Appeal Court orders new trial in Surrey burglary case

VANCOUVER — The Court of Appeal for British Columbia has ordered a new trial in a five-year-old Surrey burglary case after finding that the trial judge based his decision to acquit the suspect on his own investigation rather that that of an expert witness.

Timothy Dale Bornyk had been accused of burglarizing a house in Fleetwood in July 2010 but was acquitted of break, enter and theft because Justice Gordon Funt, a B.C. Supreme Court judge, couldn't be sure a partial fingerprint on a box containing a carnival ghoul doll belonged to him.

Bornyk was accused of forcing his way into the house and ransacking it while the homeowners were away at their cottage in Washington State.

The Crown's case had relied on the single fingerprint found in the home, which had been up for sale at the time.

The Surrey RCMP found the fingerprint by using magnetic black powder. One of the homeowners collected novelty items and the fingerprint had been found on the plastic wrapping of a box containing a "Living Dead Doll."

But ripples in the plastic distorted the print, the judge noted. "For practical purposes, it was a partial fingerprint."

While the Surrey RCMP held there was enough there to confirm a match, Funt disagreed.

"While the usable portion of the latent fingerprint and the known fingerprint are quite similar, I have more than a reasonable doubt that there is a match of the latent fingerprint to the known fingerprint," he found. "Accordingly, I acquit the accused."

The Crown then appealed the acquittal and the appeal court found Funt had erred by making his own comparison of known and latent prints, finding ‘differences’ that had not been put to an expert witness. In doing so, Appeal Court Justice Mary Saunders found, Funt “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,” she determined, and thus “assumed the multi-faceted role of ‘advocate, witness and judge.’”

Saunders said it was not open to the judge to “embark on” an independent investigation and “consider the fruits of his investigation.”

Saunders’ appeal court colleagues, Justices Pamela Kirkpatrick and Daphne Smith, concurred.

tzytaruk@thenownewspaper.com