In rejecting the probative value of the footwear, Doherty
J.A. said, at paras. 29-32:
The Crown’s argument both at trial and on appeal as to the probative
value of the “footwear” evidence is seductive. I agree, however, with [defence
counsel’s] contention that the Crown’s argument as to the relevance of the
evidence is ultimately based on circular reasoning.
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 their investigation;
— the shoes were found in the vicinity of [Portillo’s] apartment.
The “footwear” evidence was relevant if it could reasonably be inferred
from those primary facts, considered in the context of the rest of the evi-
dence, that [Portillo] was at the scene of the homicide in close proximity to
the body. That conclusion could be drawn 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 [Portillo]
The “footwear” evidence had relevance only if both of the above inferences
could be drawn.
 This court concluded that the evidence was not relevant
because it relied on the assumption of facts not proved.
 Here, the primary fact is the plot to kill Lusted. This fact
would only have relevance if it could be reasonably inferred
from this fact that Mason was murdered by the appellant. Put
another way, the plot to kill Lusted could only assist in proving
that the appellant had killed Mason if the appellant wanted to
kill Lusted because Lusted knew he had killed Mason. There
were no facts to show that the plot was because of Mason’s murder absent an assumption of facts not proven. Thus, the plot —
like the footwear in Portillo — was not relevant and had no probative value.
 The trial judge’s ruling demonstrates that he fell into the
same error as the trial court in Portillo. He assumed that the
jury could find — absent evidence connecting the murder of
Lusted to the murder of Mason — that the appellant wanted to
kill Lusted because he witnessed the murder. This is clear from
this excerpt from para. 27 of his ruling:
If the jury accepts the evidence that [the appellant] plotted to do away with
the only witness to Billy Mason’s murder giving the reason for such action
as being that Lusted had information that would put [the appellant] away
for a long time, it is open to the jury to draw the inference that [the appel-
lant] is the killer of Mason.