Court Information

Ontario Court of Justice

Date: January 29, 2015

Court File No.: Kenora 140679

Parties

Between:

Her Majesty the Queen

— And —

Anne Redsky

Judicial Officer and Counsel

Before: Justice Sarah Cleghorn

Heard on: October 20 & December 19, 2014

Reasons for Judgment released on: January 29, 2015

Counsel:

• Peter Williams, for the Crown
• Peter Kirby, for the accused Anne Redsky

Judgment

Overview

[1] In the early morning hours of March 21, 2014, the trailer of the accused, Anne Redsky, burnt to the ground. It would appear that the fire started in a wood stove. The Crown alleges that Ms. Redsky deliberately started the fire, in part to damage and destroy the complainant's property. She is therefore charged with arson/damage to property contrary to section 434 of the Criminal Code.

[2] On March 20, 2014, Anne Redsky and her common law partner at the time, John Shebagegit, spent the afternoon hours running errands in the City of Kenora. Upon return to Ms. Redsky's trailer in the early evening hours, the couple began to consume alcohol, in particular, a case of beer. The consumption of alcohol continued into the early morning of March 21, 2014.

[3] As the couple drank they began to argue. The argument escalated and ended with Ms. Redsky asking Mr. Shebagegit to leave the trailer; he agreed to do so. This was the first argument between them during their 2-½ year relationship that culminated in Ms. Redsky asking him to leave her home.

[4] Upon Mr. Shebagegit's departure, Ms. Redsky started a fire in the woodstove, and then went to bed. She awoke to a fire within her home. The Crown's theory is that Ms. Redsky started the fire in order to end her life and destroy Mr. Shebagegit's property located in the trailer, out of anger, revenge and sadness. Counsel on behalf of Ms. Redsky takes the position that she did not intentionally or recklessly set the fire in the trailer in order to destroy the property or injure her, and further, that the cause of the fire remains unknown. In the alternative, defence counsel submits that as arson is an offence of specific intent, taking into account Ms. Redsky's level of advanced intoxication, I should be left in a state of reasonable doubt as to whether she had the required subjective mens rea to commit the offence of arson.

Issues to be Addressed

[5] In light of the charge, the evidence and the positions of the parties, I am required to address two principal issues in deciding this case:

A) Did the accused's voluntary act cause the damage by fire?

B) Did the accused intend to cause damage by fire or was she reckless in that regard?

Evidence at Trial

a) Ms. Redsky's Level of Intoxication

[6] Mr. Shebagegit and Ms. Redsky resided together in a common law relationship for approximately 2.5 to 3 years, at Shoal Lake First Nation, in a trailer registered to Ms. Redsky. Located inside the trailer were specific personal belongings of Mr. Shebagegit, which included his clothing, tools and electronics. At the time of trial, the parties were separated.

[7] On March 20, 2014, Mr. Shebagegit and Ms. Redsky traveled to the City of Kenora in order to do some shopping. Upon return to the trailer around 6:00 p.m. to 7:00 p.m., both of them began consuming alcohol. Mr. Shebagegit had purchased a case of beer and testified that both parties drank 12 beers each throughout the evening hours. He testified that Ms. Redsky was somewhere "between drunk and really drunk".

[8] Ms. Fair was a neighbour to Ms. Redsky on Lake Shoal First Nation on March 21, 2014.

[9] Ms. Fair was awakened on March 21, 2014 at sometime between 5:00 a.m. and 5:30 a.m. when Ms. Redsky came to her home. Ms. Fair was forthright in her evidence that she had also been drinking that morning and the evening prior. She estimated that she had drunk approximately 20 ounces of hard liquor. When Ms. Redsky woke her up, Ms. Fair described her condition this way: "I was like, sort of drunk and, like sort of drunk and sort of sober."

[10] According to Ms. Fair, Ms. Redsky seemed to be under the influence of alcohol; however, she also stated that she appeared "okay".

[11] Ms. Redsky informed Ms. Fair that her house was on fire. This resulted in Ms. Fair questioning Ms. Redsky on what was occurring, to which she testified Ms. Redsky responded, "She just told me that she set it on fire."

[12] Billy Wahpay, the son-in-law of Ms. Redsky, who resided at the time in a trailer 50 feet from the accused, testified that after waking up he ran outside and found Ms. Redsky sitting in the snow crying. Concerned for Mr. Shebagegit's safety, he questioned Ms. Redsky about his whereabouts. Although he had to inquire more than once, Ms. Redsky was able to state that Mr. Shebagegit was not in the trailer.

[13] When questioned regarding Ms. Redsky's level of intoxication, Mr. Wahpay's response was that she was, "possibly intoxicated".

[14] Kara Wahpay, the daughter of Ms. Redsky, testified that she found her mother sitting outside in the snow bank. Ms. Wahpay expressed the opinion that her mother was intoxicated at the time. Further, she described her mother as being distraught over the fire, and that she was concerned when her mother made a statement that she will have nothing to live for if she loses everything.

b) The Argument Between Ms. Redsky and Mr. Shebagegit

[15] In the early morning hours of March 21, 2014, an argument ensued between the parties, which ended around 3:30 a.m. when Ms. Redsky requested that Mr. Shebagegit leave the residence. He complied. This was the first occasion that Ms. Redsky had ever requested that Mr. Shebagegit leave the home during an argument.

[16] The trigger for the argument was jealousy. Ms. Redsky felt that Mr. Shebagegit was expressing an interest in other women.

[17] To Mr. Shebagegit's recollection, when he left the residence, there was no fire in the wood stove.

[18] The daughter of Ms. Redsky, Kara Wahpay, testified that she had received a text from her mother at around 3:00 a.m. on March 21, 2014, (She did not see it until later that day, after the fire.) In it, her mother reported that she had had an argument with Mr. Shebagegit about his interest in another woman.

c) Evidence of Edith Fair

[19] Ms. Fair gave a statement to Constable Bryant on March 20, 2014. In her statement, she acknowledged that she had a significant amount of alcohol to drink the night before. In cross-examination, Ms. Fair was consistent in her evidence that at the time that Ms. Redsky attended at her home that she was not so drunk that she was unable to accurately recall the events of what Ms. Redsky's said to her.

[20] During cross-examination, Ms. Fair was specifically questioned regarding the possibility that she had misheard Ms. Redsky's comment. In particular, she was asked if it was possible that Ms. Redsky might have simply said, "The house is on fire". Ms. Fair's response to this question was as follows: "No. She said, 'I set the house on fire'…because her and her common-law were arguing."

[21] Constable Bryant took a statement from Ms. Fair at approximately 11:00 a.m. on March 21, 2014. He testified that Ms. Fair was displaying some signs of impairment at the time; in particular, he was able to detect an odor of alcohol emanating from Ms. Fair while she was providing her statement. However, he did not note any difficulty in her ability to speak to him, other than to note that she appeared reluctant to provide a statement.

[22] A second officer, Constable MacNeil, spoke with Ms. Fair. He testified that Ms. Fair was able to speak clearly and he did not note an odor of alcohol on her.

d) Evidence of Anne Redsky

[23] On March 20, 2014, Ms. Redsky traveled into the City of Kenora with her common law partner, John Shebagegit, for a dental appointment and to run some errands. As a result of a dental procedure, Ms. Redsky was prescribed both antibiotics and Percocet for pain relief. The parties returned to the trailer between 6:00 p.m. and 7:00 p.m. Prior to dinner, Ms. Redsky took a prescribed dose of the Percocet. Although she knew that she should not drink alcohol if she was taking the pain killer, she chose to drink approximately 12 beers throughout the evening.

[24] Ms. Redsky acknowledged that an argument took place that evening between her and Mr. Shebagegit. She admitted being angry with him for speaking to other women. Ms. Redsky told Mr. Shebagegit to leave the trailer.

[25] After Mr. Shebagegit left the home, Ms. Redsky testified that she decided to light a fire because she was cold. To her recollection, there were boxes and paper in the wood stove. She remembered lighting the fire and then heading off to bed. She left the door to the woodstove open, "an inch or two". Prior to the fire, there were no issues identified with the functioning of the wood stove.

[26] Ms. Redsky acknowledged that her general practice in starting the wood stove is to leave the door open slightly, until such time as the fire starts, after which, the door is then shut. Ms. Redsky did not shut the door on this particular occasion. Instead, she lit the fire, left the door open and went to bed.

[27] Ms. Redsky awoke when she began choking on the smoke from the fire. By this point in time, the living room is described as being completely ablaze. She returned to her bedroom and kicked on the window in order to flee from the burning trailer. She jumped out the window to escape the fire.

[28] After jumping from the window, Ms. Redsky does recall sitting in the snow bank and watching the trailer burn. Her memory then fades. She vaguely remembers speaking to the police. Regarding her conversation with Edith Fair, in her words, "I can barely remember."

[29] Ms. Redsky does recall making statements that she wanted to harm herself. She explains that she was both upset and angry with John Shebagegit. Further, she testified she was intoxicated at the time the statements were made.

Analysis

[30] In its recent decision in R. v. Tatton, the Court of Appeal set out the essential elements of the offence of arson found in s. 434 of the Criminal Code. According to Pardu J:

… to prove that an accused committed arson under s. 434 of the Criminal Code, the Crown must prove firstly that the act causing damage by fire or explosion was the voluntary act of the accused, and secondly that the accused either intended to cause damage by fire or explosion or was reckless as to whether damage by fire or explosion would occur.

These elements will provide the framework for my analysis of the evidence in this case.

A. Did the Accused's Voluntary Act Cause the Damage by Fire?

[31] It is the position of the defence that the Crown failed to establish that the accused caused the fire that consumed her trailer and destroyed Mr. Shebagegit's property. The defence argues that by failing to call an expert to testify as to the cause of the fire, the Crown's case has fallen short in proving this essential element of the crime of arson.

[32] No doubt, in some cases expert evidence can be essential to proving that a fire was deliberately set rather than the result of some accidental cause. In this case, however, proof that Ms. Redsky caused the fire comes directly from the admissions she is alleged to have made to Ms. Fair. As a result, I will turn to a careful consideration of Ms. Fair's evidence.

[33] Edith Fair presented as a somewhat reluctant witness. Ms. Fair described Ms. Redsky as both her neighbour and a person she had grown up with. Her struggle to testify at the trial was genuine. Ms. Fair can only be described as an independent witness in this matter. There is no motive on her part to shade her evidence one way or another, as she has no apparent interest whatsoever in the outcome of this case.

[34] Edith Fair presented as a credible witness. Her evidence did not waiver. She conceded on points where her memory was vague, and was firm in her responses in cross-examination regarding what she heard Ms. Redsky say regarding how the fire came to be started.

[35] Edith Fair was able to recall the details of those early morning hours. Ms. Fair explained how she went about preparing coffee, and asking the essential questions of what was going and how the fire began.

[36] When considering the totality of Ms. Fair's evidence, despite the fact that she herself had been drinking heavily the prior evening, I believe her evidence to be both reliable and credible. I accept that Ms. Redsky told Ms. Fair that she set her house on fire because she had been arguing with her common law spouse.

B. Did the Accused Intend to Cause Damage by Fire or Was She Reckless in That Regard?

[37] The required mens rea for the offence of arson will be established if an accused either intentionally or recklessly causes damage by fire to another person's property. As the Court of Appeal reminded in Tatton, the understanding of "recklessness" in Canadian criminal law "amounts to more than civil negligence, forgetfulness or absentmindedness." Rather, as the Supreme Court explained in R. v. Sansregret:

… recklessness, to form a part of the criminal mens rea, must have an element of the subjective. It is found in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and who takes the chance. It is in this sense that the term 'recklessness' is used in the criminal law and it is clearly distinct from the concept of civil negligence.

[38] In Tatton the Court of Appeal also made clear that arson is a crime of specific intent. As a result, an accused's level of intoxication is relevant in deciding whether or not the Crown has discharged its burden of proving that the accused had the required mens rea for the offence.

[39] Ms. Redsky testified in her own defence. Accordingly, I intend to follow the framework set down by the Supreme Court in R. v. W.(D.). If I believe Ms. Redsky, that she simply started the fire to stay warm and that she neither intended nor foresaw that the fire would damage the trailer and/or Mr. Shebagegit's property, then I must find her not guilty. Further, even if I do not believe her, I must consider whether her evidence leaves me with a reasonable doubt. If it does not, I must still go on and consider whether if based on the remaining evidence that I do accept I am satisfied of her guilt beyond a reasonable doubt.

[40] Ms. Redsky was clearly under the influence of alcohol on the morning in question. She began consuming alcohol on the evening of March 20, 2014 and continued to do so well into the early morning of the 21st. She only stopped drinking at approximately 3:00 a.m. She testified that she was drunk. It was her evidence that she drank 12 beers. Despite this, she was able to very clearly testify to all aspects of what occurred, including the amount of alcohol that was consumed, the actions of both herself and Mr. Shebagegit, the argument between the two of them, her specific request for him to leave the trailer and, most importantly, she has a clear recollection of both starting the fire and the process undertaken to light it. In fact, Ms. Redsky's memory of what occurred only falters at the point that she is outside the trailer and sitting in the snow bank.

[41] Ms. Redsky was not able to provide any reasonable explanation for why she did not follow what her standard practice had become for lighting a fire in the wood stove. It was clear that in the past Ms. Redsky would leave the wood stove door open, briefly, until such time as the fire was lit, after which time, she would close the door.

[42] On this occasion, we know that Ms. Redsky had an argument with her partner and was upset. It was the first occasion she had ever asked him to leave the trailer in the 2.5 years of their relationship. Her claim that she lit the fire before going to bed for warmth is difficult to accept given the evidence at trial that baseboards also heated the trailer. More specifically, given the evidence that there was a baseboard heater inside the bedroom, I am hard pressed to understand why Ms. Redsky would light a fire in the living area before going to the bedroom.

[43] Given her clear recollection of the events preceding the fire, I have concluded that Ms. Redsky was not so intoxicated that it affected her ability to appreciate the nature and consequences of her actions. While her inhibitions may have been lowered, I find that Ms. Redsky foresaw the risk of her actions and proceeded with indifference towards the inevitable result. Ms. Redsky chose to light a fire, and chose to leave the door open. She was unable to provide any reasonable explanation for why she made these decisions. It was not the case where she stated she had no recollection of whether she left the door open or not. She knew the door was left open and was simply unable to explain her actions; her decision to walk away from an open lit fire.

[44] Finally, Ms. Redsky's testimony that she did not mean to burn down the trailer is directly at odds with what I accept she said to Ms. Fair. It will be recalled that Ms. Fair reported that on that very morning, as the fire was still raging, Ms. Redsky told her that she "set the house on fire" and cited her argument with Mr. Shebagegit.

[45] For all of these reasons, I do not believe Ms. Redsky's claim that she did not mean to start the fire. Nor does her evidence leave me with a reasonable doubt.

[46] What remains is the Crown's evidence. It is an uncontroverted fact that a fire consumed the trailer, along with Mr. Shebagegit's property, on the early morning of March 21, 2014. The evidence establishes that the fire followed a heated argument between Ms. Redsky and Mr. Shebagegit, her common law spouse, which ended with her directing him to leave the trailer; which he did. Soon after the fire started, Ms. Redsky escaped the trailer and went to Ms. Fair's residence. I accept that Ms. Redsky told Ms. Fair that "I set the house on fire" and cited her argument with Mr. Shebagegit as the reason.

[47] Based on the entirety of the evidence, I am satisfied the Crown has proven, beyond a reasonable doubt all elements of the offence charged Ms. Redsky. In particular, that both the actus rea and mens rea for the offence have been proven. The voluntary act of Ms. Redsky of lighting the wood stove, leaving the door open and the fire unattended, did cause the damage by fire. I am further satisfied that Ms. Redsky was reckless in her actions, and was able to appreciate the nature and consequences of those actions.

[48] Accordingly, she is found guilty of arson (damage to property) contrary section 434 of the Criminal Code.

Released: January 29, 2015

Signed: Justice Sarah Cleghorn