R. v. Cox, 2018 BCSC 1163

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Cox, 2018 BCSC 1163 Date: 20180613 Docket: 27145 Registry: Vancouver Regina v. Harinam Cox, Shamil Ali, Gopal Figueredo, Erlan Acosta, Ellwood Bradbury and Matthew Stewart Restriction on Publication: A publication ban has been imposed under s. 486.5 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify a victim/witness/undercover officer, referred to in this judgment by the initials H.C., S.L., and S.G. This publication ban applies indefinitely unless otherwise ordered.

Restriction on Publication: A publication ban has been mandatorily imposed under s. 517(1) of the Criminal Code restricting the publication, broadcasting or transmission in any way of the evidence taken, the information given, the representations made and the reasons, if any, given in respect of the application for judicial interim release (bail). Corrected Judgment: The text of the judgment was corrected at paragraph 7 on December 5, 2018 Before: The Honourable Mr. Justice Silverman Oral Ruling on Voir Dire #6 Re Footwear Impression Evidence Counsel for the Crown: K. Andani P. Hogg L. Fillingham J.M. Robinson L.

Pearce Counsel for the Accused, Harinam Cox: G. Docolas G.M. Ng Counsel for the Accused, Shamil Ali: T.D. Anderson A. Dorin Counsel for the Accused, Gopal Figueredo: D. Lawrence W. Jessop Counsel for the Accused, Erlan Acosta: J.S. Stowe V. Aldosky Counsel for the Accused, Ellwood Bradbury: S.R. Buck C. Muldoon Counsel for the Accused, Matthew Stewart: J. Jevning V. Williams Place and Dates of Trial: Vancouver, B.C. Dates Ongoing Place and Date of Judgment: Vancouver, B.C. June 13, 2018 [ 1 ] THE COURT: These is my oral ruling.

If a transcript is ordered, I reserve the right to edit, although that process will not involve a change in the decision or in the reasoning. [ 2 ] On this voir dire , voir dire No. 6, the Crown seeks to have certain footwear impression evidence ruled admissible against three of the accused, Mr. Bradbury, Mr. Figueredo, and Mr. Ali. Counsel contest its admissibility on the basis that the evidence is irrelevant in that there is no available, permissible or legal inference that can be drawn that would advance the Crown's case. [ 3 ] The evidence consists of: 1.

Photographs of casts seen, including various footwear impressions.

2. Documents in support of footprint impression analysis, including lifts, tracing documents, and things of that nature. 3. A number of pairs of shoes located in three different types of locations, which briefly are these:

a) a location where a kidnapping occurred, which I will refer to as Dieppe Place;

b) a location where the Crown argues that the kidnap victim was held that I will refer to as 128A Street; and

c) two vehicles in which some of the accused were sometimes present, the kidnap victim was also sometimes present, and severalaccused were arrested. 4. The opinion of an expert in footprint impression analysis, including comparison of various impressions at Dieppe Place with variousshoes that had been located and seized. 5. A number of background facts that include the following:

a) A kidnapping occurred at Dieppe Place;

b) All the footwear impressions at stake were found there;

c) Numerous pairs of shoes were located and seized within days of the kidnapping as the result of a combination of searches andarrests. Four of those pairs are at stake here;

d) Three pairs of those shoes (one pair each) are connected to each of the three accused opposing the admissibility of this evidence: i. with respect to Mr. Bradbury, that connection is made via his DNA; the DNA that connects him to the shoes is onthe inside of those shoes. On the outside of those shoes is found the DNA of the apparent victim of the kidnapping; ii. with respect to Mr. Figueredo, he was wearing the shoes upon his arrest several days after the incident; iii. and with respect to Mr. Ali, he was wearing the shoes upon his arrest within several days of the incident; and

e) The fourth pair was located at the residence of 128A where the kidnap victim was apparently held. That pair is not connecteddirectly to any of the accused, but according to the Crown's theory, has tread on it, the impressions of which may be present at DieppePlace. [4] The opinion of the expert is, in very general terms, the same for each of the comparisons of footwear impressions from DieppePlace, with the tread of the four pairs of shoes at stake here. [5] In general terms the expert’s opinion is as follows: 1. He cannot specify that any of the shoes made any of the impressions.

There are no accidental characteristics in any of theimpressions, suggesting uniqueness which would enable him to be specific in that sense. 2. There are some impressions which are partially overlapping with other impressions which can cause difficulty when makingcomparisons. 3. The tread of each of the four pairs at stake share common class characteristics with one or more of the impressions found at DieppePlace. 4.

Some of the impressions could have been made by several of the numerous other pairs of shoes seized, or by shoes of the same make,model and size sold anywhere in the world, or other shoes with a similar size and tread pattern sold anywhere in the world. 5. Finally, the expert is unable to say how many such shoes there might be in the world – in other words candidates for the making ofthese impressions – but I am satisfied that the numbers are large. [6] Mr. Buck for Mr.

Bradbury argues, and the argument is applicable to all of the accused, that the inability of the expert toprovide an opinion with some specificity with the shoes, together with the fact that his general opinion allows for shoe candidates topotentially be in the millions, makes his opinion irrelevant to this proceeding. [7] He provides authority in the case of the Ontario Court of Appeal decision in R. v. Portillo, (ON CA), [2003]176 C.C.C. (3d) 467.

I will read several paragraphs: 30 The "footwear" evidence consisted of two primary facts: * two partial shoe prints found at the scene were similar to impressions from two shoes found by the police in the course of theirinvestigation; and * the shoes were found in the vicinity of Wilfredo Portillo's apartment. 31 The "footwear" evidence was relevant if it could reasonably be inferred from those primary facts, considered in the context of therest of the evidence, that Wilfredo Portillo was at the scene of the homicide in close proximity to the body.

That conclusion could bedrawn only if these two inferences were reasonably available from the "footwear" evidence: * the shoes found by the police made the prints at the scene; and

* the shoes belonged to Wilfredo Portillo. 32 The “footwear” evidence had relevance only if both of the above inferences could be drawn.

With respect to the first inference,that the shoes made the prints found at the scene, other evidence (e.g. hair and fingerprint evidence) connecting the appellant to thescene could only help in concluding that the shoes made the prints if the trier of fact had already drawn the second inference ... 33 The "footwear" evidence could assist in proving either of the factual inferences needed to give the evidence relevance, only if theCrown could first prove the other factual inference for which the "footwear" evidence was offered. 34 ...The only other evidence was the expert’s evidence that the treads on the shoes were similar to the partial prints found at thescene.

That evidence, standing alone, could not reasonably support the inference that those shoes made those prints. This is particularlyso given the expert’s frank concession that he could not say how many shoes had the same tread pattern. His evidence amounted to nomore than an assertion that the shoes found near [the accused's] apartment were among an undetermined number of shoes that couldhave made the prints at the scene of the homicide. [8] Mr.

Buck points out that the facts of that case and the comments of the Court with respect to the need for both inferences to besatisfied would seem to cover the circumstances of this case. [9] I am always unlikely to disagree with the Court of Appeal of a sister province with respect to a matter of law, and I do notintend to describe what I am about to do in that way. In this case, I am satisfied that the facts of this case require a different conclusionthan what was decided in that case. [10] The primary difference is the connection of the shoes to the three accused in the manners previously noted.

With respect to theopinion of the experts, I agree that this evidence is weak. It is essentially identification evidence and could not form the basis forconvictions if it were the only identification evidence, and will not form the basis for convictions if it is still the only identificationevidence at the end of the case. [11] However, I ask myself how it is different from a witness who says, I saw the culprit and the culprit was of a specified visibleminority, a group often considered identifiable by facial features or colour, and the person could say no more about it than that.

It wouldclearly not be enough to convict, but it would also clearly be admissible if there was other evidence of identification anticipated. Isuggest that is the same situation as this. [12] Mr. Buck, Mr. Lawrence, and Mr. Anderson argue that there is not enough present for me to draw any inference, but I disagreewith that.

In that regard, I have been provided with some authority which I will briefly refer to. [13] In order to arrive at a verdict of guilt, the trier of fact must be satisfied that the facts – that cumulatively lead to a finding of guiltbeyond a reasonable doubt – have been established on a balance of probabilities. That is not the test, however, for the admissibility ofitems of evidence. That standard is significantly lower. [14] In that regard, I look at R. v.

L.B., from the Ontario Court of Appeal, reported at (ON CA), [1997] 116C.C.C. (3d) 481, where the Court said this, at para. 16: A cardinal principle of our law of evidence is that any information that has any tendency to prove a fact in issue may be admitted inevidence. Therefore, before any evidence can be admitted, it must be relevant and material. It is relevant "where it has some tendency asa matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appearto be in the absence of that evidence".

It is material if it is directed at a matter in issue in the case. [15] And in a similar vein, in the following year, from the Supreme Court of Canada, the case of R. v. Arp, (SCC),[1998] 3 S.C.R. 339 from the middle of para. 38: 38 ... To be logically relevant, an item of evidence does not have to firmly establish, on any standard, the truth or falsity of a fact inissue. The evidence must simply tend to “increase or diminish the probability of the existence of a fact in issue”. [16] In this case, the Crown seeks to establish that the accused were at Dieppe Place.

The evidence of the footwear impressions isweak in terms of establishing them as the people that were there. It is minimal, but it tends to “increase the probability” that that is so,and in my view, the Crown is entitled to attempt to build on that with other evidence, if they are able to do so. [17] It follows that the evidence will be admitted. [18] There is also a single impression that relates to a shoe that has DNA in it that was found at Dieppe Place. However, withrespect to this shoe, that DNA is apparently not connected an accused person, but is connected to a non-accused person.

I am told thatdefence counsel wish to have that entered into evidence, and of course I will accommodate them. That will be admissible, as well. [19] That is the decision. “Silverman J.”