Judge may carry out the handwriting comparison but only with caution

R. v. Flynn, 2010 ONCA 424, released today, makes clear that a trial judge is entitled to carry out a handwriting comparison. But, should the trial judge do so there must be caution used as the trial judge is not a handwriting expert. The Court holds:

[16]          The thrust of the appellant's argument in the present case is that the trial judge carried out the handwriting comparison between what the appellant accepted was his handwriting and the handwriting in the address book without properly cautioning himself as to the dangers in doing so. 

[17]          We do not agree.  In his reasons, the trial judge said the following:

Ms. Breault [Crown counsel] urged me to find that the known samples of Flynn's [the appellant's] handwriting on Exhibit 37 confirmed that the incriminating entries in the address book were written by him.  Although I am no expert in handwriting comparison, buoyed by the endorsement in R. v. Malvoisin, I compared the samples and think that with particular reference to such common letters as the Gs and the Js there is little room for reasonable doubt that Carl Flynn wrote the entries at page C-D of the address book. [Citation omitted.]

[18]          While perhaps not as clearly set out as one might hope, we are of the view that this passage shows that the trial judge did exercise the caution needed when a trier of fact engages in a handwriting comparison exercise.  The trial judge was obviously alive to the fact he was not an expert.  That suggests he recognized the need for care.  He specifically referred to this court's decision in Malvoisin, which points out the need for caution.  In addition, he appears to have exercised care in comparing specific letters.  Thus, we do not agree that the trial judge erred in conducting the exercise. 

[19]          The significance of the handwriting comparison was apparent during the trial.  The appellant's ex-wife, who had been married to the appellant for eight years, testified that the writing in the address book was his.  The appellant testified initially that the writing in the address book was not his and then modified his evidence on cross-examination.  In effect, he said he was not sure.  The appellant had ample opportunity to cross-examine his ex-wife and call other evidence about the handwriting had he wished to do so.