The B.C. Court of Appeal overturned the acquittal of Timothy Dale Bornyk and ordered a new trial as a result of the conduct of Supreme Court Justice Gordon Funt in R. v. Bornyk.
“A judge may only rely upon the evidence presented at trial, except where judicial notice may be taken,” stated Justice Mary Saunders. “Judicial notice of course, is limited to facts that are notorious or generally beyond debate,” added Saunders, with justices Pamela Kirkpatrick and Daphne Smith concurring, in the ruling issued Jan. 23.
Funt’s actions were “well intentioned” even if they were outside what he was permitted to do as a trial judge, says Jeffrey Ray, who represented Bornyk at the Court of Appeal.
Bornyk was tried in B.C. Supreme Court in 2013 and accused of breaking into a house in Surrey, just outside of Vancouver. The home was ransacked and the court heard that one of the owners bought novelty items for re-selling at a later date.
A latent fingerprint was found on the plastic wrapping of a box that was part of a series of gothic themed toys known as “Living Dead Dolls.”
An RCMP corporal, qualified at trial as an expert in the field, testified that in his opinion the fingerprint matched that of the accused.
Funt conducted independent research after the evidence was concluded and his ruling was on reserve. The research included four academic reports from the United Kingdom and the United States about the possibility of errors in fingerprint identification. The Crown also sent three other journal articles to the judge and defence counsel, before the court asked to hear further legal arguments.
As a result of this research, the trial judge concluded there were a number of “troubling aspects” that arose from the RCMP officer’s testimony and his conclusions. The officer was not recalled as a witness,
Funt also stated he saw unexplained gaps in comparing the latent fingerprint with the known fingerprint, which created a reasonable doubt.
The Crown appealed the decision and the Trial Lawyers’ Association of B.C. unsuccessfully sought intervener status. It argued there should be further clarification of the role of the trial judge, especially with the increase in self-represented accused.
Ray, a defence lawyer based in New Westminster, supported the request to intervene. “I think it is unfortunate because a trial judge may have unique knowledge and want to seek further clarification,” says Ray.
The legal issues that arose from the trial judge’s actions is why there was an appeal filed in a relatively lower level criminal case, explains Megan Street, Crown counsel in the appeal. The fingerprint analysis research “had not been properly introduced. It was not tested in evidence and not put to the police fingerprint expert for either adoption or refutation,” Street says.
The Court of Appeal declined to decide if there are any occasions when a trial judge can go beyond the evidence presented at trial. It concluded that while the Crown did not initially object to Funt conducting research, the verdict was “properly appealable” because it involved questions of law.
“By his actions, the judge stepped beyond his proper neutral role and into the fray. In doing so, he compromised the appearance of judicial independence essential to a fair trial,” wrote the Court of Appeal.
“It is clear from the reasons for judgment that the articles had a material bearing on the acquittal as the judge relied upon them to find that the fingerprint identification was not reliable. Most of the ‘troubling aspects’ he identified were not put to the expert witness and appear to respond to the articles he located,” stated Saunders.