'If the shoe does not fit, your lordship must acquit'; Kamloops man cleared of North Shore break-in

A Kamloops man who has been in prison for seven months was granted freedom on Friday after a judge ruled a pair of shoes police used to link him to a North Shore break-and-enter could not have been his.

In fact, the Under Armour running shoes seized by police last year were not even Leandro Roth’s size.

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“If the shoe does not fit, your lordship must acquit,” defence lawyer Dan McNamee told B.C. Supreme Court Justice Dev Dley.

It worked. In his decision, which was read on Friday following a four-day B.C. Supreme Court trial, Dley cited the shoes alongside a number of other inconsistencies in the police investigation in acquitting Roth.

The 38-year-old was arrested a short time after a residential break-in at a house in the 600-block of Clearwater Avenue last spring.

Court heard a 12-year-old girl was home alone on the morning of June 10, 2018, when she heard someone rummaging around her mother’s bedroom. The girl went to investigate and saw a man dressed in black and wearing blue latex gloves going through her mom’s jewelry.

The girl texted her mother, who was at church, and phoned 911. She then saw the man peer into her bedroom before leaving the home.

Police arrived a short time later and officers spotted a suspicious man in black crouched near a neighbour’s recycling bin. He opened the lid, put something inside and then ran into a nearby yard.

Officers later searched the bin and found blue latex gloves and a screwdriver. A police dog tracked a scent from the bin to a home on York Avenue, less than a block away.

Roth was arrested a short time later leaving the York Avenue home. Police cleared the residence but did not enter a locked suite inside. They seized a number of items from the home, including multiple pairs of shoes.

A police expert in footwear impressions examined the Under Armour running shoes and determined they were a potential match to footprints found in the area near the recycling bin.

A number of witnesses testified they saw a man in black running in the area following the break-in. One neighbour saw a man dressed in dark clothes enter the home on York Avenue. He also witnessed Roth’s arrest and said the two men were dressed differently.

McNamee argued the Crown failed to prove the burglar was Roth, noting the difference in shoe size and the potential someone was hiding behind the locked suite door.

He also noted some of the jewelry stolen in the break-in was listed for sale on Kijiji in July — while Roth was in jail.

The judge agreed.

“It is reasonable to infer that the actual thief was the person who was selling the items,” Dley said.

© Kamloops This Week


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