Court File and Parties

COURT FILE NO.: CR-24-116-00 DATE: 2024-12-09

SUPERIOR COURT OF JUSTICE – ONTARIO

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

HEARD: October 9 and 10, 2024

BEFORE: Fitzpatrick J.

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

Judgment on Applications to Exclude Certain Evidence

[1] During the trial of this matter, the accused made separate mid-trial applications concerning the admission of certain evidence as part of the Crown’s case. These were argued over several days. I gave oral rulings which excluded certain text message evidence between Ms. Rose-Podnar and Mr. Lozoomi from the trial. In addition, I made an oral ruling that a Crown witness should not expressly refer to the fact of timing and number of cell phone calls made between Dennis Crupi and Mr. Parr, and by Dennis Crupi to Ms. Rose-Podnar, for the period of January 13, 2019, at 15:32 until January 14, 2019, at 00:18. I advised that written reasons would follow for those decisions. The trial has now concluded. I see it as most efficient to combine my reasons for both decisions in one judgment. Here are my written reasons for those decisions.

Background

[2] Very close to midnight on January 12, 2019, the body of Samatar Warsame was discovered on the shoulder of Highway 527 in the Municipality of Shuniah, near Thunder Bay. Mr. Warsame had been shot three times in the head. His body was found with one of his wrists tied up with a green ethernet cable and another CAT 5-like white cable wrapped loosely around his legs. It appears he was bound at the time he was shot. The police were alerted to the presence of Mr. Warsame’s body in the first few minutes of January 13, 2019. A murder investigation was immediately commenced by the Ontario Provincial Police.

[3] The coroner who did the autopsy on Mr. Warsame opined that he was alive immediately before he was killed by the three gunshots. Several individuals were subsequently arrested and charged with first degree murder, including Stephan Parr, Amy Rose Podnar, and Kaveh Lozoomi-Gamroodi (“Mr. Lozoomi”). The indictment was severed in respect of Mr. Lozoomi, and his trial is expected to take place late in 2025.

[4] There has been evidence led at this trial suggesting that Mr. Lozoomi and Mr. Warsame were partners in the Thunder Bay drug trade during 2018. The relationship soured in the fall of 2018 and the two had a falling out. The murder of Mr. Warsame occurred shortly after Mr. Lozoomi was seen attempting to enter safe house locations where it was suspected that Mr. Warsame kept money and drugs.

[5] Evidence at this trial related to Ms. Rose-Podnar includes DNA found on the left ankle of Mr. Warsame and on the plug area of the green ethernet cable that was used to bind him. The trial evidence also includes numerous records taken from cell phone towers in and around Thunder Bay, which indicate that telephone calls and text messages were going back and forth between a cell phone associated to Ms. Rose-Podnar and a cell phone associated to Mr. Lozoomi throughout January 12, 2019, and into the morning of January 13, 2019.

[6] Evidence in this trial related to Mr. Parr included DNA found on the green ethernet cable used to bind Mr. Warsame’s wrist and on a white cable found loosely wrapped around Mr. Warsame’s leg. In addition, DNA associated to Mr. Parr was found on Mr. Warsame’s right ankle. Video evidence from CCTV was entered into evidence showing Mr. Parr driving a blue Dodge Ram truck around different places in Thunder Bay on January 12, 2019. This was relevant, as there was also evidence that the blue Dodge Ram was present at the scene of the murder later, on the evening of January 12, 2019. Mr. Parr did not own the vehicle. It was owned by Dennis Crupi. Mr. Crupi’s family had surreptitiously placed a tracking device on the truck. This allowed the police to collect evidence during their murder investigation showing the location of the truck around Thunder Bay, and ultimately elsewhere, on January 12 and 13, 2019.

[7] Furthermore, there was voluminous evidence purporting to show where a cell phone associated to Mr. Parr was physically present at various times in Thunder Bay on January 12, 2019. This evidence came from cell phone tower pick-ups. Lastly, there was video evidence of Mr. Parr and Mr. Lozoomi entering and walking around a multi-residential building located at 625 Fulton Avenue, where Mr. Warsame may have been staying or had access to a unit. This video was recorded at around 10:30 pm, about an hour and a half before Mr. Warsame was apparently shot on the highway on the outskirts of Thunder Bay.

The Application

[8] The defence applications came mid-trial and relatively near to the end of the Crown’s case. The focus of the applications were two distinct types of communications exchanged between the accused and other persons in the day after Mr. Warsame was murdered. The relief sought was also different with respect to the two different types of communication.

[9] The first application, made exclusively by Ms. Rose-Podnar, dealt with seven text messages. These messages are attached as Schedule 1 to this endorsement. In this trial, these seven messages are the only electronic communications for which the Crown sought to tender the actual content of relevant electronic messages. The texts were all sent by a cell phone admittedly associated to Ms. Rose-Podnar and received by a cell phone associated to Mr. Lozoomi.

[10] Ms. Podnar applied to have these seven text messages excluded from the trial.

[11] The second application was made jointly by the accused and dealt with phone records that had been entered into evidence in voluminous spread sheets contained in power point evidence tendered by the Crown. Initially, the Crown had identified eight calls either to or from Mr. Parr and Mr. Crupi and five calls either to or from Ms. Rose-Podnar and Mr. Crupi. These calls occurred between about 3:30 in the afternoon of January 13, 2019, and 18 minutes after midnight on January 14, 2019. The application ultimately focused on two calls involving Mr. Crupi and Mr. Parr, and one call involving Mr. Crupi and Ms. Rose-Podnar. The circumstances and particulars of the calls had not been discussed in any vive voce testimony of any witness at the point when the defence brought their application.

[12] In respect of this second application, the defence sought only a ruling that any subsequent Crown witnesses not specifically refer to these three calls in their testimony.

Discussion

[13] I will first address the submissions of counsel for Ms. Rose-Podnar and the Crown concerning the application to exclude the seven text messages.

[14] The Crown set out in its written materials the proposition for which this evidence was not sought to be tendered: “The Crown does not intend to suggest to the jury that the seeking of instruction after the fact provides a foundation for the finding that Podnar took instruction from Lozoomi to commit the kidnapping that led to Warsame’s murder”.

[15] Rather the Crown submitted the following: “[T]he Crown does, however, intend to suggest that the frequency of contact demonstrates a level of communication and coordination with Lozoomi that surpasses that of an individual looking to buy drugs”.

[16] The Crown submitted that the evidence was admissible, and that Ms. Rose-Podnar’s concerns with the evidence went to its weight, not its admissibility. The Crown conceded that it was not evident from the texts what purpose Ms. Rose-Podnar had for allegedly seeking instructions from Mr. Lozoomi.

[17] Ms. Rose-Podnar argued that the texts were not probative of any proposition that was dispositive of any issue at trial. Alternatively, even if the evidence was relevant and otherwise admissible, Ms. Rose-Podnar argued the prejudicial effect of the text messages overbore any probative value.

[18] I agreed with the submissions of counsel for Ms. Rose-Podnar that the seven text message evidence should be excluded. I said so for the following reasons.

[19] Ms. Rose-Podnar characterized this evidence as “extrinsic misconduct evidence”. The texts were also sent after the murder, which could allow this evidence to be described as “post offence conduct”. This distinction may matter in the context of which party would have borne the onus on this application. As constituted, the application was framed as a “post offence conduct” application. Ms. Rose-Podnar was late in bringing this application. In argument, this delay was not raised. In context, I thought it best to focus on the merits of the relevance and admissibility questions, rather than dismissing the application out of hand on a technicality.

[20] I did not see the text message evidence - standing alone - as being evidence of obvious extrinsic misconduct. On its face, this evidence was simply a series of text messages, which are not illegal to send, asking questions about things that are not illegal to do, all of which were unanswered by Mr. Lozoomi. However, in my view the fact that the texts went unanswered impacted their admissibility, as this created a “context vacuum” for the messages. Furthermore, the defence submitted that it was the possible inferences that could be drawn from Ms. Rose-Podnar texting “a bad guy” – i.e., Mr. Lozoomi – that pushed these messages into the category of “extrinsic misconduct”, which is presumptively inadmissible. I agreed with this submission.

[21] I was mindful of Watt J.A.’s observations in R v. Luciano, 2011 ONCA 267, 267 C.C.C. (3d) 16, at paras. 223–225:

223 Evidence of extrinsic misconduct is circumstantial evidence. It includes, but is not limited to things said and done after an offence has been committed. We often label this as evidence of "post-offence conduct" or "after-the-fact" conduct". Unfortunately, our fondness for labelling obscures the true character of this evidence, assigns it an undeserved place of prominence in final instructions, invites appellate fission and inhibits a clear-eyed and principled evaluation of its role in proof of the prosecution's case.

224 Evidence that falls within the descriptives "post-offence" or "after-the-fact" conduct has no mythical or magical quality inherent in it or about it. It is neither more nor less than an item of circumstantial evidence, a link in the chain of the prosecutor's proof, that involves retrospectant reasoning to connect an accused to an offence.

225 When evidence of what an accused said or did after an offence was committed discloses extrinsic misconduct, the evidence bumps up against the general rule of exclusion discussed earlier. But the evidence may gain entry by exception if its probative value exceeds its prejudicial effect. [Citations omitted].

[22] Considering this direction from the Court of Appeal, I considered the merits of the application on the basis that, while the evidence was that of post offence conduct, when contrasted with the Crown’s position that these texts were part of a continuum of pre- and post-murder conduct, the only reasonable inferences that could be drawn by a jury were that the texts were evidence of extrinsic misconduct, which is presumptively inadmissible.

[23] There was no suggestion in the evidence that this murder was part of any preconceived plan that would see Mr. Warsame shot and then the shooters quickly escaping Thunder Bay for the GTA. There was no suggestion in the evidence that Ms. Rose-Podnar had been present where and when Mr. Warsame was apparently moved in a vehicle from somewhere in Thunder Bay to the place on Hwy 527 where he was shot. I found that these aspects of the evidence made the texts look more in the nature of post offence conduct; they occurred after a murder where Ms. Rose-Podnar had not been present, and where there was no suggestion that she took part in any particular plan regarding the killing. To me, this militated in favour of treating the conduct as “post offence conduct”, but only insofar as it contrasted the evidence from the Crown’s continuity of events theory. To my mind, post offence conduct is clearly separate from the events of an offence, and, in this case, it was a more understandable description that did not require any speculation. I saw the Crown’s theory – that the sending of the texts was part of a continuum – as requiring a great deal of speculation on the part of the jury, based on the evidence. This is because no other electronic evidence tendered at the trial contained any content. Without content, context is impossible to determine. Without context I saw it as impossible to draw an inference that the evidence represented a “continuum” of anything without speculation. In any event, I saw resolution of this first portion application as requiring an analysis weighing probative value versus prejudicial effect of the text evidence.

[24] I appreciated counsel providing the Court with several authorities setting out useful governing principles concerning the laws of evidence. They were of great assistance in resolving this matter.

[25] The relatively recent decision of the Ontario Court of Appeal in R v. Atienza, 2023 ONCA 537, at para. 91, contains the following helpful direction:

91 The Supreme Court considered the principles applicable to admissibility of evidence of post-offence conduct in Calnen. The treatment of evidence of post-offence conduct is "highly context and fact specific". The threshold to establish relevance is not high. Evidence, including evidence of post-offence conduct, will be relevant if it has "some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would be in the absence of that evidence." Post-offence conduct is circumstantial evidence. As such, it allows a trier of fact to draw inferences (or choose not to do so) from the conduct relying on logic, common sense, and experience. The inferences must be reasonable based on human experience. Whether an inference is reasonable in any particular case will depend on the nature of the conduct, what is sought to be inferred from the conduct, the positions of the parties, and the whole of the evidence. The existence of explanations other than guilt for post-offence conduct does not generally render such evidence as having no probative value.5 In most cases, it is for the jury to assess the evidence of post-offence conduct in the context of all of the evidence, and consider what inference, if any, to draw from it in the context of any explanations. [Citations omitted].

[26] In R v. Ansari, 2015 ONCA 575, 330 C.C.C. (3d) 105, at paras. 110–113, Watt J.A. lays out useful governing principles for assessing this evidence:

110 The assessment of probative value involves consideration of the strength of the evidence; the extent to which it supports the inferences the proponent seeks to have drawn from it; and the extent to which the matters the evidence tends to prove are at issue in the proceedings.

111 An assessment of prejudicial effect should take into account:

i. the degree of discreditable conduct disclosed by the evidence;

ii. the extent to which the proposed evidence may support an inference of guilt on the sole basis of bad character;

iii. the extent to which the evidence may confuse issues; and

iv. the ability of the accused to respond to the evidence.

112 A trial judge's decision about where the balance settles between probative value on the one hand and prejudicial effect on the other is accorded a high degree of deference by appellate courts. Where a trial judge has applied the proper principles, weighed the probative value of the evidence and its potential prejudice and decided the issue of admissibility, appellate courts will not lightly intervene.

113 A final point concerns prophylactic measures undertaken by the trial judge to reduce the risk of reasoning or moral prejudice. A limiting instruction that explains the proper use of this evidence and enjoins prohibited reasoning is of critical importance in ensuring a fair trial. [Citations omitted].

[27] The threshold for the admission of this evidence was not high. The evidence was probative of the proposition that Ms. Rose-Podnar was in relatively regular contact with Mr. Lozoomi. However it was the lack of content for the entirety of what the jury had to consider is what drove me to consider as persuasive the defence arguments that this evidence would be used impermissibly by the jury and should be excluded.

[28] Mr. Lozoomi was a drug dealer. Counsel for Ms. Rose-Podnar made no secret of referring to her client as a drug user. Therefore, this level of communication had a very strong possibility of being considered by the jury as evidence of extrinsic misconduct because that is all the jury possibly could know about any possible relationship between these two people. According to the evidence of Mr. Joiles, it could be inferred the murder in context of a turf war between Mr. Lozoomi and Mr. Warsame. The mere fact that Ms. Rose-Podnar was regularly communicating with Mr. Lozoomi at a time when the turf culminated in a murder could be viewed as inviting an inference by the jury of guilt based solely on Ms. Rose-Podnar’s bad character as a drug user. The logic would be because Mr. Lozoomi was her dealer of course she was involved in assisting him in eliminating his rival. It was one thing for the Crown to put in the fact of the electronic communications between these two. However, when it came to these seven text messages, they had content, and in my view, without any other content had a prejudicial quality that overbore their probative value.

[29] These possibilities lessened the probative value of this evidence to the relevant questions concerning Ms. Rose-Podnar’s liability for/contribution to the murder of Mr. Warsame. It also increased the prejudicial nature of the evidence. The jury could see the words in the texts, but because there was no reply to them the jury had no context to assess what was really going. The jury would also have nothing to compare the unanswered texts to, as the actual content of any other communications that passed between these two people were not part of the Crown’s case. This missing context was important if the jury was not to be called upon to start speculating. I agreed with the defence submission that a lack of context was an aspect that would confuse the jury.

[30] Further, I was persuaded by the arguments of the defence that admission of the texts could lead the jury to a circular reasoning exercise. An inference could be suggested that, because Ms. Rose-Podnar was looking for some direction about “what to do” at the various times the messages were sent to Mr. Lozoomi, she must have always been communicating with Mr. Lozoomi prior to that time about “what to do” about the murder. The lack of context and reply by Mr. Lozoomi, combined with an absence of information whatsoever about the content of prior communications, in my view created an undue risk of circular reasoning by inviting the jury to speculatively construct possible prior evidence solely on the strength of the less than clear evidence contained in the words of the texts.

[31] I did not agree with the Crown submission that this problem could be addressed by a limiting instruction in the final charge to the jury. I say this as I was of the view, at the time of my ruling, that the ultimate Crown theory of liability concerning Ms. Rose-Podnar and her connections to Mr. Lozoomi would involve a complicated trip through DNA evidence as well as a non-intuitive snowstorm of technical information relating to cell phone calls, cell tower pick-ups, charts, and power point slides. I anticipated the charge to the jury would be complex. However, this was not a reason why I decided to exclude the evidence. The Crown had done its best to efficiently stream-line the presentation of complicated evidence in this case. It is commended for doing so.

[32] It seemed to me that, based on the evidence I had heard to that point, it would have been too easy for the jury to be confused by the possible inferences urged by the Crown with respect to these seven texts, in the face of all the other “wordless” communications that were already in evidence. I appreciate that the Crown submitted that they were not going to urge those inferences. However, I was persuaded that the admission of these texts would nonetheless tempt the jury to fall back on a simpler, yet impermissible, path of circular reasoning to a guilty verdict by utilizing these texts to conclude that, because Ms. Rose-Podnar was asking for instructions from Mr. Lozoomi after that fact, she was previously involved in a common unlawful purpose to kidnap Mr. Warsame, as evidenced by the fact, but not the content, of all other calls and texts that occurred in January up to and including January 13, 2019.

[33] I appreciate the Crown’s express indication it would not be making this submission. However, I could see no other reason why the texts would be logically relevant to any issue in this trial other than for that proposition.

[34] I appreciate that I could have instructed the jury to simply not to follow that line of impermissible reasoning with regard to this evidence. I expect that they would follow my instructions. Nevertheless, I thought it would be an area of unnecessary difficulty, with no corresponding benefit to the jury’s appreciation of the essential issues to be decided in the case. Given the chance of dealing with the problem as it arose, rather than later in a final charge, for these pieces of evidence at least, I saw it as appropriate to exclude the evidence rather than admit it with a correcting instruction that I viewed as insufficient to overbear the prejudice the texts would create.

[35] I saw it as important that the “request for instructions” inference arose from seven texts that were never answered by Mr. Lozoomi. I agreed with Ms. Rose-Podnar that the jury would be left to extreme speculation as to the purpose of these texts and the reasonable inferences that could be drawn from them. This speculation would be a more dangerous exercise than simply being asked to draw inferences from what were rather bald, context-less texts. I did not see it as a reasonable inference that these texts were representative of a continued pattern of intensified communication between Ms. Rose-Podnar and Mr. Lozoomi about the murder, particularly because these were the only texts the Crown sought to introduce the content of, in addition to the records of the fact of countless other phone calls and text messages sent in January 2019.

[36] Also, in time and in text, only the first message at 4:20 am takes place in what I would consider a circumstance that might be remotely connected to the events of the murder. The others start at 10:18 am later that morning and seem to have something to do with an airport, presumably the one in Thunder Bay. Ms. Rose-Podnar asking Mr. Lozoomi what to do about an airport pick up, with no response from Mr. Lozoomi, made it impossible, in my view, to draw any reasonable conclusions without significant speculation. Even the text request at 4:20 am about “stay here or??” is a message that in no way is remotely connected to anything to do with the murder of Mr. Warsame, absent extreme speculation. Common sense tells me that attempting to communicate with a person, Mr. Lozoomi, who for argument’s sake was a party to a murder, even in the context of a continued series of phone calls and text messages, without any other way to assess what is being discussed, only creates a possibility for an impermissible inference of guilt by association. This invites an ultimate reasoning flaw by finding liability, not because of the actions or mental state of Ms. Rose-Podnar, but only because of her association by electronic messages with Mr. Lozoomi.

[37] In my view, the text message evidence was not strong. It only supported an inference that Ms. Rose-Podnar was trying to reach out to Mr. Lozoomi on a topic or topics that appear to be unrelated to Mr. Warsame or the events of the previous day. Despite their brevity, the seven texts were the only texts that would be offered in relation to Ms. Rose-Podnar in the Crown’s case. I agreed with Ms. Rose-Podnar’s submission that, as a result, the seven texts would have a very good chance of being given undue importance, which would confuse the issues in this trial for the jury and unduly prejudice Ms. Rose-Podnar.

[38] I appreciate that the Crown’s argument relies on the decision of the Supreme Court of Canada in R. v. Suchan and Jackson (1952), 104 C.C.C. 193, at para. 16, which states the following:

Common intention is seldom expressed and rarely reduced to writing and must, therefore, in general, be found from conduct of the parties. That which takes place at the scene of the offence is material, but also relevant is the conduct of the parties leading up to and subsequent thereto.

[39] The Crown argues that it is permissible to leave with the jury the ability to draw inferences from these messages, on the theory that Ms. Rose-Podnar would not be expected to be direct (i.e., asking “did you kill him??”) in her texts with Mr. Lozoomi regarding the murder. In my view, that argument did not rely on any evidence lead up to that point in the trial and instead rested on what I saw as undue speculation. It proposed that Ms. Rose-Podnar knew or ought to have known that, by 4 a.m. on January 13, 2019, Mr. Warsame had been dead for some four hours and that Mr. Lozoomi was involved. There was no direct or circumstantial evidence in the trial on Ms. Rose-Podnar’s state of mind that could have supported that conclusion. All the jury had to that point about Ms. Rose-Podnar was evidence of electronic communications, and the DNA on Mr. Warsame. There was nothing that placed her at the scene of the murder or even reliably close to where Mr. Warsame might have been confined. Further, Ms. Rose-Podnar’s knowledge about the murder could not be ascertained from a plain, or even nuanced, reading of the texts without undue speculation.

[40] The law from Suchan and Jackson requires a trier of fact to focus on conduct, rather than words in writing, to ascertain whether there is “common intention” in a criminal context. The Crown seeks only to introduce the texts as evidence of a continuum of conduct stretching back to the beginning of January 2019 and ending on January 13, 2019.

[41] Ms. Rose-Podnar put something into writing in those seven texts. The question was could they be permissibly used by a jury to draw inferences about the elements of the offence with which Ms. Rose-Podnar was facing. I saw the fact of no other context for all the other electronic communications as creating an insurmountable burden of prejudice arising from the admission of this relatively small bit of communications, that could not be fairly dealt with by a mid trial or final instruction, that required me to exclude these messages.

[42] I expected the jury to view the content of texts as important in this case. Unduly and significantly prejudicial in my view, because these were the only texts containing words from Ms. Rose-Podnar sought to be introduced by the Crown. Further because of their patently innocuous and contextless nature, their introduction into evidence had a serious potential to create confusion and would be an invitation for circular reasoning on the part of the jury. Speculation by juries is to be expressly discouraged. In this case, I saw the introduction of these messages as being a circumstance where the prejudicial effect overcame the limited probative value of the evidence.

[43] I was also persuaded by Ms. Rose-Podnar’s submission that the introduction of the texts would prejudice Ms. Rose-Podnar’s decision to testify at the trial.

[44] I have outlined above how the mere fact of the sending of these messages could be viewed as extrinsic misconduct on the part of Ms. Rose-Podnar, despite it occurring in a circumstance of post offence conduct. Introduction of the proposed evidence had the potential to support an inference of guilt solely on the basis of bad character. In my view, context was required to avoid unnecessary focus on these prejudicial aspects and to eliminate an occasion of undue speculation. Context could only come from testimony by Ms. Rose-Podnar once these texts were introduced. She would be required to give up a significant constitutional right to remain silent in order to address what I saw as evidence that was problematic by itself. This was a further aspect of prejudice that I saw as militating against admitting the evidence.

[45] Accordingly, for all these reasons I found that the prejudicial value of these messages outweighed their probative value and an instruction to the jury could not remedy this difficulty. The application was allowed in respect of this aspect and the Crown was directed not to lead the seven text messages as evidence in this trial.

The Crupi phone call evidence

[46] On October 10, 2019, I gave an oral judgment with respect to the joint application by the accused as follows:

I am persuaded by the arguments of counsel for the accused that evidence related to timing of communications between Dennis Crupi and Mr. Parr and Ms. Rose-Podnar on January 13, 2019 as it relates to Mr. Crupi’s contact with Detective Robillard be excluded from this trial. Written reasons for this decision will follow in due course.

[47] Here are the reasons for that decision.

[48] I was persuaded by the defence’s arguments that any evidence of D/C Robillard – which would seek to connect or comment on the timing of the communications between Mr. Crupi, Mr. Parr, and Ms. Podnar – were not relevant to the issues at this trial. I also agreed that the evidence would be construed by the jury as extrinsic misconduct as opposed to post offence conduct. This evidence is presumptively inadmissible. Further, I agreed with the defence that the prejudicial nature of the calls overbore any probative value that the fact and length of the calls would have on the essential issues at trial.

[49] It was intended for the last Crown witness, D/C Robillard, to testify about his investigation of Mr. Crupi the day after the murder. Mr. Crupi’s blue Dodge Ram had been tracked to the scene where Mr. Warsame was found. He was an obvious person of interest for the police. Long after D/C Robillard had interviewed Mr. Crupi, in the context of analysing Mr. Crupi’s phone records, D/C Robillard realized that both Mr. Parr and Ms. Rose-Podnar had calls with Mr. Crupi around the time D/C Robillard was calling Mr. Crupi trying to get him in to the police station to conduct an interview on the afternoon of January 13, 2019.

[50] Ultimately, Mr. Crupi showed up to meet with D/C Robillard. It appears that, at that time, Mr. Crupi had dialed Ms. Rose-Podnar on his phone and then just left the call open, with the phone out of sight of D/C Robillard, while he was being interviewed at about 10:30 the night of January 13, 2019. This call went on for one hour and twenty-two minutes. The Crown indicated that D/C Robillard intended only to testify about the fact, length, and time of these specific calls.

[51] In my view this proposed commentary on the evidence lacked relevance because there was no way for the jury to know what was said during the calls or why they were made, and the calls could only be connected to the charge at issue by speculation and not reasonable inferences based on the proposed evidence for the Crown’s case. I say this because Mr. Crupi was not going to testify. All the jury would know about him was what was contained in an agreed statement of fact before the Court. Mr. Crupi owned the blue Dodge Ram, it was at the scene of the murder on January 12, 2019, and it was located about 800 kilometers east of Thunder Bay on January 13, 2019, with Mr. Lozoomi, Mr. Joiles, and another person, now deceased in the truck. In the case for the Crown, Mr. Crupi is not otherwise implicated in the kidnapping and murder of Mr. Warsame. In my view, this made any commentary about the existence of these calls an invitation to speculation rather than an opportunity to make a reasonable or permissible inference. Absent evidence – other than they called each other on the phone – linking Mr. Crupi to the acts or intentions of the parties on trial or linking him to a party that will be on trial later – Mr. Lozoomi – I saw the introduction of this evidence as a big “so what?”. It is not illegal to phone people, per se. The Crown argued that the existence of the calls demonstrates continuity of communication with a person who was being questioned by police about the murder, but who was never charged with any involvement. I could not see how the evidence was relevant, except through a lens of impermissible speculation with respect to both Mr. Parr and Ms. Rose-Podnar.

[52] For both accused, I also saw this proposed evidence as being that of extrinsic misconduct. My reasoning in treating the evidence as being extrinsic misconduct evidence, rather than post offence conduct evidence, follows my reasoning with respect to the text message evidence. The phone calls happened in time, post offence. Mr. Crupi’s roll in the narrative of the murder had been minimal to that point in the trial, but the Crown wanted the evidence admitted as part of its case concerning of the alleged continuum of both Mr. Parr’s and Ms. Rose-Podnar’s common unlawful intention to kidnap and murder Mr. Warsame. However, Mr. Crupi would not be called as a witness at the trial.

[53] I will first discuss why I view the call between Mr. Crupi and Ms. Rose-Podnar during Mr. Crupi’s interview as evidence of extrinsic misconduct on the part of Ms. Rose-Podnar.

[54] In my view, listening in to the conversations of others on an electronic device when one of two people involved in the main conversation don’t know you are there listening, is a reprehensible action. It is sneaky and not encouraged as socially appropriate behaviour. It is more offensive when the person who doesn’t know you are listening is a police officer. Even worse when the police officer is conducting a murder investigation. What Ms. Rose-Podnar did by not hanging up, even if the call was, in fact, a “butt dial”, was an act of misconduct. It stands on its own as evidence of bad character and is presumptively inadmissible.

[55] However, the Crown argued that it could be inferred to be the act of a person who is already connected to the offence of murder at issue. I disagreed because I saw it as independently bad behaviour. Ms. Rose-Podnar was not charged with intercepting private communications. The focus of my analysis then turned to a consideration of the probative value versus the prejudicial effect for this evidence with respect to Ms. Rose-Podnar.

[56] The Crown argued that any concern regarding improper use of bad character evidence for this particular evidence could have been dealt with by way of a jury instruction. I have set out above the law concerning jury instructions and how juries are presumed to follow what they are told by a trial judge. However, like with the text messages, I viewed the introduction of this evidence as an occasion where a specific instruction would not be sufficient to insulate the jury from a propensity for circular reasoning or a finding of guilt only by association.

[57] The fact that Mr. Crupi was not going to testify was important to my decision in this regard.

[58] Choosing who to call as a witness is a tactical decision of counsel. I did not draw an adverse inference from this decision. However, I observe that, absent his testimony, there would be no context for the jury to consider why Mr. Crupi made the calls at issue, or what was said. The jury would therefore be called to engage in an exercise of speculation regarding this evidence. I knew the standard charge would give the jury a general instruction about the prohibition on speculation. However, when it came to this particular evidence, had it been admitted, I was of the view that the jury would be left in an untenable position of determining what inferences could be drawn without any proper context to consider all reasonable inferences. In outlining what kind of interferences would be impermissible, I would be required to describe, on a speculative basis, a litany of conduct that is bad and which would therefore be extremely prejudicial to Ms. Rose-Podnar without any corresponding probative benefit to the evidence in the first place.

[59] One such impermissible inference was that Ms. Rose-Podnar was intending to obstruct the investigation of the murder or intending to assist others in that endeavour. This is not an offence with which she was charged.

[60] During the Crown’s case, the jury would not hear from anyone about why the call was made or what was said. In my view this would mean that the jury would be required to speculate about why Ms. Rose-Podnar stayed on the call for almost an hour and half. The Crown argued that she listened in because she was involved with the murder. It seemed to me that the only foundation for that argument came from the call being made in the context of a murder investigation. However, there was or would be no evidence led in this trial showing that Mr. Crupi was directly or indirectly involved in the murder. Simply noting the fact that a call was made by Ms. Rose-Podnar to Mr. Crupi was not probative of any of the elements the Crown would need to prove against her. In my view, the only way that this evidence could rise to a level of being probative would be through a process of impermissible speculation, rather than the drawing of a reasonable inference from the facts.

[61] No doubt, Ms. Rose-Podnar was a drug user. The evidence in this trial would lead the jury to a reasonable inference that Mr. Lozoomi was a drug dealer. He was driving the truck on January 13, 2019, which had been at the murder scene less than 24 hours before he was intercepted by police. An inference from other evidence in the trial could be made that Mr. Lozoomi was directly involved with the murder. Yet there would be no way of knowing why Mr. Crupi’s truck was involved, nor how Mr. Lozoomi ended up driving it so far away from Thunder Bay. Again, the defence relied on the circular logic argument to suggest that impermissible reasoning would be the only manner of inferring Ms. Rose-Podnar’s guilt, based on her association with Mr. Lozoomi and her apparent interest in taking a call from Mr. Crupi, who owned the truck found to be driven by Mr. Lozoomi on January 13, 2019. This would lead to a bad character-based inference as a way to find guilt, which could not be overborne by a special instruction to the jury. For this reason, as well, I was determined to exclude comments about the evidence with respect to Ms. Rose-Podnar.

[62] I was also persuaded by Ms. Rose-Podnar’s argument that introducing this evidence would force her into a choice about testifying. She would be required to give up a significant constitutional right to silence in order to answer this evidence, which at best called for extreme speculation by the jury to make any sense out of it. Ms. Rose-Podnar would be called upon to answer evidence that was presumptively inadmissible. I viewed this as a prejudice that outweighed any probative value to the evidence. The bad character nature of Ms. Podnar’s conduct created a prejudice that outweighed any possible probative value or permissible inferences that could arise from the fact of her listening in on the conversation of a person who was never charged with anything while they were being interviewed by police.

[63] In considering the fact that Mr. Parr had discussions with Mr. Crupi around the time the police were trying to interview him, I conducted the same analysis as I did with regard to Ms. Rose-Podnar. Absent testimony from Mr. Crupi, I did not see the existence of the telephone calls as probative of anything relating to the charge at issue. The lack of context as to why and what was said would lead to an occasion of impermissible speculation by the jury. Also, I was persuaded by the arguments of Mr. Parr’s counsel that, because the mere fact of the phone calls could be construed as either an attempt to obstruct justice or to threaten Mr. Crupi about anything he said to police, this evidence was that of extrinsic misconduct. Mr. Parr was not charged with obstructing justice. Yet it could be inferred that is what he was doing when he was talking to Mr. Crupi around the time the police were looking to interview him. An instruction to the jury on that impermissible reasoning would be more akin to filling in gaps in the evidence rather than outlining possible alternative innocent explanations for actions that must be considered when dealing with circumstantial evidence.

[64] In respect of Mr. Parr, the prejudicial effect of evidence that could be inferred as that of bad character, coupled with a lack of probative value to the charges at issue, led me to conclude that the prejudice outweighed any probative value, and that any commentary evidence about phone calls between Mr. Parr and Mr. Crupi should be excluded from the trial.

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

DATE: December 9, 2024

COURT FILE NO.: CR-24-116-00 DATE: 2024-12-09 SUPERIOR COURT OF JUSTICE - ONTARIO RE: His Majesty the King v. Parr et al. HEARD: October 9 and 10, 2024 COUNSEL: H. Bracken and D. Pierce, for the Crown I. McCuaig, for Stephan Parr S. Jeetham, for Amy Rose-Podnar JUDGMENT ON APPLICATIONS Fitzpatrick J. DATE: December 9, 2024