Court File and Parties

Court File No.: CR-18-946-00 Date: 2019 03 19 Ontario Superior Court of Justice

Between: Her Majesty the Queen E. Taylor and J. Sone for the Crown

- and -

David Baichoo L. Shemesh and M. Little for the Defendant

Heard: January 28 to February 15, 2019

Ruling

D.E. HARRIS J.

[1] The Crown tenders foot impression evidence from the scene and the defence objects to its admission. After a brief voir dire and argument, I ruled it admissible. These are my reasons.

[2] The accused is charged with first degree murder. The allegation is that he drove into an underground parking lot in his motor vehicle, followed closely by the deceased in his vehicle. They parked side by side. Soon after, the deceased was stabbed. He ran up towards the exit of the parking lot but collapsed after travelling about 40 metres. He died on the scene of extensive stab wounds.

[3] One of the live issues at trial is identity. Was the accused the person who was parked next to the deceased in the underground lot and stabbed him to death?

[4] The video is not of sufficient clarity to identify the accused or his car but there is circumstantial evidence putting him at the scene. A few minutes after the homicide, he is positively identified at a Petro Canada gas station not far away. He is driving a turquoise Ford Focus hatchback, licence plate number BXXE 902. This seems to be a car similar to the one seen in the poor quality underground garage video. There is what appears to be a considerable amount of blood on the driver’s side back corner of the vehicle. It vanishes after the defendant’s car goes through the car wash.

[5] When arrested a few days later, the deceased’s DNA from blood was positively identified in the crevices of the rear bumper. Completing the evidence of presence at the scene, in addition, the accused’s fingerprint was found in a box found lying next to the deceased’s car.

[6] The subject matter of the legal argument is a partial foot impression found in blood in the area in which the deceased was stabbed, just out of camera range in front of his car. His car was parked front first and the accused’s was parked right next to it, but was backed in. The drivers’ doors were right across from each other.

[7] The ultimate inference sought to be drawn is that the accused’s shoes as depicted in a Canadian Tire video about 20 minutes before the killing could have created the partial foot impression in the garage.

[8] The issue has several factual components. First, besides impressions of the deceased’s Nike shoes found in the copious blood at the scene, there was the impression of a different shoe found in the blood in the garage. Officer Hofstetter took the best quality impression of the other shoe—there were several—and with the assistance of chemicals to enhance the contrast and to identity the liquid in it as blood, was able to bring it up relatively clearly. It is not of the entire shoe, however. Officer Hofstetter took a picture of the enhanced impression. This photograph was sought to be tendered in front of the jury.

[9] The second element was a comparison shoe having a similar tread pattern. Officer Hofstetter submitted his photograph of the foot impression to a foot impression databank in Ottawa. There were no hits. Officer Hofstetter then sent the impression to other police services in Ontario. Toronto police got back to him saying they had a shoe with a similar tread pattern.

[10] Officer Hofstetter travelled to Toronto and took pictures of the shoes. Photographs of the uppers and soles of the shoes are to be tendered by the Crown. These shoes were “workload” brand shoes which at least at one time were sold exclusively by Walmart.

[11] Officer Hofstetter’s proffered expert evidence is that the bottoms of the Toronto shoes had similar “class characteristics” to the impression in the garage. The partial impression in the garage shows repeating horizontal hexagonal shapes with crosses in the middle of them. The shoe photographed in Toronto also has horizontal hexagonal shapes with crosses in them.

[12] The final factual element is a video of the accused at a Canadian Tire a short time—approximately 15 minutes—before the killing. The clarity of the video is good. The uppers of his shoes are visible at times. However the shoes are a dark colour and cannot be seen in detail. These uppers are said to bear some similarly to the uppers of the Toronto shoes. Det. Hofstetter did not testify with respect to this aspect, the intention being that the Crown would argue it in their closing address to the jury.

[13] The circumstantial circle is closed by the similarity between the bottom of the Toronto shoes and the impression from the scene. The conclusion sought to be drawn is that if the uppers of the Toronto and the accused’s shoes are similar, the bottoms might well be similar as well. The accused’s shoes could therefore have created the foot impression of the repeating hexagons with the crosses inside of them in the garage. This would place the accused directly at the site of the stabbing.

[14] The steps are:

1. From the partial foot impression of the sole of a shoe in the underground to the similar tread pattern of the Toronto “workload” brand shoes;
2. From the uppers of the Toronto shoes to the similarity of the uppers of the accused’s shoes in the Canadian Tire video; and
3. From the similarity of the uppers of the Toronto and Canadian Tire shoes to the likely similarity of their tread pattern;
4. From the likely tread pattern of the accused’s shoes to the similarity of the partial shoe impression found at the murder scene.

[15] The defence argues: (1) Officer Hofstetter was not properly qualified to testify as an expert witness with respect to foot impressions; and (2) the entire line of reasoning is irrelevant and inadmissible.

[16] The key flaws which under (2) render the entire chain of relevance too weak to gain admissibility, according to the defence, are two: (a) based on the Canadian Tire video as it depicts the uppers of the shoes worn by the accused, the accused’s shoes cannot be sufficiently identified with the Toronto shoes; and (b) the tread of the Toronto shoes (and hence the tread of the shoes said to be worn by the accused) has not been demonstrated to have any real uniqueness such that the identification with the foot impression found in the garage carries sufficient probative value.

(1) Expert Evidence

[17] The defence argument against admissibility as expert evidence was based on two of the Mohan criteria. First, although conceding his qualifications in fingerprint analysis and blood spatter, it was argued that Detective Hofstetter lacked the proper qualifications to testify with regard to foot impressions. Second, his evidence was not necessary as it did not extend beyond the knowledge of a typical layperson: see R. v. Mohan, [1994] 2 S.C.R. 9.

Officer Hofstetter’s Expertise

[18] With respect to his qualifications, Officer Hofstetter testified that he has been a forensic identification officer now for 15 years. He has taken numerous courses in forensic identification, many of which had a footprint impressions component. In 2007, he took an advanced course in footprint analysis and, in 2009, he took a course which had a significant footwear component. Detective Hofstetter has been qualified in court several times in the area of footprint analysis.

[19] He testified that the methodology behind footprint comparison is similar to that with respect to fingerprints. He is not certified under the relevant Canadian organization but is certified under the international organization. He has been certified since about 2005. Although no report was prepared for court with respect to this case, Officer Michael Taylor, who is said to be the most knowledgeable member of Peel Regional Police with respect to foot impressions, peer reviewed his work and came to the same conclusion.

[20] Officer Hofstetter has significantly more knowledge than a lay person with respect to foot impressions. He is able to develop impressions with chemicals as he did in this case. Officer Hofstetter has experience and skill with the footwear databank in Ottawa. He is significantly more skilled than a layperson would be in recognizing tread patterns through both his training and his experience.

[21] As Justice Doherty has said,

28 Expert evidence comparing footprint impressions has been received in criminal cases in this province for at least 25 years: See e.g. R. v. Howard (1983), 3 C.C.C. (3d) 399 (Ont. C.A.), at 415-17. R. v. Hall (2004), 193 O.A.C. 7 (C.A.), at para. 28.

[22] In my view, Officer Hofstetter is a properly qualified expert in this field: Mohan, at para. 31; R. v. Bingley, [2017] 1 S.C.R. 170, at para. 22; R. v. Vassel, 2018 ONCA 721, 365 C.C.C. (3d) 45, at paras. 89-90.

Necessity

[23] Necessity is also met in this case. The necessity of Officer Hofstetter’s evidence is not obviously on the scale of some expert evidence. Medical evidence, for example, such as the pathology evidence in this case, is so far removed from a lay person’s knowledge as to be indispensable on a trial. The understanding of human anatomy required extends well beyond a layperson’s store of knowledge.

[24] In this case, the tread comparison done by Officer Hofstetter essentially consists of comparing geometric figures from the foot impression at the scene and the comparator shoe in the possession of the Toronto police. Both had horizontal repeating hexagonal shapes with little or no break in the pattern. It could be argued that the jury was in an equally good position to make this comparison. But Officer Hofstetter has much more experience and, in addition, has training in making these comparisons. It is, as he testified, much like making fingerprint comparisons although not quite as difficult. Nonetheless, in this area, study and experience are a major assistance.

[25] It was important that Officer Hofstetter also testify to explain how he developed the impression at the scene. Clearly, a layperson could not have done this. Accessing the databank also takes some skill and knowledge beyond that possessed by layperson.

[26] Necessity should not be adjudged by too strict a standard: Mohan, at para. 26; R. v. K. (A.) and K. (N.) (1999), 45 O.R. (3d) 641 (Ont. C.A.), at p. 265; R. v. Currie (2002), 166 C.C.C. (3d) 190 (Ont. C.A.), at p. 214; R. v. M. (B.) (1998), 42 O.R. (3d) 1, at para. 89.

[27] The oft-cited danger posed by an overly lax approach to necessity is the overvaluation of the evidence based on an aura of expert exclusivity. The subject matter may be inaccessible to the jury. There is a real risk that they will simply defer to the expert and adopt what he or she says with no independent evaluation: R. v. D. (D.), [2000] 2 S.C.R. 275, at paras. 53-54.

[28] That danger is not significant in this case. The closer the evidence is to the knowledge of a layperson, the less risk it poses to distort and subvert the fact-finding process. Officer Hofstetter has more knowledge and expertise than the layperson but the issue is not scientific, hifalutin or the type of expert evidence, like gang evidence about teardrop tattoos, which the jury cannot possibly have any real knowledge of: see R. v. Abbey, 2017 ONCA 640, 140 O.R. (3d) 40. The comparison of the impression with the Toronto shoes, said to be similar to the accused’s, is grade school geometry. The jury can to a significant extent evaluate this for themselves. Officer Hofstetter said that the patterns are similar. He has the significant advantage of experience in doing comparisons. But the jury is well-equipped to make their own assessment. They will not be deterred from doing so by the testimony of Officer Hofstetter.

(2) The Relevance of the Evidence

[29] I will first deal with the issue of whether the uppers of the accused’s shoes in the Canadian Tire video are sufficiently similar to the uppers of the Toronto shoes.

[30] Both shoes have sufficient distinguishing characteristics to accumulate more than minimal probative value.

[31] A last of a shoe is the mold that is used to contour a shoe. One of the key parts of a last, perhaps the most distinctive part, is the toe. The toe of the Toronto shoe and the accused’s shoe shown in the video are both very rounded and very broad. The tongue is not pressed against the foot but protrudes prominently. Both have a back tab on the heel for use in helping putting the shoe on and taking it off.

[32] Far from unique, nor is the shoe exceedingly common. The uppers characteristics contribute to a specific look and type of shoe. The Crown is not arguing that the shoes in the video can be definitely matched to the impression at the murder scene. In fact, defence counsel was able to come up with at least two other shoes with similar uppers and a similar tread pattern, albeit one of them was a slightly different model of a “workload” make of shoe, the same make as that of the Toronto shoes.

[33] With respect to the tread evidence, the evidence is being tendered to show only that the accused could have made the underground garage impression. Out of the entire universe of men’s footwear including for example, cowboy boots, desert boots, dress shoes, sneakers, loafers and countless others, the accused was wearing a pair of shoes which could conceivably have made the impressions in the underground garage. Taken cumulatively with the other circumstantial evidence, this assists to prove his presence at the scene.

[34] It is true the databank evidence was not as clear as it could have been. The officer was unable to say how many shoes are in the databank. That is a critical issue. If there are only a few hundred shoes in the databank, it could not be shown with any confidence that the shoes and the treads are somewhat distinctive. The uniqueness of the shoes is a vital element of the Crown’s argument to invest probative value in this evidence. If the shoe was a common sneaker for example, the evidence might not be sufficient to cross the admissibility threshold.

[35] But it is open to the jury on all the evidence to find that the sole tread is not common. The databank likely contains thousands of shoes based on how it has been compiled. Officer Hofstetter testified that participating manufacturers send examples when new models come out every year. Officer Hofstetter, in reaching out to other police departments, only found the Toronto one with a comparable tread pattern. Furthermore, defence counsel came up with several shoes with similar uppers and soles but there were only a few, not a great many.

[36] Defence counsel relied on the case of R. v. Portillo (2003), 176 C.C.C. (3d) 467 (Ont. C.A.). However, in that case, a link in the circumstantial chain of reasoning was broken. The prosecution was unable to connect the accused to the shoes which had made the impression in question. The shoes were found in the vicinity of his apartment but in an area to which many other people had access. That was held not to be good enough to draw the inference that they were his.

[37] There are weaknesses here too but they are of a different variety. None of them are such as to be unable to bear the weight the Crown intends to put on them.

[38] These are the reasons why I held that Officer Hofstetter was entitled to testify as an expert and that his evidence and the shoe evidence was relevant and admissible.

D.E. HARRIS J. Released: March 19, 2019