Court File and Parties

COURT FILE NO.: CR-24-116-00 DATE: 2024-10-01

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: His Majesty the King v. Stephan Parr and Amy Rose-Podnar

HEARD: September 27, 2024

BEFORE: Fitzpatrick J.

COUNSEL: H. Bracken, D. Pierce, for Crown I. McCuaig, for Stephan Parr S. Jeethan, for Amy Rose-Podnar

Endorsement on Adidas Evidence

[1] Mr. Parr applies to have certain evidence excluded from his upcoming jury trial scheduled to commence Tuesday October 1, 2024.

[2] The evidence at issue is a police photograph taken at the scene of the murder referred to by the Crown as “Impression F5”. Impression F5 was located in the snow a short distance from the body of the victim. Also, there is a video and a still photograph of wet shoe impressions on a tile floor where it was agreed Mr. Parr was shown standing about an hour before the murder at issue is alleged to have occurred. Further the Crown proposes to tender evidence of Tim Armstrong, a Loss Prevention manager from Adidas to give product evidence about CF Lite Racer shoes, a product Adidas sold in Canada from May 2018 until at least January 12, 2019, the date of the murder. The focus of that evidence from Mr. Armstrong will be the alleged unique sole of the CF Lite Racer shoes.

[3] Any shoes worn by Mr. Parr on or around January 12, 2019, were never seized by the police. The Crown seeks to have the jury compare Impression F5 with a product drawing of the CF Lite Racer shoes to draw the inference that Mr. Parr was present at the scene of the murder on January 12, 2019.

[4] Mr. Parr submits the shoe print evidence should be excluded from the upcoming trial as its prejudicial value outweighs any probative value it may have.

[5] Mr. Parr also has submitted a report dated August 16, 2024, from Tyler Lowry an OPP officer who is a member of the Investigation and Support Bureau, Forensic Identification Services Thunder Bay Unit.

[6] I/C Lowry is on the Crown witness list and will provide expert opinion evidence to the jury in respect of tire track evidence found at the scene of the crime. However, the Crown indicates it will not be calling any expert evidence, including I/C Lowry on any footwear impressions.

[7] After considering both the written and oral submissions of the parties I agree with submissions of Mr. Parr, that Mr. Armstrong’s evidence should be excluded from the trial. It does not provide evidence that is probative to the question of whether Mr. Parr was present at the scene of the murder. I say that for a number of reasons. First Mr. Armstrong’s evidence about the CF Lite Racer shoes is premised on hearsay evidence of an unidentified “Technical Engineer” employed by Adidas who in February 2024 advised Mr. Armstrong:

“it is with high certainty that the suspect is wearing a pair of CF Lite Racer, also the footprint suggests similar tread design”

[8] Mr. Parr is not prepared to admit he was wearing a pair of CF Lite Racer shoes on January 12, 2019. Absent this admission, the evidence of Mr. Armstrong is predicated on a factual assumption that has yet to be established. I put this dilemma to the Crown during argument. The Crown proposed the Court hold a Leaney voir dire where this as yet unknown technical engineer can come to provide recognition evidence as to why he or she is able to say “with high certainty” that Mr. Parr was shown to be wearing CF Lite Racers.

[9] The fact this problem has arisen on the Friday before this lengthy jury trial is set to commence on the next Tuesday is very problematic.

[10] Mr. Parr’s response to the Crown request for a Leaney application, was that it too was unnecessary. This is because whatever the technical engineer might say, they would be unable to comment in any way about how long Mr. Parr had owned the shoes and how the sole of his shoes may or may not have been worn in any particular way that would possibly impact how the shoe was impacting the ground. This would be important information to have if a fair comparison was to be made about Impression F5.

[11] Also I note the following observations of I/C Lowry:

“it is acknowledged that impression evidence comparisons cannot provide a conclusion that would exclude all other footwear. This particular comparison does not follow the entirety of the process as the known footwear only has a schematic of the sole pattern provided by the manufacturer and not the actual shoe”

[12] It also appears from I/C Lowry’s report that the F5 impression is only a partial impression with poor clarity in several areas. I/C Lowry’s report notes that while there is good clarity in the midsection of the forefoot, the shoe perimeter is not well defined besides part of the inner edge of the impression. There are other discrepancies noted by I/C Lowry which include some that suggest Impression F5 has characteristics consistent with a right forefoot impression over a left footwear impression.

[13] I appreciate I/C Lowry has not yet been qualified as an expert in this matter. Also, the Crown does not intend to call such expert evidence in respect of footwear impressions. However, I cannot ignore these observations from a police officer who is trained in forensics about the deficiencies of Impression F5. I agree with the submissions of the defence that these deficiencies will impede a lay jury member from being able to properly do a side by side comparison of the F5 impression with a photo of the wet shoe prints. I find that the deficiencies that impair the ability of the police officer to make any definitive conclusions about the impression will also have the same impact on lay members of the jury. This is even more so the case of the ability of a lay person to make draw any meaningful conclusions from a side by side comparison of Impression F5 with the shoe sole evidence provided by Adidas which has virtually no probative value as it shows only a new shoe, with a sole of no wear and of unknown size.

[14] In the circumstances, I agree with the defence that the evidence sought to be excluded is unnecessary and will distract the jury and will potentially lead it to lines of impermissible reasoning. A corrective instruction with regard to any weight to be given this evidence which I now agree is not probative and highly prejudicial would not be a proper response to this evidentiary problem. Excluding the Adidas representative’s evidence and not allowing a Leaney voir dire for the Technical engineer is appropriate.

[15] I am also concerned that there will be evidence provided at trial that more than one person was at the scene of the murder. I understand that the Crown will not be introducing any other evidence related to shoes or shoe impressions at this trial. Accordingly, I see the introduction of the F5 impression as carrying a much higher risk of prejudice than being of any material or probative value. The jury would have no way of realistically determining which person’s shoe made Impression F5.

[16] Accordingly, I order the Crown should not attempt to put to the jury any side by side evidence of Impression F5 with any other evidence purporting to be shoe imprints made from shoes even allegedly worn by Mr. Parr.

[17] Defence Application granted.

“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick

DATE: October 1, 2024