Her Majesty the Queen v. Dimitrov [Indexed as: R. v. Dimitrov]

68 O.R. (3d) 641

[2003] O.J. No. 5243

Docket No. C34922

Court of Appeal for Ontario

Weiler, Gillese and Armstrong JJ.A.

December 24, 2003

*Application for leave to appeal dismissed April 29, 2004. (Bastarache, LeBel and Deschamps JJ.).

Criminal law -- Trial -- Charge to jury -- Identification evidence -- Eyewitness describing man who drove murder victim's car on day of murder -- Eyewitness failing to pick accused out of photo lineup but had given earlier description inculpating accused -- Trial judge warning jury as to frailties of eyewitness identification and instructing jury that evidence of photo lineup did not provide evidence of identification of accused -- Instructions appropriate -- Witness' inability to identify accused in photo lineup not rendering her description of man who drove victim's car inadmissible.

Criminal law -- Evidence -- Expert evidence -- Trial judge erred in admitting expert evidence of barefoot impressions in shoes that were "similar to" accused's feet -- Barefoot impression evidence may be admissible if accused's feet bear distinctive features also found in impression or to exclude person as regular wearer of shoes -- Given expert's inability to exclude possibility that another person could have borrowed boots without leaving different barefoot impression, absence of other evidence proving that accused owned boots and some evidence boots not worn when offence committed, error to admit expert's evidence regarding barefoot impression in boot as evidence of identification -- Probative value slight and outweighed by its prejudicial effect -- New trial ordered.

The accused was convicted of second degree murder. He and another man were tenants in the home of the victim and the victim's wife. Only those four people had keys to the house. There was evidence that the victim was killed in the garage adjoining the house. A pair of winter boots was found inside the front hall closet of the house. They were splattered with the victim's blood. There was expert evidence that the boots were "likely" worn by the accused. The expert witness, K, was an expert in footwear and barefoot impressions in shoes. Defence counsel acknowledged K's expertise in the area of footwear impressions, but opposed the admission of his testimony relating to barefoot impressions. The trial judge admitted the evidence. On the day of the murder, and after the apparent time of death, a witness, B, saw a man waiting for the mailman to deliver mail to a communal mailbox. The man then got into the driver's seat of a car which B identified as that of the victim. She described the man as having black hair and a beard. The accused's hair and beard were black. B did not identify the accused in a photo line-up. In his charge to the jury on the identification evidence, the trial judge alerted the jury to the "inherent frailties" of eyewitness identification, and instructed them that the evidence of the photo lineup did not provide evidence of identification of the accused. The accused appealed.

Held, the appeal should be allowed.

The trial judge did not err in instructing the jury as to the frailties of eyewitness identification instead of simply telling them that there was no identification by B. B's description of the man at the mailbox was inculpatory. That evidence was materially supported both by another eyewitness and by other circumstantial evidence. The instruction as to the frailties of eyewitness identification was [page642] properly given. The inability of B to identify the accused in a photo lineup did not render the first aspect of her evidence inadmissible.

The trial judge erred in admitting the expert evidence of barefoot impressions in shoes. K testified that the victim, his wife and the other tenant did not make the impressions in the boots; that the accused "likely" made the impressions in the boots; and that it was "likely" that the person who regularly wore the boots was the same person who regularly wore the shoes seized from the accused at the time of his arrest. Although footprint impression evidence is routinely accepted by courts, the same cannot be said of evidence of barefoot impressions in shoes. Barefoot impression evidence must be carefully evaluated on a case-by-case basis to determine its admissibility. Such evidence may be admissible where there are distinctive features of the barefoot impression that can connect the footwear to the accused's feet. It may also be admissible to show that an accused person has not worn a particular pair of shoes or to eliminate persons as regular wearers of shoes. The fact, however, that an accused person's footprint is "similar to" the barefoot impression in a boot or shoe ought not to be admissible as positive identification. Apart from K's evidence, there was no evidence that the accused owned the boots. There was no evidence that the assailant wore the boots during the attack, as opposed to the boots simply being in the garage when the assault took place, and there was evidence which suggested that the boots were not worn at the time of the attack. K's evidence did not eliminate the other tenant as the wearer of the boots. If the killer just borrowed the boots, the patterns in the boots might still only reveal the foot impressions of the owner. In the absence of evidence that the boots belonged to the accused and were worn at the time of the offence, the evidence about the boots logically could do little to advance the case against the accused. The slight probative value of K's evidence was outweighed by its prejudicial effect.

APPEAL from a conviction for second degree murder.

R. v. J. (J.-L.), 2000 SCC 51, [2000] 2 S.C.R. 600, 192 D.L.R. (4th) 416, 261 N.R. 111, 148 C.C.C. (3d) 487, 37 C.R. (5th) 203 (sub nom. R. v. J.-L.J.); R. v. Légère (1994), 156 N.B.R. (2d) 321, 401 A.P.R. 321, 95 C.C.C. (3d) 139, 35 C.R. (4th) 1 (C.A.), consd R. v. Mohan, [1994] 2 S.C.R. 9, 114 D.L.R. (4th) 419, 89 C.C.C. (3d) 402, 29 C.R. (4th) 243, apld Other cases referred to Chartier v. Attorney-General for Quebec, [1979] 2 S.C.R. 474, 104 D.L.R. (3d) 321, 27 N.R. 1, 48 C.C.C. (2d) 34, 9 C.R. (3d) 97; R. v. Arcuri, [1998] O.J. No. 267 (QL) (Prov. Ct.); R. v. Beland and Phillips, [1987] 2 S.C.R. 398, 43 D.L.R. (4th) 641, 79 N.R. 263, 36 C.C.C. (3d) 481, 60 C.R. (3d) 1; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, 184 D.L.R. (4th) 193, 252 N.R. 204, 143 C.C.C. (3d) 1, 32 C.R. (5th) 1; R. v. Ferguson, 2001 SCC 6, [2001] 1 S.C.R. 281, 265 N.R. 201, 152 C.C.C. (3d) 95, 44 C.R. (5th) 305, revg (2000), 142 C.C.C. (3d) 353, 35 C.R. (5th) 290 (Ont. C.A.); R. v. G. (A.), 2000 SCC 17, [2000] 1 S.C.R. 439, 184 D.L.R. (4th) 238, 252 N.R. 272, 143 C.C.C. (3d) 46, 32 C.R. (5th) 45 (sub nom. R. v. A.G.); R. v. Izzard (1990), 38 O.A.C. 6, 54 C.C.C. (3d) 252, 75 C.R. (3d) 342 (C.A.); R. v. McIntosh (1999), 141 C.C.C. (3d) 97, 30 C.R. (5th) 161 (Ont. C.A.) (sub nom. R. v. McIntosh (C.)) [Leave to appeal to S.C.C. denied (2000), 260 N.R. 397n]; R. v. Nikolovski, [1996] 3 S.C.R. 1197, 31 O.R. (3d) 480n, 141 D.L.R. (4th) 647, 204 N.R. 333, 111 C.C.C. (3d) 403, 3 C.R. (5th) 362; R. v. Quercia (1990), 75 O.R. (2d) 463, 41 O.A.C. 305, 60 C.C.C. (3d) 380, 1 C.R. (4th) 385 (C.A.); R. v. Sood, [1997] O.J. No. 5417 (QL) (Gen. Div.); R. v. Terceira, [1999] 3 S.C.R. 866, 250 N.R. 98, 142 C.C.C. (3d) 95, affg (1998), 38 O.R. (3d) 175, 123 C.C.C. (3d) 1, 15 C.R. (5th) 359 (C.A.); [page643] State v. Jones, S.E. 2d 813 (S.C. 2001); State of North Carolina v. Berry, 143 N.C. App. 187, 546 S.E.2d 145, 2001 N.C. App. LEXIS 269 (2001) Authorities referred to The Inquiry Regarding Thomas Sophonow (Manitoba, September 2001) (Hon. Peter Cory, Commissioner)

Frank Addario, for appellant. Karen Shai, for respondent.

The judgment of the court was delivered by

WEILER and GILLESE JJ.A.: --

OVERVIEW

[1] In the early morning of February 21, 1996, Hristo Veltchev was murdered in the garage attached to his home. The appellant, a boarder in the house at the time, was charged with his murder and convicted by a jury of second degree murder. The central issue at the appellant's trial was the identity of the killer. The appellant did not testify.

[2] Four people lived at 82 Newport Crescent at the time of the murder: the victim, his wife, Faith Veltchev, and two tenants, Dimitre Tzenev and the appellant. The position of the Crown at trial was that the deceased was killed by one of the persons living in the house and that that person was the appellant.

[3] The evidence on which the Crown relied to show that a person living in the house was involved in the killing is as follows:

-- At 7:00 a.m. on the day of the murder, the victim's boss saw him leave the Ottawa fibre plant where he had worked the night shift. The victim waved goodbye to his boss and headed towards his home at 82 Newport Crescent only a short drive away.

-- Only the four persons living in the house had keys to the house.

-- There were two entrances into the garage. One entrance was from the front hallway of the house. The second was the main garage entrance to which only the victim had access through a remote control in his vehicle. There were no signs of forced entry into the garage. Nothing was tampered with or stolen from the garage or house. [page644]

-- Upon initial inspection the garage seemed extremely clean with no evidence of disruption or unusual staining. One police officer testified that the garage smelled of cleaning solvent. Forensic examination of the garage revealed blood on the two wooden steps leading into the house, as well as blood on the wall surface next to the stairs that had been wiped. There were also blood transfer stains and drag marks along the garage floor, and, under a large sand patch on the garage floor at the main entrance, there was a large pool of blood.

-- The blood was the blood of the victim. It was apparent that someone had gone to a great deal of trouble to try and clean up the evidence of the murder. At trial, the defence agreed that the location of the murder was the garage. Evidence led at trial was to the effect that it would have taken at least five hours to effect the clean up in the garage.

-- As the victim handled insulation that left irritating fibres on his clothes, it was his habit to change out of his work clothes as soon as he got home. The body of the deceased was found in the trunk of his grey car in a shopping mall parking lot approximately five kilometres away from his home. He was still wearing his work clothes. A bag that the victim normally brought into the kitchen when he returned home was still in his car. His wallet, identification papers and keys were in his pockets. A mail key that usually hung on a hook in the house was also in his pocket. He had no shoes on his feet.

-- About a month after the murder, the running shoes that the victim wore to work every day were discovered in the basement, shoved behind the staircase.

-- The cause of death was blunt force trauma to the head. The victim suffered seven blows to the sides and back of his head caused either by an object or repeated banging against a hard surface. The blows may have been struck from behind. There were no defensive wounds. Death would have occurred minutes to an hour after being struck.

-- A pair of Eagle Rock winter boots was found inside the front hall closet of the house. They were spattered with the victim's blood. There was no blood on the soles of the shoes. [page645]

[4] The evidence upon which the Crown relied to prove that, of the persons living in the house, the appellant killed the victim is as follows:

-- The appellant had the opportunity to commit the offence as he was at home at the time the victim was killed. The appellant told Faith Veltchev that he thought he had heard the garage door open that morning.

-- On the day of the murder, the appellant had coffee with two friends, Silvia Beeva and Panel Stankov. Beeva reported that the appellant told her that he had been waiting for the victim to come home from work in the morning to have coffee with him, but that the victim had not arrived. Stankov testified that the appellant told him that he had not seen the victim that morning and that he had not come home from work.

-- Neither Faith Veltchev nor Dimitre Tzenev had the opportunity both to commit the offence and clean up immediately afterwards. The appellant was the only resident of 82 Newport Crescent who could have been at home at 10:00 a.m. The victim's wife was at work, having left at 5:50 a.m. Attendance records indicated that Tzenev was at his English as a second language class from 9:00 a.m. until 3:00 p.m. after which time he went to work. He ran an errand and returned home about 7:30 p.m.

-- Between 8:45 and 10:00 a.m. on the day of the murder, the postman opened the mailbox to place residents' mail in their individual boxes, which were located in a community mailbox, which serviced the entire street. A man was standing near him and waiting as he sorted the mail. After the mail for 82 Newport was placed in the box, the man tried to take the mail through the open panel. The postman told him he would have to wait until the panel was closed and use his own key. The man replaced the mail and left without opening the box. He walked away in the direction of 82 Newport. The mailman said that the man's hair was "scruffy" or uncombed and standing up as if he had just arisen from bed. He noted that the man spoke a foreign language that he did not recognize, neither English nor French. The appellant, like the victim and the other boarder, Tzenev, is from Bulgaria and speaks Bulgarian. The tenants did not have their own keys to the mailbox. [page646]

-- Linda Beland, another resident of Newport Crescent, was waiting for the postman to finish with the mail at about 10:00 a.m. and watched his interaction with the man. She watched the man return across the street towards 82 Newport Crescent, after he spoke with the mailman. A grey car was running, parked, on the street outside the Veltchev residence. She described the car as a newer car, four-door, dark grey vehicle. The victim's car was a grey 1993 four- door Honda Civic. The man got into the driver's seat. Beland testified that the car she saw the man get into was the same car as in the photo of the victim's car. She described the man's height and build, his hair as "big hair like how cavemen don't cut their hair" and said he had a beard. She said that the man's hair and beard were "like black".

-- The appellant is the only person in the house with a beard. His hair and beard are black. He was unemployed. He tended to stay up late at night and remain in bed when the others left the house.

-- The Crown also relied on expert evidence that the Eagle Rock winter boots found in the front closet of the home were "likely" worn by the appellant.

ISSUES

[5] The appellant advances three grounds of appeal. They are as follows:

1. Did the trial judge err in warning the jury about the evidence of the witness Beland?

2. Did the trial judge err in admitting expert evidence of the barefoot impression in the Eagle Rock boots?

3. Was the verdict unreasonable and contrary to the weight of the evidence?

[6] A fourth ground of appeal was raised in the factum, namely, whether the trial judge erred in limiting the cross- examination of Faith Veltchev as to whether she had made a claim for the proceeds of an insurance policy on her husband's life, as well as on the reason the insurer had not paid the policy. This issue was abandoned when the appeal was heard. The defence wanted to elicit evidence that Faith Veltchev had failed a polygraph examination for the truth of its contents and that, as a result, the insurance company had refused to pay her the proceeds of her [page647] husband's life insurance policy. Mr. Addario very fairly conceded that, while evidence of the fact that Faith Veltchev had taken a polygraph examination was admissible, the result of the polygraph was not admissible to cast doubt on her credibility as the defence was attempting to do: See R. v. Beland and Phillips, [1987] 2 S.C.R. 398, 36 C.C.C. (3d) 481; R. v. McIntosh (1999), 141 C.C.C. (3d) 97, 30 C.R. (5th) 161 (Ont. C.A.), application for leave to appeal to the Supreme Court dismissed [2000] S.C.C.A. No. 81.

1. Did the Charge on Eyewitness Identification Prejudice the Appellant?

[7] The appellant's first submission on this issue may be summarized in the following way. Linda Beland's description of the man at the mailbox contained two significant dissimilarities from the appellant: they are the colour of his skin and the coat that he wore. As a result, Linda Beland's evidence tended to exculpate the appellant, not to inculpate him. The trial judge's traditional instruction with respect to the frailties of eyewitness identification took away a flaw in the Crown's case and bolstered the inculpatory effect of the evidence.

(a) Linda Beland's description

[8] The first dissimilarity alleged is with respect to the skin colour of the appellant. In her examination in chief, Linda Beland described the complexion of the man she saw at the mailbox as "dark". In cross-examination she was asked if the man she saw was black, and the following exchange ensued:

A. No, more like a Hindu person.

Q. A Hindu person?

A. Well, it's not -- he was not a black man [^1].

[9] The second dissimilarity the appellant alleges relates to the description of the coat that Linda Beland said the man was wearing. She said the man at the mailbox was wearing a knee- length dress coat in a solid colour, green or khaki. (Mr. Deschambault, the postman, testified that the person at the mailbox wore a long, black coat made of a heavy, canvas-like material. He said the coat was "like one they wear out in Calgary""a cowboy coat".). Two Crown witnesses who saw the appellant the day the victim [page648] was killed testified that he wore an old, grey, herringbone-print wool coat and that he had only one set of clothes. The appellant wore this coat to the police station.

[10] The appellant submits the description Linda Beland provided had a significant dissimilarity from the appellant because she described the man she saw as "Hindu". An inference was available to the jury that the man at the mailbox was the perpetrator, and that the perpetrator was not the appellant because he is not a "Hindu" nor does he have the complexion of a person from India.

[11] The Crown submits that Ms. Beland did not describe the man she saw as Hindu and that her description is consistent with that of the appellant. We agree with this submission. Ms. Beland was attempting to elaborate on the colour of the skin of the person she saw at the mailbox that she had described in her examination in chief as "dark". She said the colour was "not black". When shown a photographic line-up of individuals six days after the murder, all of whom were Caucasian, Ms. Beland did not say that the complexion of the persons in the line-up did not match the person she saw because the skin colour of the person she saw was that of a Hindu or East Indian person. Instead, she pointed to one of the photographs of a person in the line-up and said it looked like the person she saw; this was photo A-2. The person in the photo was Caucasian. He had dark hair and a beard. She said that the person she saw had darker hair and a darker beard. The appellant has darker hair and a darker beard than the person in photo A-2.

[12] Ms. Beland described the hair and beard of the man she saw at the mailbox. Mr. Deschambault, the postman, corroborated her description of the man's hair and beard. The jury had the photo of the appellant on his arrest; it showed that he had black hair and a beard. Unlike the decisions cited to us by the appellant involving dissimilar features, the value of Ms. Beland's evidence does not lie in the exactitude of her description. Its strength is the way it fits with the other evidence. Given the cogent evidence that a resident of 82 Newport committed the murder, evidence that at about 10:30 a.m. a man with black hair and a black beard got into the victim's car was compelling evidence of identity because only one person at 82 Newport had these characteristics.

[13] The fact that the appellant's coat was not the colour of the coat described by Mr. Deschambault or Ms. Beland was a piece of circumstantial evidence for the jury to consider. This difference did not, however, render all of the other circumstantial evidence pertaining to the time of the occurrence, what the man did and [page649] where he went, as well as what he looked like, inadmissible. These circumstances all contributed to the issue of identification and were properly for the consideration of the jury.

(b) The photo line-up

[14] As indicated, Ms. Beland was presented with a photo line-up consisting of ten loose photographs. Photo A-7 in the line-up was a photo of the appellant taken upon his arrest three days after the murder. Ms. Beland did not identify the appellant in the photo line-up. She pointed to photo A-2, which was not the appellant, and said "I'm not sure if it's him but it looks like him. This face. The hair wasn't like that. This one got my attention more. His beard and hair were darker." In cross-examination, she said that the man she saw had darker hair than the man in photo A-2. The appellant had darker hair than the man in photo A-2.

(c) The trial judge's instruction to the jury

[15] The appellant submits that the trial judge erred in the instructions he gave the jury regarding the evidence of identification. The trial judge gave the following mid-trial limiting instruction regarding Ms. Beland's evidence:

The law is very careful when dealing with identification evidence based on observation and recollection of individuals. And the law requires that I instruct you to carefully consider such evidence in any case, and alert you to its inherent frailties. This may be necessary at the end of the case, and I will do that perhaps in my final charge if it becomes necessary. But, now, I tell you that the evidence of the photographs and the photographic line-up do not provide evidence of identification of Mr. Dimitrov.

The same approach to this evidence was repeated in the judge's final charge to the jury:

You will recall that out of the ten photographs in exhibit 32 which were reviewed by Ms. Beland, she selected number A-2, and immediately expressed some caution as to correctness of her choice.

I repeat that the if [sic] very careful when dealing with identification evidence based on observation and recollection, and it requires that I instruct you carefully to review such evidence and that I alert you to its inherent frailties which experience has shown can be susceptible of so many errors.

I repeat that the evidence of the photographs and the photographic line-up do not provide evidence of identification of Mr. Dimitrov.

In both cases, these instructions were delivered over strenuous objection from the defence. [page650]

(d) The appellant's submissions and analysis

[16] The appellant submits the jury should have been told there was no identification by Ms. Beland both because her evidence consisted of "significant" dissimilarities in her description of the man at the mail-box and because she did not identify the appellant in the photo line-up. As a result, the policy and legal bases for the "frailties" warning were inapplicable and it should not have been given. See Chartier v. Attorney General for Quebec, [1979] 2 S.C.R. 474, 48 C.C.C. (2d) 34. Considered with the charge concerning the frailties of eye-witness identification, the appellant submits the instruction respecting the photographic line up gave judicial weight to the proposition that Linda Beland made a mistake in not picking the appellant out of the photographic line-up.

[17] The frailties of eyewitness identification evidence are well known. A warning is customarily given to jurors to educate them that the certainty and conviction with which a purported identification is made cannot be equated with the reliability of the evidence. This warning is designed as a protection against wrongful conviction: R. v. Quercia (1990), 75 O.R. (2d) 463, 60 C.C.C. (3d) 380 (C.A.); R. v. Izzard (1990), 54 C.C.C. (3d) 252, 75 C.R. (3d) 342 (Ont. C.A.); R. v. Nikolovski, [1996] 3 S.C.R. 1197, 111 C.C.C. (3d) 403; Hon. Peter Cory, Commissioner, The Inquiry Regarding Thomas Sophonow (Manitoba, September 2001) at 21-34.

[18] There were two aspects to Ms. Beland's evidence. The first was her description of the man at the mailbox. In our opinion, the evidence of Ms. Beland was inculpatory and the instruction as to the frailties of eyewitness identification evidence was properly given. The rule in Chartier applies to cases in which there is a clear dissimilarity in the witness's identification coupled with a lack of supporting evidence. As we have indicated, we disagree that this is a case of significant dissimilarities with respect to positive eyewitness identification. Further, the evidence of Mr. Deschambault supported the evidence of Ms. Beland in two material aspects and, unlike the situation in Chartier, supra, there was other circumstantial evidence implicating the appellant. The second aspect of Ms. Beland's evidence was her non-identification of the appellant from the photographic line-up. The inability of Ms. Beland to identify the appellant in a photo line-up did not render the first aspect of her evidence inadmissible. The trial judge's instructions to the jury were appropriate.

[19] The appellant further submits that if the warnings as to the frailties of eyewitness identification evidence were proper, the trial judge never linked it to the burden of proof or reasonable [page651] doubt standard. The standard of proof beyond a reasonable doubt applies to the whole of the Crown's case not to individual items of evidence. The trial judge did not err in his instructions with respect to identification evidence. We would dismiss this ground of appeal.

2. Did the Trial Judge Err in Admitting Expert Evidence of the Barefoot Impression in the Eagle Rock Boots?

[20] At trial, the Crown sought to introduce the evidence of Sergeant Robert Kennedy as an expert in footwear and barefoot impressions in shoes. Sergeant Kennedy testified that the areas of footprint and barefoot impression analysis are interconnected. Barefoot impression analysis is an extension of footprint impressions analysis; both rely on an analysis of the weight-bearing areas of a foot [^2].

[21] Sergeant Kennedy compares the weight-bearing areas in barefoot impressions to determine whether the foot impressions were made by the same person. In the case of barefoot impressions in shoes, Sergeant Kennedy compares the wear areas in shoes, as well as the outsoles and insoles of the shoes. Sergeant Kennedy achieves these comparisons though visual inspection, both with and without the use of a Luma light, UV light, or laser light. Sergeant Kennedy also photographs the shoes and uses enhanced photographs for comparison purposes; he also completes overlay drawings of the barefoot impressions he is comparing. Sometimes Sergeant Kennedy will compare an inked impression of a foot to a worn shoe; however, an inked impression is more helpful for comparison to a footprint in mud, blood or another substance. Sergeant Kennedy does not take or record measurements as he conducts these comparisons. However, he uses callipers in checking to see if a measurement from one footprint matches another.

[22] Defence counsel acknowledged Sergeant Kennedy's expertise in the area of footwear impressions but opposed the admission of his testimony relating to barefoot impressions. The defence did not call any evidence to dispute footprint or barefoot impression analysis as an area of expertise nor was any evidence called to refute Sergeant Kennedy's qualifications. [page652]

[23] After conducting a voir dire, the trial judge held that the evidence met the test established by the Supreme Court of Canada for the admission of expert evidence in R. v. Mohan, [1994] 2 S.C.R. 9, 89 C.C.C. (3d) 402. He then exercised his discretion and admitted Sergeant Kennedy's evidence.

[24] The appellant argues that the trial judge erred in admitting Sergeant Kennedy's evidence in relation to barefoot impressions because (i) it is not science; and/or (ii) the trial judge gave insufficient weight to its capacity to mislead the jury.

[25] After setting out a summary of Sergeant Kennedy's qualifications and testimony, we will consider the admissibility of his evidence.

Sergeant Kennedy's qualifications

[26] Sergeant Kennedy's experience and qualifications on the topics of footprint analysis and barefoot impression analysis include extensive research, international lecturing and international board certification. Since 1994, he has worked full time for the R.C.M.P. Forensic Research Services department in the area of barefoot impressions found at crime scenes.

[27] Sergeant Kennedy is the past president of the Canadian Identification Society and is the chair of both the Footwear Certification Board and the International Association of Identifications, the latter being the body responsible for the international certification of forensic footwear examiners. He has given expert testimony on both footwear and barefoot impressions in various courts around the world. His expertise in barefoot impressions forms the basis for his certification as a footwear examiner.

[28] In the area of barefoot impressions alone, Sergeant Kennedy has been qualified to testify in 25 to 30 cases around the world, including approximately five in Ontario. Most of the cases have involved barefoot impressions in shoes, such as the present case.

Sergeant Kennedy's testimony

[29] A pair of blood-spattered Eagle Rock boots was discovered inside the front hallway closet of the victim's house. Based on the size and nature of the stains, the bloodstain expert testified that the boots were close to the blood source at the time of the attack. DNA evidence established that the victim's blood was on the boots. There was also DNA on the boots from a second, unidentified person. The appellant's DNA was not found on the boots.

[30] Sergeant Kennedy's role in the investigation was to compare the barefoot impressions from various shoes known to [page653] belong to the victim, Dimitre Tzenev, Faith Veltchev and the appellant, to the barefoot impressions in the Eagle Rock boots.

[31] Sergeant Kennedy testified that:

-- the victim did not make the impressions in the Eagle Rock boots

-- Faith Veltchev did not make the impressions in the Eagle Rock boots

-- Dimitre Tzenev did not make the impressions in the Eagle Rock boots

-- the appellant likely made the impressions in the Eagle Rock boots.

[32] Sergeant Kennedy testified that it was "likely" that the person who regularly wore the Eagle Rock boots was the same person who regularly wore the green leather shoes seized from the appellant at the time of his arrest. He qualified this conclusion, however, by noting that the impression was "not clear enough to do a high probability or high likelihood". Although he testified that he could exclude both Dimitre Tzenev and Faith Veltchev as likely wearers of the boots, he agreed that the boots would have fit Tzenev.

[33] Sergeant Kennedy also testified that "somebody else could have worn this shoe, but it is not likely somebody else did". He stated that there was no indication in the impression in the boots that anyone other than the usual wearer of the boots had in fact worn the boots, but admitted that he could not eliminate the possibility that the boots had been worn by someone else for a period of "five or ten minutes to an hour". Sergeant Kennedy expected to be able to detect that a person other than the usual wearer of the boots had worn the boots after about one hour of wear.

[34] Sergeant Kennedy testified that his research suggests that feet leave distinctive impressions inside shoes and boots. His opinions in the instant case were based upon a comparison of the weight-bearing areas from shoes known to belong to each of the victim, Faith Veltchev, Dimitre Tzenev and the appellant to the foot impression in the boots. He compared the shape and placement of each toe, the separation between the large toe and the other toes, the slope and angle of the metatarsal ridge between the toe ball and the ball of the foot, the ball of the foot and its weight-bearing arch, the arch length, and the width of the heel. He testified that the sureness of his opinion varies with the clarity of the foot impression. In this case, the impressions [page654] were relatively clean and clear, although not clear enough for a "high likelihood" opinion.

[35] Sergeant Kennedy testified that until research is complete, barefoot impression analysis in shoes is not a positive means of identification but it is a valuable tool to establish the likelihood of someone wearing shoes and to eliminate particular individuals as wearers of shoes.

Analysis

[36] As noted above, the appellant challenges the admissibility of Sergeant Kennedy's evidence on two grounds. The first relates to the general field of barefoot impression analysis and requires the determination of a threshold question, namely, whether such evidence is capable of forming the subject matter of expert testimony. The second involves the application of the Mohan criteria to determine whether, in the circumstances of this case, the trial judge properly exercised his discretion in admitting the evidence.

(i) Reliability

[37] Novel scientific theories or techniques are subject to "special scrutiny"; so, too, is the novel application of established or recognized scientific techniques. The threshold question that arises in relation to the admissibility of either is well established: the court must be satisfied that the evidence proffered is capable of being the subject of expert evidence. That is, the court must be satisfied, as a threshold matter, that the proposed evidence is, indeed"science". The burden is on the party putting forth the expert, in this case the Crown, to establish its reliability on a balance of probabilities. See R. v. Terceira (1998), 38 O.R. (3d) 175, 123 C.C.C. (3d) 1 (C.A.), at p. 196 O.R., p. 21 C.C.C.; affd 1999 645 (SCC), [1999] 3 S.C.R. 866, 142 C.C.C. (3d) 95.

[38] In R. v. J. (J.-L.), 2000 SCC 51, [2000] 2 S.C.R. 600, 148 C.C.C. (3d) 487, at paras. 34 and 28, respectively, the Supreme Court of Canada noted that the admissibility of expert evidence is highly case specific and that the trial judge is to take seriously the role of "gatekeeper". The court set out the following factors that should be considered in determining threshold reliability: (1) whether the theory or technique can be and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error or the existence of standards; and (4) whether the theory or technique used has been generally accepted within the scientific community.

[39] In Terceira, supra, this court also held that threshold reliability must be determined in each case and noted that [page655] whether the results presented and the methods used are reasonably reliable are factors that may be considered in determining reliability.

[40] Although footprint impression evidence is routinely accepted by courts [^3], the same cannot be said of evidence of barefoot impressions in shoes. Barefoot impression evidence was admitted in R. v. Légère (1994), 95 C.C.C. (3d) 139, 35 C.R. (4th) 1 (N.B.C.A.) [^4]. In Légère, the appellant appealed from convictions on four counts of first degree murder. While there was other evidence connecting the appellant to the first three murders, the only evidence connecting the appellant to the fourth murder was barefoot impression evidence. In this case, a bloody footprint was found at the crime scene and a pair of boots that had been thoroughly washed was found at the same motel where the victim's car was found. The Crown sought to introduce evidence to show that the boots belonged to the accused and thus to connect the accused to the crime scene. One of the grounds of appeal was that the trial judge erred in allowing into evidence expert opinions as to the probability that the appellant's feet impressions were in the pair of boots because the expert witnesses could not offer any scientific or mathematical calculation as to the chance the impressions in the boots could have been made by someone other than the appellant. The appellants also argued that the facts upon which the experts based their opinions could only support an opinion that the impressions in the boots were similar to impressions that would be made by the appellant's feet. One of the experts was Sergeant Kennedy. Sergeant Kennedy's evidence was confirmed by Special Agent William Bodziak of the F.B.I. and Dr. Bettles, a podiatrist.

[41] In holding the evidence to be admissible, the court stated [at p. 161 C.C.C.]:

The evidence given by the experts was technical, and based upon the knowledge and experience that they had accumulated in their field. It was not put forward on the basis of any unproven scientific theory. It was admissible evidence, again to be weighed by the jury in their determination beyond a reasonable doubt of the guilt of the accused . . . [page656]

[42] In Légère, the court appears to have dealt with the cumulative expertise of all three experts. Further, there were two distinctive facts that connected the accused to the boots in issue: the accused had a callus on his right foot, caused by a cracked sole on the right boot, and there was a small nail protruding in the left boot that caused a mark in the boot and on the appellant's left heel.

[43] Such evidence was not ultimately admitted in the recent case of State v. Jones, 541 S.E.2d 813 (S.C. 2001), however. The State wished to lead evidence to connect the appellant to a pair of steel-toed boots that had allegedly left a bloody footprint at the scene of two murders. To this end, the State had both Sergeant Kennedy and Agent Derrick qualified in the area of barefoot impression analysis. The trial judge admitted their evidence; the appellant was convicted. The Supreme Court of South Carolina overturned the conviction on the basis that the trial judge erred in admitting into evidence the opinions based on barefoot impression analysis. The court held that the study of barefoot insole impressions was unreliable and that it is premature to accept that there is a science of "barefoot insole impressions".

[44] In rejecting Sergeant Kennedy's evidence, the court noted at para. 5:

While Kennedy testified that he had published several peer- reviewed articles, he also testified that he was still in the process of collecting data in order to determine which standards were appropriate for comparison purposes. Further, he candidly acknowledged that earlier work in this area had been discredited.

[45] The court also held that there was insufficient evidence to show that: (1) the technique had been published and peer- reviewed; (2) the method propounded had been applied to this type of evidence in the past; and (3) the method was consistent with recognized scientific laws and proceedings. In short, the court concluded that "it is premature to accept that there exists a science of 'barefoot insole impressions'" [^5].

[46] Barefoot impression evidence must be carefully evaluated on a case-by-case basis to determine its admissibility. Based on the current state of the jurisprudence, such evidence may be admissible where there are distinctive features of the barefoot impression that can connect the footwear to the accused's feet, as [page657] in Légère. It may also be admissible to show that an accused person has not worn a particular pair of shoes or to eliminate persons as regular wearers of shoes. The fact, however, that an accused person's footprint is "similar to" the barefoot impression in a boot or shoe ought not to be admissible as positive identification. As Sergeant Kennedy himself acknowledges, his research has not reached the stage where he can make a categorical identification from barefoot impressions.

(ii) Relevance

[47] The Mohan test requires that expert evidence meet four criteria in order to be admissible: relevance, necessity, the absence of any exclusionary rule, and a properly qualified expert. Relevance is the only criterion in issue in this appeal [^6].

[48] Relevance is a matter to be decided by the judge as a question of law. In determining relevance, the first step is to determine whether the evidence is logically relevant in the sense that it is so related to a fact in issue that it tends to establish it. If so, the judge must decide, among other things, whether its probative value is overborne by its prejudicial effect, including whether it is misleading in the sense that its effect on the trier of fact is disproportionate to its reliability. See Mohan, at pp. 20-21 S.C.R., p. 411 C.C.C.

[49] When considering the probative value of Sergeant Kennedy's evidence, it is important to keep in mind that the boots themselves were admissible. Their relevance is clear -- the boots were found inside the front closet of the victim's home which tends to establish the proposition that someone who lived with the victim was involved in his death or the effort to conceal the evidence of the murder in the garage or both.

[50] What fact in issue tends to be established by Sergeant Kennedy's evidence that the appellant was the likely wearer of the Eagle Rock boots?

[51] Apart from Sergeant Kennedy's evidence, there is no evidence that the appellant owned the boots or that they belonged to him. Those who testified on this point said that they had never seen the appellant wear the boots. All residents of the home used the front hallway closet in which the boots were found.

[52] There is no evidence that the assailant wore the Eagle Rock boots during the attack, as opposed to the boots simply being in the garage when the assault took place. The bloodstains [page658] on the upper portion of each boot are inconsistent with the boots being shielded by a pant leg. This suggests that the boots were not worn at the time of the attack. However, when Sergeant Brown was asked about the staining on the upper portions of the boots, he speculated that the staining could have occurred if the assailant wore pants with short legs when committing the assault. It should also be noted that this pattern of spatter staining was also found on another pair of shoes found in the garage, the "L.A. Gear" shoes.

[53] Sergeant Kennedy's evidence eliminated the victim and Faith Veltchev as regular wearers of the boots. However, it did not eliminate Tzenev as a wearer of the boots -- the boots fit him and, as Sergeant Kennedy himself observed, other persons could have worn the boots for a limited period of time without affecting the patterns he observed. If the killer just borrowed the Eagle Rock boots, the patterns in the boots might still only reveal the foot impressions of the owner. The boots may have been worn by someone else at the time of the murder, or the boots may have been sitting in the garage, unworn, at the time of the murder. Sergeant Kennedy's evidence cannot exclude these possibilities.

[54] In the absence of evidence that the footwear belonged to the appellant and was worn at the time of the offence, the evidence about the Eagle Rock boots logically could do little to advance the case against the appellant. This fact distinguishes the case at bar from Légère. In Légère, there was evidence connecting the accused to the boots in that not only had the accused's feet made a mark or impression on the boots but the boots had made marks on the feet of the accused as well. Further, the bloody footprint in Légère suggests that the boots had been used in the commission of the offence.

[55] In any event, in our view, the slight probative value of Sergeant Kennedy's evidence was outweighed by its prejudicial effect. The risk that the jury might be over-awed by Sergeant Kennedy's expertise was a real one in this case. The evidence occupied a day and was augmented by diagrams, a lengthy discussion of the study of barefoot analysis and technical language about anatomy and laboratory procedures.

[56] In light of the significant issues as to reliability of the evidence, its lack of logical relevance and the risk of distortion in the fact-finding process, the trial judge erred in principle in admitting Sergeant Kennedy's evidence. Having regard to this conclusion we must decide whether to order a new trial or whether to give effect to the appellant's argument of unreasonable verdict and order an acquittal. [page659]

3. Was the Verdict Unreasonable?

[57] With respect to the unreasonableness of the verdict, the appellant relies on the fact that there was no forensic evidence such as DNA or fingerprints linking the appellant to the crime, either in the garage or in the car. There was no evidence of a motive for the appellant to kill his friend and landlord. The appellant also relies on the following elements of the evidence:

-- Opportunity -- The appellant's opportunity to commit the homicide was not exclusive. Tzenev may have been at home when the deceased arrived. Nothing excluded an unknown assailant from either following the deceased into the garage or arriving in his car with him. Tzenev and Faith Veltchev had as much, or greater, opportunity to participate in the cleaning of the garage.

-- Motive -- In contrast to the appellant, who got along well with the deceased, Faith Veltchev was in an unhappy marriage. She suspected the victim had been carrying on an affair with Stefka Tzeneva, Tzenev's wife. As indicated, Faith Veltchev was the beneficiary of her husband's life insurance policy.

-- Linda Beland -- Beland's evidence, properly appreciated, did not advance the case against the appellant. Her description suggests someone other than the appellant was at the mailbox [^7].

-- Eagle Rock boots -- Sergeant Kennedy's evidence alone linked the appellant to the boots. No other witness (including the housemates and friends) had seen the appellant with these boots. The evidence shows that Sergeant Kennedy's "science" is novel and susceptible to challenge. Even if accurate or reliable, Sergeant Kennedy's evidence showed at best that (a) the boots were most likely regularly worn by the appellant; (b) they were spattered with the deceased's blood; and (c) there was unidentified DNA matter from an unknown person intermingled with the blood of the deceased. No blood was noted on the bottom treads, as might be expected if the boots were worn at the time of the [page660] attack. Finally, Sergeant Kennedy could not exclude the possibility that persons other than the usual wearer of the boots had worn the boots briefly.

-- Statements -- The statements attributed to the appellant by various witnesses (that he waited for the deceased to come home but Veltchev did not arrive) are consistent with the appellant's innocence.

-- Other suspects -- There was a body of evidence which could support the inference that Faith Veltchev or Dimitre Tzenev (or both) were involved in the murder of Veltchev. Faith Veltchev's motive has been discussed.

[58] If Tzenev also suspected that the victim was having an affair with his wife, Stefka, he would have had a motive to kill him. In addition, a hand drawn map was found in Tzenev's room. It showed the school Tzenev attended and the surrounding area including the mall where the victim's car was located -- a six-minute walk from the school. Tzenev said the map was a school project. Tzenev also had a visible scratch on his arm. When questioned by police he said it had been caused by a slip and fall as he chased the house cat. Although Tzenev would not have had the opportunity to clean up the garage prior to leaving for school, there is no evidence that the cleanup occurred immediately after the killing.

[59] There were inconsistencies between the evidence of Faith Veltchev and Tzenev. Faith Veltchev said that she had called the police to report her husband's disappearance Wednesday night. Tzenev said that she was worried and had begun calling people to ask if they had seen her husband. Faith Veltchev's account is not supported by police communications transcripts; her evidence was also inconsistent with the statement she gave to the police on Thursday night after the victim's body was found. Both Faith Veltchev and Tzenev said that on Thursday they stayed home from work and school respectively. Tzenev's account of how he passed the day and whether he was alone with Faith Veltchev differed substantially from her evidence. Although Tzenev was initially charged with the murder of the victim, he was discharged at his preliminary hearing.

[60] A verdict will be unreasonable if a properly instructed jury acting judicially could not reasonably have reached that verdict. The court, while accepting the advantage that the trier of fact has in hearing and seeing the witnesses, must to some extent re-examine and re-weigh the evidence but is not entitled merely to substitute its view of the evidence for that of the trier of [page661] fact. In this case, our reweighing of the evidence has taken into consideration the conclusion that the barefoot impression evidence should not have been admitted.

[61] An appellate court may scrutinize the evidence more closely in a case involving eyewitness identification evidence as opposed to a case that turns on the credibility of the evidence of witnesses. See for example R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, 143 C.C.C. (3d) 1, at pp. 405-11 S.C.R., pp. 20-25 C.C.C.; see also R. v. G. (A.), 2000 SCC 17, [2000] 1 S.C.R. 439, 143 C.C.C. (3d) 46, at pp. 443-45 S.C.R., p. 51 C.C.C. In this case, however, the Crown's case against the appellant is dependent on the totality of the circumstantial evidence and does not depend solely on the positive aspects of the identification evidence of a single witness. Based on the time Ms. Beland said she was at the mailbox, the distinguishing features of black hair and beard of the man she said she saw, and the compelling circumstantial evidence that the killer was a resident of 82 Newport Crescent, Ms. Beland's evidence has the effect of eliminating the other residents in the house as being the person seen driving a grey four-door car away from the vicinity of 82 Newport Crescent. In addition, the evidence of Mr. Deschambault, the postman, corroborated Ms. Beland's evidence with respect to the man having black hair and a beard. Even omitting the barefoot impression evidence the totality of the evidence was such that a reasonable jury properly instructed could convict. If, as the appellant suggests, more than one person may have been involved in killing the victim, that would not render a verdict against the appellant unreasonable.

CONCLUSION

[62] For the reasons given, we would allow the appeal, set aside the verdict of guilt and order a new trial.

Appeal allowed.

Notes

[^1]: It is assumed that by the term "Hindu person", Ms. Beland meant to refer to a person from India.

[^2]: The terms "footprint impression" and "barefoot impression" have often been used interchangeably. To be consistent with the language used by those working in the field and to avoid confusion, we use the term "footprint impression analysis" to refer to any impression left by a foot (whether the foot was in a shoe or boot or bare) in a substance, and "barefoot impression" to refer to the impression left by a foot inside a piece of footwear.

[^3]: See, for example, R. v. Ferguson (2000), 142 C.C.C. (3d) 353, 35 C.R. (5th) 290 (Ont. C.A.) in which Laskin J.A., in dissent, upheld the admissibility of Sergeant Kennedy's footprint impression evidence, which dissent was endorsed by the Supreme Court of Canada at 2001 SCC 6, [2001] 1 S.C.R. 281, 152 C.C.C. (3d) 95 although the Supreme Court did not explicitly endorse Justice Laskin's dissent on the issue of footprint impression evidence.

[^4]: See also R. v. Arcuri, [1998] O.J. No. 267 (QL)(Prov. Ct.) in which barefoot impression evidence was admitted.

[^5]: See also State of North Carolina v. Berry (2001), 143 N.C. App. 187, 546 S.E. 2d 145 to the same effect. See also R. v. Sood, [1997] O.J. No. 5417 (QL)(Gen. Div.) where barefoot impression evidence was rejected both because of a lack of expertise and because the court was not satisfied of its scientific validity.

[^6]: In relation to the fourth criterion, the issue is not whether Sergeant Kennedy is a qualified expert but whether the field of barefoot impression analysis is acceptable science, a matter dealt with above.

[^7]: The appellant also argued that he had access to the mailbox key hanging in the kitchen, and would not have needed to grab the mail at the community mailbox and then leave without opening the box. However, the mailbox key that normally hung in the kitchen was not there that day, it was found in the victim's pocket, as a result, we have not included this with the other items listed by the appellant.