R. v. Cunsolo, 2011 ONSC 1349 (CanLII)
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[242] Proof that an accused authored certain writing may afford circumstantial evidence that not only was he or she acquainted with the subject matter to which the writing is connected, but also, depending on the context, that the accused was actively engaged in participating in any described transaction.
[243] The prosecution may establish that a writing was made by an accused on the basis of an admission or agreement or, where disputed, by:
(1) a witness acquainted with the accused’s writing
(2) expert evidence
(3) comparative evaluation by the trier of fact without the testimony of a witness.
[244] These proof processes, particularly the latter two described above, inevitably involve a comparison of unknown or disputed writing to a handwriting sample authenticated at trial to be genuine in the sense of a proved exemplar of the accused’s writing, whether by admission or other persuasive proof.
[245] Introduction of the opinion of a handwriting expert subjects the expert’s conclusions to the scrutiny generally applicable to expert evidence. The opinion of a properly qualified expert, based upon an appropriate foundation, amounts to a piece of evidence which a trier of fact evaluates for acceptance or rejection and, where accepted, the assignment of what weight it properly deserves. On occasion, as in the present case, where the expert’s report concludes one writer authored certain documents without identifying the writer, it is accepted for the truth of its contents with minimal defence submissions as to weight as the defence submits that the prosecution has failed to establish that the accused is that writer. This approach is entirely consistent with the approach advocated in R. v. Coburn reflex, (1982), 66 C.C.C. (2d) 463 (Ont. C.A.) of avoiding a credibility contest between documentary and viva voce evidence.
[246] A trier of fact is entitled, and indeed not precluded, as a matter of common law, to undertake a comparative analysis of handwriting specimens without the intervention of witnesses interpreting or identifying the relevant writing – a deliberative and fact-finding process which is not ousted by s. 8 of the Canada Evidence Act which provides:
Comparison of a disputed writing with any writing proved to the satisfaction of the court to be genuine shall be permitted to be made by witnesses, and such writings, and the evidence of witnesses respecting those writings, may be submitted to the court and jury as proof of the genuineness or otherwise of the writing in dispute.
See R. v. Abdi 1997 CanLII 4448 (ON CA), (1997), 116 C.C.C. (3d) 385 (Ont. C.A.), at paras. 13-23, 25; R. v. Malvoisin (2006), 36 M.V.R. (5th) 187 (Ont. C.A.), at para. 4.
[247] It is important as an aspect of the accused knowing the case to be met, that he or she be on notice that the trier of fact may engage in comparative handwriting identification analysis: R. v. Flynn, 2010 ONCA 424 (CanLII), 2010 ONCA 424, at para. 20; R. v. Anderson, 2005 BCCA 143 (CanLII), 2005 BCCA 143, at paras. 11-14.
[248] “Handwriting is an acquired skill that becomes ingrained; it is habitual as well as individualized”: S.H. James & J.J. Nordby (eds.), Forensic Science – An Introduction to Scientific and Investigative Techniques (2nd ed.) (CRC Press), at p. 359. Handwriting identification comparison is based on a number of assumptions including:
(1) the underlying axiom of handwriting comparison is that no two individuals write in the same way
(2) over time, a person develops personal and distinctive characteristics or features in his or her handwriting, effectively yielding a unique individual pattern which can be discerned by observation of sufficient samples of handwriting.
See G.M. Chayko & E.D. Gulliver, Forensic Evidence in Canada (2nd ed.) (Aurora: Canada Law Book, 1999), at p. 509; K.M. Matthews, J.E. Pink, A.D. Tupper, A.E. Wells, The Expert – A Practitioner’s Guide (Scarborough, Thomson Canada Limited, 1995), at pp. 13-5; D.M. Risinger & M.J. Saks, “Science and Nonscience in the Courts: Daubert Meets Handwriting Identification Expertise” (1996), 82 Iowa Law Rev. 21, at p. 67.
[249] “The recognition, correct interpretation, and complete comparison of all of its qualities, elements, and characteristics, are the essential phases of a scientific handwriting examination” and “[t]he process of comparison...is reasoning regarding similarities and differences”: A.S. Osborn, Questioned Documents (2nd ed.) (Toronto: The Carswell Company, Limited, 1929), at pp. 97, 237.
[250] Accordingly, a trier of fact is entitled to use his or her “own eyes and...common sense” in making “an educated and reasonable comparison” of handwriting properly tendered in evidence (Abdi, at paras. 26, 29). The notion of writing undoubtedly includes printing and other text: National Research Council, Strengthening Forensic Science in the United States: A Path Forward (The National Academics Press, 2009), at p. 164 (“handwriting includes cursive or script stroke writing, printing by hand, signatures, numerals, or other written marks or signs”); J. Levinson, Questioned Documents: A Lawyer’s Handbook (San Diego, Academic Press, 2001), at p. 41 (query whether writer uses special signs or marks or “certain abbreviations or pictographic techniques in writing”).
[251] The trier should be encouraged to proceed by the use of objective criteria as the foundation for any opinion should one prove possible. The dependability or reliability of the trier’s conclusion and the weight to be attributed to such conclusion are case-specific issues. It is expected that the trier will focus on “the distinctiveness of the writings in issue” (Abdi, at para. 25), for example the manner in which particular letters are written: Flynn, at paras. 17-18. In some instances, the trier may be invited to look at the similarity of the misspelling of certain words and the irregular spacing of others: R. v . G.D.C., 2010 ONCA 381 (CanLII), 2010 ONCA 381, at para. 4.
[252] Handwriting comparison, even by experts, is no easy task. As a general rule, it is recognized that there is a potential danger in making unassisted handwriting comparisons in the absence of expert or other evidence relating to the writings: Abdi, at paras. 27, 29; Malvoisin, at para. 4. This cautionary theme is hardly surprising given the scope of examination which might be undertaken by an expert as described at p. 510 of the Chayko and Gulliver text:
The characteristics which are assessed include: line quality; writing fluency and legibility; rhythm of movements; pen pressure; slope of handwriting; spacing between characters, words and lines of information; alignment of characters, words and lines of handwriting; direction of strokes; manner of connecting and disconnecting characters and words; initial and terminal movements; size of writing; character design; internal consistency of movements; proportions within characters and one of character to another; arrangement of writing; presence or absence of pen lifts, hesitations and hiatuses; and the design and positioning of punctuation marks, diacritics, accents and other symbols.
See also Risinger & Saks, “Science and Nonscience in the Courts...”, at pp. 67-73; Matthews et al., The Expert..., at p. 13-3; Osborn, Questioned Documents, chs. IX, X.
[253] The trier of fact must therefore exercise caution in performing comparative handwriting analysis for any number of reasons including:
(1) weakness of proof respecting the “known” sample of the accused’s writing
(2) the lack of expertise and experience in performing the task
(3) lack of access to special equipment utilized by experts and laboratories
(4) the quality of the handwriting exemplar, including consideration of length and clarity: Abdi, at para. 27; Risinger/Saks, at p. 35; Chayko/Gulliver, at p. 510; I. Freckelton & H. Selby, Expert Evidence in Criminal Law (Ontario; Carswell, 1999), at pp. 126-7
(5) the deficits occasioned to the process by photocopies: Chayko/Gulliver, at pp. 520-1; Matthews et al., at p. 13-8
(6) the natural variation in everyone’s handwriting (“intrasource variation”): Chayko/Gulliver, at p. 510; Matthews et al., at p. 13-5
(7) given that different individuals may well have similar handwriting: (A. Gold, Expert Evidence in Criminal Law: The Scientific Approach (2nd ed.) (Toronto: Irwin Law Inc., 2009), at p. 143), the necessity of separating out class master patterns from identifying significant individuality of features and habitual repetition of same supporting the view that the samples are the product of a single writer
(8) deciding how many features or attributes of similarity are required to move beyond resemblance to identification of a writer: Chayko/Gulliver, at p. 512; Matthews et al., at p. 13-9
(9) identification of not superficial, but persistent and fundamental, differences in the relevant samples detracting from the probative force of discerned similarities: Matthews et al., at p. 13-9; Osborn, at p. 205.
[254] On the latter point, at pp. 245, 262, 381-2, 383 and 385 of his text, Osborn very persuasively discusses the significance of not only material and repeated similarities but also the role of relevant differences:
...if the conclusion of identity is reached, either in a person or a handwriting, there must not remain significant differences that cannot reasonably be explained. This ignoring of the differences, or the failure properly to account for them, is the cause of most of the errors in handwriting identification.
. . .
It also needs to be emphasized that two writings are identified as being by the same writer by the absence of fundamental divergences as well as by a combination of a sufficient number of similarities. The process is always a double operation, positive and negative, and if error is to be avoided neither part of the process should be overlooked. In order to reach the conclusion of identity of two sets of writings there must not be present significant and unexplained divergences. These divergences must, however, be something more than mere trivial variations that can be found in almost any handwriting.
. . .
It should be clearly understood that a correct conclusion in any case, as stated in other connections, is based only upon a combination of common qualities and individual characteristics in sufficient number so that it is reasonable to say that they would not all accidentally coincide in two writings by different writers.
. . .
Errors in identification of handwriting are mainly due to two causes. The first of these is the lack of knowledge regarding these common similarities in many handwritings, as already described, and the second is due to the overlooking, ignoring, or incorrect interpretation of the differences in two handwritings. Ignorance or inexperience may lead to wrong reasoning on any of these general or individual qualities or may omit reasoning.
. . .
Errors are also due to the fact that identity is inferred from mere superficial qualities that are not individual.
[255] After undertaking handwriting comparison, a trier will arrive at a determination on the comparative identification question. The Chayko and Gulliver text, at p. 511, describes the process in this way:
The conclusions expressed in handwriting comparisons range from certainty to probability to being inconclusive. The terminology and conclusion levels vary among laboratories. One frequently used scale of conclusions is:
1. Definitive – “The questioned handwriting was (or was not) executed by the writer of the specimens” or “The questioned handwriting has been identified (or eliminated) as having been executed by the writer of the specimens”.
2. Strong probability – “There is a strong probability that the questioned handwriting was (or was not) executed by the writer of the specimens” or “The similarities (or differences) found definitely indicate that the questioned handwriting was (or was not) executed by the writer of the specimen”.
3. Probability – “The similarities (or differences) found tend to indicate that the questioned handwriting was (or was not) executed by the writer of the specimens” or “The similarities (or differences) suggest that the questioned handwriting was (or was not) executed by the writer of the specimens”.
4. Neutral – “It was not possible to determine whether or not the questioned signature was executed by the writer of the specimens” or “The questioned handwriting has not been identified or eliminated as being executed by the writer of the specimens”.
[256] In their text, at p. 153, Freckelton and Selby refer to unqualified identification (no doubt existing, with opinion in absolute terms that document ‘X’ was written by the writer of document ‘Y’), inconclusive identification (“no useful opinion can be given”), and qualified identification described in this way:
This conclusion is expressed in terms of a degree of probability. While qualified opinion evidence in isolation may satisfy the civil standard of proof, it would not be sufficient to secure a criminal conviction. It may, however, provide corroboration of other evidence or be of value to the defence in raising a reasonable doubt.
See also National Research Council, Strengthening Forensic Evidence..., at p. 166 (discussion of 5 and 9-point scales for expressing subjective conclusions of handwriting comparison and identification).
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