived at his opinion. He was extensively
    cross-examined. Read as a whole, his evidence does not demonstrate circular
    logic. The trial judge was not overwhelmed by the mystic infallibility of
    expert opinion evidence. It was open to her to accept his opinion and her decision
    to do so does not constitute a misapprehension of evidence.

[33]

This
    ground of appeal also fails.

CONCLUSION

[34]

I
    would dismiss the appeal.

Released: KF Mar 2 2018

Fairburn J.A.
I agree. K. Feldman J.A.
I agree. David M. Paciocco J.A.


