ONTARIO COURT OF JUSTICE DATE: 2024 08 28
COURT FILE No.: Hamilton Information No. 23-47104411
BETWEEN:
HIS MAJESTY THE KING
— AND —
CHRISTOPHER DEAMUDE
Before Justice J.P.P. Fiorucci
Heard on July 9, 16 and 17, 2024 Reasons for Judgment released on August 28, 2024
Sean Doherty....................................................................................... counsel for the Crown Wayne Richard................................... counsel for the accused Christopher Deamude
FIORUCCI J.:
INTRODUCTION
1The accused, Christopher Deamude, is alleged to have intentionally started a fire on May 27, 2023 in the Dollarama store located at 869 Barton Street East in Hamilton. He was charged with arson, contrary to s. 434 of the Criminal Code and possession of an incendiary device, a lighter, for the purpose of committing the offence of arson, contrary to s. 436.1 of the Criminal Code. The accused elected to be tried by the Ontario Court of Justice and entered not guilty pleas to both charges.
2The Crown called two employees of the Dollarama and a fire investigator who gave expert opinion evidence about the origin and cause of the fire. The accused did not testify or lead any other evidence. The accused conceded that he was in the store at the time of the fire but submits that the Crown has failed to establish beyond a reasonable doubt that the only reasonable inference to be drawn from the whole of the evidence is that he was the person who intentionally started the fire.
LEGAL PRINCIPLES
3The accused is presumed innocent, and that presumption can only be displaced if his guilt is established beyond a reasonable doubt by the Crown. I must instruct myself in accordance with the criminal standard of proof set out by the Supreme Court of Canada in R. v. Lifchus, [1997] 3 S.C.R. 320. A reasonable doubt must be based on reason and common sense. It is logically derived from the evidence or absence of evidence. It is not sufficient to believe that the accused is probably guilty or likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so because such a standard of proof is impossibly high.
4The overriding consideration is whether the evidence as a whole leaves the trier of fact with any reasonable doubt about the guilt of the accused. I can accept all, some or none of a witness’s evidence: R. v. H.(S.M.), 2011 ONCA 215. The burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt.
5The Crown's case against the accused depends on circumstantial evidence. To return a guilty verdict, I must be satisfied that the only reasonable inference that can be drawn from the circumstantial evidence is that the accused is guilty: R. v. Villaroman, [2016] 1 S.C.R. 1000, at para. 30. I am mindful that inferences consistent with innocence do not have to arise from proven facts, as this would put "an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence": Villaroman, at para. 35.
6When assessing the circumstantial evidence, I must consider "other plausible theories" and "other reasonable possibilities" which are inconsistent with guilt: Villaroman, at para. 37. Other plausible theories or other reasonable possibilities "must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation": Villaroman, at para. 37.
7The Crown does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused": Villaroman, at para. 37. As the Supreme Court of Canada noted"the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty": Villaroman, at para. 38.
8Circumstantial evidence "does not have to totally exclude other conceivable inferences": Villaroman, at para. 42. The trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable: Villaroman, at para. 42. Alternative inferences must be reasonable, not just possible: Villaroman, at para. 42.
ANALYSIS
9The accused conceded Detective Greg Blunsdon’s qualifications to give expert opinion evidence regarding the origin and cause of the fire, including his ability to give impartial, independent, and unbiased evidence. The accused also did not dispute Det. Blunsdon’s evidence regarding the area of origin of the fire which was shelves two and three of the rack in aisle 1 which had paper products (paper towel and toilet paper). The paper product rack was six shelves high, numbered by Det. Blunsdon upward, with the lowest shelf being number one. Det. Blunsdon testified that the fire started near the bottom of the rack as he observed full consumption of all the paper products on shelves two and three. Shelf four had full consumption of the paper products from the north side of the rack with the consumption of the paper products being less as it travelled south, or toward the front of the store. The officer observed that the paper products on shelves five and six were charred. On the bottom shelf, shelf number one, some of the plastic holding the paper products was untouched.
10According to Det. Blunsdon, the fire spread from the paper products rack in aisle 1 through the particle board separating aisle 1 and aisle 2. This is consistent with what is seen in the CCTV video from within Dollarama, which was made Exhibit 4 on the trial; smoke first appears to rise from the area of aisle 1 and then flames appear in aisle 2 through the particle board separating aisles 1 and 2. It is also consistent with Carol Burns’ evidence that when she smelled something burning from aisle 2, she went toward aisle 1.
11Based on his review of the witness statements and observations he made, including the high level of black soot on the ceiling tiles above the area of the paper products, Det. Blunsdon opined that the point of origin of the fire was shelves two and three of the paper products in aisle 1. Again, this conclusion was not challenged by the accused.
12Det. Blunsdon testified that he ruled out ignition sources other than a deliberate application of flame. For instance, there were no lithium battery products present in the area, or any electrical sources underneath or near the rack and Det. Blunsdon also ruled out careless smoking based on the witness statements and observations he made.
13The accused did not challenge the officer’s opinion that the ignition source was a deliberate application of flame, but Defence counsel did question Det. Blunsdon as to how he reached the conclusion that a lighter had been used. Det. Blunsdon agreed that his opinion that the fire was started by a lighter was entirely based on the witness statements that he had reviewed.
14When Defence counsel asked whether a match could have started the fire, Det. Blunsdon replied, “I think that would be very challenging with the timelines of the fire for a match to cause, but that is possible”. The officer also agreed with Defence counsel’s suggestion that a matchstick might have been consumed in the fire or might have been moved or lost when firefighters put out the fire.
15In re-examination, Det. Blunsdon explained why he believed a lighter was the most probable ignition source:
We’re looking at what a competent ignition source for this fire is. As far as, like, timelines and to get the fire going fully evolved, though a, like, a match is possible, but realistically with the timeliness to get everything burned, get the fire evolved in the timeline that we see on the video, a lighter is most probable to me. And a lighter is identified as being right at the scene.
16In re-examination, Det. Blunsdon said that it would take 20 to 30 seconds for the fire to evolve if a lighter was applied to the plastic-wrapped paper towel products. The following exchange then occurred between Crown counsel and Det. Blunsdon:
Q. Yeah, I just want – can you clarify? You’d have to be there 20 to 30 seconds, what does…. A. For it to evolve, for you to sit with a lighter, and that’s why I don’t really think it would be possible for a match, because a match is going to burn out… Q. I see. A. …before you can really get that fire to kick. Again, it’s possible, but in my opinion that’s why a lighter is suitable. It would probably take 20 to 30 seconds to get the fire evolved and rolling so that it’s going to spread.
17According to Det. Blunsdon, once the plastic-wrapped paper towels were ignited, smoke would be visible “almost instantly”. Although Det. Blunsdon agreed with Defence counsel that it is possible for a fire to smoulder for some period of time before producing noticeable smoke and flames, in re-examination he stated that, in his opinion, a smouldering fire would take 5 to 15 minutes to evolve in this setting and staff who were at the front of the store would be alerted to the smell and be able to deal with it before it evolved into a fire.
18Carol Burns and Linda Shea were the Dollarama employees who testified at the trial. Neither of them witnessed the accused start the fire and there is no CCTV video that shows the accused starting the fire. The Crown’s case is not assisted by any forensic evidence. It is based entirely on circumstantial evidence.
19The alternative inference advanced by Defence counsel as a reasonable inference that can be drawn on the whole of the evidence is that the accused, Mr. Deamude, was an innocent individual shopping at the Dollarama who happened upon a fire set by another individual in aisle 1.
20The accused did not deny that he is the man wearing a distinct red and black Milwaukee backpack who is seen entering the Dollarama in the Front CCTV video made Exhibit 1 on the trial, nor did he deny that he was the man Ms. Burns saw in aisle 1 after she smelled something burning and went there to investigate. In fact, both Ms. Shea and Ms. Burns saw the accused in aisle 1. The accused also conceded that he is the male depicted in two photographs which were taken outside the store after the store was evacuated. These photographs were made Exhibits 2 and 3.
21I pause here to note that the Crown is always prohibited from leading evidence of the accused’s general propensity to behave badly: Modern Criminal Evidence, Matthew Gourlay, Brock Jones, Jill Makepeace, Glen Crisp, Justice Renee Pomerance, Toronto, Ont.: Emond Montgomery Publications Limited, 2022, Chapter 7, p. 279. Crown counsel, Mr. Doherty, did not elicit prior discreditable conduct evidence. However, in cross-examination, Ms. Burns testified that she learned from someone that the accused had been kicked out of a store in Centre Mall two weeks before the fire at Dollarama and that he had two cigarettes and a lighter in his hand and he was also in aisle 1. I advised counsel that I would disregard this portion of Ms. Burns’ evidence. Aside from it being hearsay, it is inadmissible because it is evidence of potential extraneous misconduct on the part of the accused.
22Ms. Burns and Ms. Shea gave inconsistent evidence about whether the accused, Mr. Deamude, was suspected to be a potential shoplifter when he came into the store on May 27, 2023. Ms. Shea testified that Ms. Burns voiced concerns to her (Ms. Shea) that the accused might be a shoplifter when he entered the store. Ms. Burns, on the other hand, testified that she did not have any concerns about the accused being a potential shoplifter and did not discuss any such concerns with Ms. Shea, nor was Ms. Burns aware of anyone else that was concerned about him being a shoplifter.
23Despite this inconsistency on the issue of whether the accused was seen as a potential shoplifter, I find that both Ms. Shea and Ms. Burns gave credible and reliable evidence regarding their observations of the accused in the store, and particularly in aisle 1. Their evidence on this point was not challenged by the accused.
24In examination-in-chief, Ms. Shea said the following about her observations of the accused in the store:
He was in aisle one, I do – and he was bent over by the paper and the plastic. I don’t remember him starting the fire but when he got up, Carol was saying, “Get out,” and he said, “If you give me a fire extinguisher, I will help.”
25The following exchange then occurred between Crown counsel and Ms. Shea:
Q. And what does that person have on in addition to their clothing, if anything? A. A backpack. Q. And if you can just break that down again, where it is you saw him in the store. A. In aisle one. Q. And in what context? A. He was bent over, I remember. Q. And relative to when the fire began, when was that? A. He was in there for a bit.
26Ms. Shea told Crown counsel that when she saw the accused with Ms. Burns, she did not see anyone else near him. This is consistent with Ms. Burns’ evidence that when she saw the accused in aisle 1, she did not see anyone else in that aisle.
27In cross-examination, Defence counsel asked Ms. Shea about her observations of the accused in the following exchange:
Q. Okay. And after he entered the store, did you see where he went? A. Yeah, aisle one. Q. He went directly to aisle one? A. That’s where I seen him is in aisle one. I don’t know if he went in any other aisle, I seen him in aisle one. Q. When was that? A. I can’t really tell you… Q. Maybe I can – maybe I can just clarify…. A. …a specific time. Q. When was that relative to when you smelled smoke? A. About 15 minutes. Q. So, just so I understand, you saw him in aisle one 15 minutes before you smelled smoke… A. Yes. Q. …is that your evidence? A. Yes. Q. And where were you when you were making those observations? A. I was up by cash. I was up at cash. Q. All right. Were you able to see aisle one from the cash register? A. Oh, yeah, you can. You just have to move a little way and there’s aisle one right there.
28Therefore, although Ms. Shea admitted that she did not know whether the accused went into any other aisle, she did recall that he went into aisle 1 when he came into the store, that he was in aisle 1 “for a bit”, that like Ms. Burns, she saw him “bent over by the paper and the plastic”, and she estimated that she saw the accused in aisle 1 fifteen minutes before she smelled smoke. The Front CCTV footage (Exhibit 1) establishes that the accused was inside the store for about sixteen minutes.
29The Crown relies heavily upon the testimony of Ms. Burns. Ms. Burns was in aisle 2, near the end cap between aisles 1 and 2 at the front of the store, when she could smell something burning. A customer in aisle 2 said they could smell it too. When Ms. Burns went to the end cap to look down aisle 1, she saw the accused bent over, leaning against the paper products in aisle 1. The accused was facing the back of the store. Ms. Burns did not see anyone else near the accused or the paper products. She saw smoke coming from the paper products and could see flames shooting out from those paper products into aisle 1, with smoke going up, above aisles 1 and 2. At this time, Ms. Burns asked the accused what he was doing, and he did not respond.
30Ms. Burns went back to aisle 2, spoke briefly with Ms. Shea and told customers to leave the store. Ms. Burns then returned to aisle 1. Ms. Burns estimated that it took her three to four seconds to return to aisle 1. When she did so, she saw the accused with a cigarette in his hand and he was bending over to pick up a lighter. The accused then left the area where the smoke was and approached Ms. Burns and said that there was a fire in aisle 1 and “someone started a fire”. The accused also said, “if you have a fire extinguisher, I can help you put it out”. Ms. Burns replied, “no, that’s okay” and told him to leave the store. Ms. Burn said that this exchange with the accused happened in between the wall and the end cap where the shopping carts are at the front of the store. Again, at this time, Ms. Burns could not see anyone else in aisle 1. When she had this exchange with the accused in aisle 1, Ms. Burns noticed that he had black soot on his face.
31I find that the only reasonable inference that can be drawn from the totality of the evidence is that the accused is guilty of the offences with which he is charged. The accused did not challenge Ms. Burns’ testimony that he was bent over, leaning against the paper products in aisle 1 when flames were coming out of those products and smoke was rising above aisles 1 and 2. The accused’s proximity to the paper products, the undisputed area of origin of the fire, bending over and leaning against those products shortly after Ms. Burns smelled something burning is consistent with him having started the fire. The fact that his back was to the front of the store, including the entrance to the store, suggests that he was trying to conceal what he was doing by the paper products.
32His actions of bending over and leaning against the burning products are inconsistent with an innocent shopper who happened upon a fire that someone else set. Logic and common sense suggest that an innocent shopper would have alerted others to the existence of the fire instead of staying in the area near the burning products without saying anything. Indeed, Ms. Burns’ unchallenged evidence is that, when she asked the accused what he was doing as he was bent over the paper products, the accused did not respond. Ms. Shea too saw the accused “bent over by the paper and the plastic” in aisle 1 and said that he went to that aisle when he entered the store and was in that aisle “for a bit”. Ms. Shea’s uncontroverted evidence was that she saw the accused in aisle 1 fifteen minutes before she smelled smoke. CCTV footage confirms that the accused was in the store for approximately sixteen minutes. Neither Ms. Burns nor Ms. Shea saw anyone else in aisle 1.
33The alternative inference advanced by the Defence, that someone other than the accused deliberately set the fire, is speculative and unreasonable. Exhibit 4, the CCTV from within the Dollarama, demonstrates the rapidity with which the fire spread from aisle 1 through the particle board into aisle 2. As Crown counsel pointed out, smoke is visible at 8:35:20 p.m., and possibly even earlier, rising above aisle 1 into aisle 2. By 8:36:40 p.m., a flame is visible through the particle board shooting into aisle 2.
34Ms. Burns did not see the flame in aisle 2 when she first smelled something burning. She did see a flame shooting into aisle 1 when she first looked down aisle 1 and saw the accused bent over and leaning on the paper products from which smoke was rising. It is undisputed that the accused had access to a lighter at that time. The only reasonable inference to be drawn is that the accused used the lighter to deliberately start the fire by applying a flame to the paper products which, according to Det. Blunsdon, would take about 20 to 30 seconds to evolve into a fire.
35The fact that Ms. Burns saw black soot on the accused’s face is another piece of circumstantial evidence from which I infer that he was in close proximity to the fire and contributes to my finding that he was the person who set the fire, not someone who had the misfortune of coming upon a fire set by someone else. The expert spoke of the soot on the ceiling tiles above the paper products which he found to be the area of origin of the fire. Again, an innocent shopper who came upon a fire set by someone else would not have lingered in the area without alerting others, and certainly would not have bent over and leaned against the area of origin of the fire he had stumbled upon.
36The accused’s utterance to Ms. Burns “someone started a fire” is evidence that he knew that the fire was deliberately set in aisle 1. I find as a fact that he knew it was a fire that was deliberately started because he was the one who started it.
37Crown counsel argued that there are four pieces of circumstantial evidence, which he characterized as the accused’s after-the-fact conduct, that should contribute to a finding of guilt on the charges: R. v. Calnen, [2019] 1 S.C.R. 301. I find that the accused picking up the lighter before approaching Ms. Burns in aisle 1 is evidence, which is again undisputed, that he had access to a competent ignition source, at the time Ms. Burns first smelled something burning and saw the flame and smoke in aisle 1. I place no reliance on the accused’s offer to help put out the fire or his return to the scene after having left and walked to the intersection of Barton and Gage.
38The final piece of after-the-fact conduct upon which the Crown relies consists of what the accused said to Ms. Burns once he had returned to the scene and was standing outside the store. According to Ms. Burns, the accused said to her, “you’re not accusing me of starting that fire, are you?”. Ms. Burns replied, “no, absolutely not” and the accused said, “okay, you’re lucky” before walking away.
39The Crown says that this was a veiled threat by the accused to Ms. Burns because he knew that she had seen him in aisle 1 and could implicate him for having started the fire. Defence counsel did not cross-examine Ms. Burns about this evidence. However, Defence counsel argued that the accused’s words were not a threat at all, and that another reasonable inference is that they were merely the words of an innocent man who thought he was about to be accused of a crime he did not commit.
40In the circumstances of this case, I draw the inference that the words spoken by the accused, were the words of a man who had deliberately started the fire in the Dollarama and knew that Ms. Burns was likely the only witness who could implicate him in the commission of that crime. Although I draw this inference, it is only one piece of circumstantial evidence which contributes to my finding that the accused is guilty of the offences with which he is charged and is not essential to my finding that the accused is guilty. In other words, I am satisfied that the only reasonable inference that can be drawn from the circumstantial evidence is that the accused is guilty of the offences with which he is charged even without the accused’s utterance to Ms. Burns that she was lucky she was not accusing him of starting the fire.
CONCLUSION
41For the reasons set out above, I find the accused, Christopher Deamude, guilty of arson, contrary to s. 434 of the Criminal Code and possession of an incendiary device, a lighter, for the purpose of committing the offence of arson, contrary to s. 436.1 of the Criminal Code. The possession of an incendiary device conviction is conditionally stayed pursuant to R. v. Kienapple, [1974] S.C.J. No. 76.
Released: August 28, 2024 Signed: Justice J.P.P. Fiorucci