Court File and Parties
Court File No.: 2811 998 Date: September 8, 2015
Ontario Court of Justice
(Central East Region)
B E T W E E N:
Her Majesty The Queen
H. Bayley, Counsel for the Crown
- and -
Joel Valdez
L. Riva, Counsel for the Defendant J. Greenwood, Counsel for the Defendant
Heard: June 30, 2015, July 2, 2015
Judgment
BLOCK, J:
Overview
[1] Joel Valdez is charged with arson as a result of a fire at the home he shared with his parents at 18 Kirk Avenue, Ajax. The sole issue is whether the Crown has proven the identity of the arsonist beyond reasonable doubt. He is also charged with breaching the term of a probation order requiring him to "keep the peace and be of good behavior". The outcome of that charge will be determined by the result in the arson matter.
Evidence
[2] Mr. Pepito Valdez related that on the evening of December 24, 2014, his wife and their mature son Joel had a happy and quiet dinner together at their home. For the senior Valdez, this was an unusually pleasant event because his testimony suggests that his son was suffering from a profound mental illness. This evidence includes the defendant's habit of wearing tinfoil hats and placing knives within the house to protect himself against potential enemies, particularly at the multiple beds and couches on which he slept in the course of a usual day. There was also some evidence that this unfortunate man was living with his parents as a result of family breakdown associated with his mental illness.
[3] Unfortunately, the defendant's behaviour had changed by the early morning of the next day. The elder Valdez found his son's mind was in a "different direction" on Christmas day 2014. Joel Valdez began a pattern of bizarre, destructive acts directed at the interior of the house. At 2:00am that morning, Pepito Valdez awoke to find that his son Joel had turned on the water in every sink in the house and splashed water on the interior walls of the family home. Joel explained to his father that he let the water out because he wanted it to be fresh.
The use of the water supply continued throughout the night, eventually involving the tub and shower as well as the various sinks. While he was engaged with the taps the defendant talked to himself. His father heard him say "leave me alone", apparently to some third parties not apparent to the older Valdez. Valdez Senior told his son to stop but he refused. At one point Joel Valdez responded by telling his father to leave. Mr. Pepito Valdez did not press the issue with his son as he didn't want his son to become angry.
[4] At about 5:30am, Pepito Valdez left for work. Before he left he turned off the main water valve to the home to prevent the continuation of the wall-splashing. His wife had left the home earlier.
[5] Pepito Valdez returned home at about 2:00pm to check up on the house and left approximately 30 minutes later to pick up his wife and attend Christmas dinner elsewhere. He locked the door upon exit. He did not see or hear his son. He assumed that Joel was sleeping as that was his usual afternoon habit. There was no evidence of fire at that time.
[6] The fire was discovered when Pepito Valdez and his wife returned home together from Christmas dinner at their daughter's house at approximately 9:00pm. The front door was unlocked and the house was unusually dark. Joel was not present.
[7] Only four people had keys to the house; the defendant, his parents and the daughter who hosted the Christmas dinner the defendant's parents attended as the fires smouldered at 18 Kirk Avenue. Mr. Valdez senior told the court that Joel Valdez doesn't entertain friends at the family home.
[8] Joel Valdez had a car parked in the attached garage and possessed a key to it. The car was still in the garage where it had been before the elder Valdez departure for Christmas dinner.
[9] Mr. Sutharsanan Shanmugasundaram lives at 24 Weld Drive in Ajax, a short distance from the Valdez home. At about 7:30pm on December 25, 2014 an Asian male attended the front door of his home and asked to use the telephone. He was dressed in bizarre manner, given the cold winter evening, in hooded t-shirt and sandals. The witness further described the male as 5'4" tall with a light brown complexion. Mr. Shanmugasundaram described the male as a "sickness person", which I took to mean an observation that the male appeared to be mentally disordered. He believed the male to be 20-30 years old. That feature was the only significant potential dissimilarity to the defendant before the court who was 38 years old at the time of the incident. The rest of his contemporaneous description was strikingly similar to that noted by the officers who arrested the defendant. In my view the discrepancy is explained by Mr. Shanmugasundaram viewing the male on his porch at night without the aid of artificial light. I also agree with the Crown's suggestion that the defendant looks somewhat younger than his chronological age. Mr. Shanmugasundaram was, quite properly, not asked to make an identification of the defendant in the prisoner's box.
[10] He told the male that he didn't have a phone and shut the door. He then saw the male stand on his front yard for ten minutes and then go sit down on his neighbour's porch. 18 Kirk Avenue is within sight of that porch. At about 8:00pm the witness called police as he was concerned that the male was cold and sick.
[11] Fire Captain Mark Sommerville testified. He and his crew attended the home at 21:40 in response to a call for service received at 21:38. When they arrived there was no smoke emanating from the fires but there was some residual heat.
[12] The fire had six independent points of origin. Three beds and three couches had been deliberately set alight. He testified that the odour of smoke is not used by fire investigators to determine whether a particular person has been at the scene of a house fire.
[13] Inspector Grant located the defendant sitting alone in a bus shelter located at Taunton and Salem Rd, about one kilometre from his home. He wore a hoodie and shorts although the weather was brutally cold. He described Joel Valdez as 5'4", about 150 lbs and Asian or Filipino in appearance. This is a description that accorded with the appearance of the defendant in the prisoner's box and that given by Mr. Shanmugasundaram. He had a lighter in his possession. There was evidence the defendant smoked tobacco.
[14] There was no evidence of a break-in or theft, nor any disorder suggesting a search for valuables at 18 Kirk Avenue. There was no evidence of vandalism, other than the burned beds and couches.
[15] P.C. Hulsman gave evidence that he walked through the house on his attendance at 18 Kirk Avenue. The windows were secure and there were no signs of forced entry. He later encountered Mr. Valdez after his arrest. According to this witness, the defendant gave off the odour of smoke from a house fire.
Analysis
[16] The Crown contends that the defendant is identified as the arsonist on the following basis: The defendant's bizarre actions on the early morning of December 25, 2014 show he had an animus toward his father that gave him a motive for the arson. He was carrying a lighter and papers that gave him the means to set fires. P.C. Hulsman smelled house-fire smoke on the defendant. He was the only key holder not present at the Christmas dinner that night. There were no signs of forced entry. He was found approximately one kilometre away from the house in inappropriately light attire for the harsh weather. This suggests hasty flight from the scene and is post-offence conduct suggesting consciousness of guilt.
[17] The defence submits that the circumstantial evidence before the court cannot exclude the reasonable possibility that some person other than the defendant entered the premises and set the fires. They argue that the alleged animus felt by the defendant toward the senior Valdez is entirely speculative. They submit that P.C. Hulsman's evidence that he smelled the odour of house-fire smoke emanating from the defendant is unreliable. The defence maintains that the evidence of post offence conduct is inadmissible in the absence of notice or a voir dire on the issue. In the event the evidence is admissible it is, at best, equivocal on whether the arrest of the defendant a short distance away from his house some hours after the discovery of the fires is a reliable indication of flight. They also submit that Mr. Sutharsanan Shanmugasundaram did not identify Joel Valdez, but if he did no meaningful conclusion follows.
[18] I am alert to the danger of propensity reasoning. Joel Valdez isn't more likely to be the arsonist because he suffers from a mental illness. The evidence of mental illness is relevant in several ways. The individual observed by Sutharsanan Shanmugasundaram was strikingly similar in appearance to the defendant on his arrest. The apparently irrational behaviour of the individual observed by this witness enhances the probability that the defendant was the person he saw at his door, standing on his front lawn and then seated on his neighbour's porch in summer apparel that frigid Christmas evening.
[19] There is no requirement that post-offence conduct be the subject of Crown application or voir dire. That aside, the mental disorder manifest in the defendant's conduct from 2:00am on Christmas morning until, at least, the time of his arrest 24 hours later is relevant to the determination of whether there is post-offence conduct that might be considered evidence of guilt. In my view the defendant's behaviour the day of the fires at his home means that his conduct cannot be assessed by comparison to the acts of a rational person. There is no evidence before the court that would permit the determination that he fled in guilty haste from the scene of the fire. We simply cannot know why Mr. Valdez chose to be at a bus shelter just over a kilometre away from his house at 2:00am on December 26, 2014, any more than we can know why he chose to walk in attire suited to an August afternoon when he had a car available to him or why he wanted to use the phone of Mr. Shanmugasundaram.
[20] I have concluded that it would be dangerous to base any conclusion on the evidence of P.C. Hulsman that he smelled house-fire smoke on the person or clothing of the defendant after his arrest. The potential accuracy of this method of determining whether a person has been at the scene of a house-fire was undermined by the evidence of Fire Captain Sommerville, above. The reliability of this purported observation is questionable in the absence of any reference to it in Hulsman's contemporary notes.
[21] The defendant's possession of a lighter on arrest isn't much use in the determination of this case. There were lighters found at the scene. Matches and lighters are ubiquitous in most homes and are small items, easily disposed. The defendant was a smoker. It is of little consequence that he had no tobacco in his possession at the time of arrest.
[22] There is no persuasive evidence of motive or animus toward the senior Mr. Valdez. On the evidence before me, Mr. Joel Valdez refused to stop splashing water on the walls and his father didn't continue the effort to dissuade him. There is simply no evidence that Joel Valdez was angry with his father as a result of this interaction or for any other reason.
[23] The defence argues that it is a reasonable possibility that someone other than the defendant set the fires at 18 Kirk Avenue. Quite reasonably, the defence doesn't argue that the defendant's parents or sister, the only other key holders, may have been the culprits. Those persons were at another location at the time of the fire and there is no evidence, nor any submission that they had a motive to commit arson. The defence submits that some intruder or vandal may have chosen that afternoon or early evening to ignite three beds and three couches in the Valdez home. As there was no forced entry and the door was unlocked on the return of the parents to the home at approximately 9:00pm, it appears that there are two potential arsonists, either Joel Valdez or someone who gained access to the home in his absence through a door he left unlocked.
[24] Nothing was missing from the home, nor had it been disturbed by an apparent search for valuables. That evidence powerfully negates the possibility that theft was the motive for the fires. There is no evidence that any person outside the home harboured an animus for any member of the family.
[25] There was no evidence of the frequency of pedestrian or vehicle traffic in the northern part of Ajax the late afternoon or evening of Christmas day 2014. However the court must consider ordinary experience and common sense in considering this issue. This area is a quiet suburb. Christmas day is a statutory holiday; it is eagerly or anxiously awaited throughout the approaching season. Shops, schools, government offices, and most places of employment are closed. The streets are relatively quiet. Residents are more likely to be in their homes then at other times. It is not a propitious time for a stranger to choose a random house for a bizarre act of arson. 18 Kirk Avenue is about one kilometer away from any arterial traffic route. Did a vandal roam the quiet neighbourhood until he found an empty house and an unlocked door? Did the vandal then ignite six separate items of furniture? While it is not possible to exclude this scenario with certainty, it seems unlikely and highly speculative. There is no evidence to support it. In these circumstances the court must look for evidence that supports or undermines the circumstantial case against Joel Valdez.
[26] I have already indicated my view that Mr. Shanmugasundaram met with the defendant at the front door of his home at approximately 7:30 on the evening in question and saw him on his neighbour's porch 30 minutes later. It would be impermissible speculation for the court to muse on the purpose for the defendant's visit. However, the time of this meeting puts him in the immediate vicinity of 18 Kirk within one to one and one/half hours before the discovery of the fire. While not in itself conclusive, and bearing in mind that there was no evidence establishing the time the fires were ignited, this evidence places the defendant very close to the house much later than his father's departure time of 2:30pm.
[27] The defendant commenced a pattern of destructive and inexplicable acts toward the interior of the house at 2:00am on Christmas morning. The use of the house water supply and the splashing of the interior walls continued until the elder Valdez turned off the main water valve and left the house at 5:30am. It is unlikely that the wall-splashing and the arson coincidentally occurred on the same day. I cannot speculate on the reasons why the defendant was engaged in this way with the interior of the house. In my view, the ignition of the beds and couches some hours later is a continuation of a pattern of destructive conduct toward the interior of the premises begun early that morning. This does not engage the similar act doctrine, as the acts themselves are dissimilar and form a linked chain of transactions over the course of a narrative of a single day.
[28] I am aware of the burden on the Crown when they seek a finding of guilt based on inferences drawn from established facts. In Her Majesty the Queen v. Griffin, 2009 SCC 28 the Supreme Court of Canada stated, at paragraph 33, that in order to infer guilt based on circumstantial evidence, the trier of fact must be "satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty". The Court, at paragraph 34, emphasized that "the mere existence of any rational, non-guilty inference is sufficient to raise a reasonable doubt".
[29] The unlikelihood that a random arsonist or vandal set the fires coupled with the evidence of the defendant's acts throughout the day compels the following conclusion: there is no reasonable possibility on the circumstantial evidence available that any individual other than Joel Valdez set the fires at 18 Kirk Avenue on December 25, 2014. I conclude that the defendant is the author of these events beyond reasonable doubt. He stands convicted of both counts.
September 8, 2015
Justice M.S. Block
Ontario Court of Justice