Court File and Parties

Ontario Court of Justice

Date: August 9, 2017

Court File No.: Cornwall ON 3911-998-16C684-00

Between:

Her Majesty the Queen

— and —

Timothy Legue

Before: Justice Kinsella

Heard on: June 27 & 28, 2017

Reasons for Judgment released on: August 9, 2017

Counsel

Julian Johnson — counsel for the Crown

William Webber — Counsel for the defendant Timothy Legue

KINSELLA J.:

OVERVIEW

[1] Mr. Legue stands charged that he on or about the 21st day of April, 2016 at the City of Cornwall in the East Region did intentionally or recklessly cause damage by fire to a hotel, the property of Indigo Inn situated at 1750 Vincent Massey Drive, contrary to section 434 of the Criminal Code.

[2] Mr. Legue has elected trial by a Superior Court judge sitting alone. The only issue for me to decide, therefore, is whether or not there is some evidence on each essential element of the offence upon which a properly instructed jury could find a verdict of guilty.

[3] The Crown's case rests almost entirely on circumstantial evidence.

FACTS

[4] Much of the evidence in this case was not in dispute. For the purposes of the preliminary hearing, it was admitted that the hotel property, referred to as both the Indigo Inn and Cornwall Lodge, located at 1750 Vincent Massey Drive in Cornwall, Ontario was damaged by fire on April 21, 2016 at around 1:30 pm and that actual damage was caused to the property, damage certainly well in excess of $120,000.00. It was conceded that the property in question is owned in whole or part by someone other than Mr. Legue.

[5] There is no issue that Mr. Legue was a resident of that property and in fact had been living as the sole tenant in room 112 for a period of time prior to the fire. Although referred to as a hotel, it would be more accurate to characterize the Cornwall Lodge as a long-term housing unit, with several tenants having lived there for months and years. The building itself is U-shaped with two levels, each level being accessed by several exterior staircases. At the south end of the building is a passageway or breezeway, an open area allowing access from the north side of the building to the south. It is in this location that the fire occurred. Room 112 is approximately three rooms east of the breezeway on the same level.

[6] The Crown called the following witnesses: Mr. Akmal Khan; Sgt. Rachel Carpenter, the forensic identification officer; Mr. Morris Lamer, a fire prevention officer with the Cornwall Fire Service; Detective Constable Ryan Campeau, the officer in charge; as well as Randy Jaeck, another tenant in the building at the time of the fire. The majority of the Crown's case relied on the testimony of Mr. Lamer as well as security video of the hotel on the date in question.

[7] Although qualified as a forensic identification officer, it would appear that Sgt. Carpenter's role was largely limited to taking photographs, in part in consultation with the fire prevention officer, as well as obtaining the security video. She did not take any measurements (i.e. the length of the breezeway, the distance between the camera and the breezeway), or do any scene diagrams. The photographs she took were entered as exhibit 1 in these proceedings.

[8] Mr. Lamer's qualifications as an expert in fire investigation and specifically in determining the origin, source of ignition and cause of fire were not challenged for the preliminary inquiry. Mr. Lamer's conclusions, which were also set out in his report entered as exhibit 4 in these proceedings, can be summarized as follows:

i. The area of origin for the fire was in the breezeway along the "north" wall. Since the openings to the breezeway are in fact located at its north and south ends, it would appear that the wall that Mr. Lamer was referring to was in fact the wall at the west side of the breezeway, as noted in exhibit 3 of the proceedings;

ii. This area of origin was conclusive based on the fire pattern and effects, which he described in his testimony as "spalling", a process which occurs when concrete is heated resulting in the creation of bubbles;

iii. There were numerous combustible materials in the breezeway including TVs, mattresses, a dresser and some garbage;

iv. While he initially had some concerns that there might be two points of origin, he later satisfied himself that that was not the case;

v. He could not identify an ignition source for the fire; however he felt he could rule out electrical or spontaneous combustion and concluded that "some form of human intervention" resulted in the fire;

vi. He could not say whether or not this was intentional human intervention;

vii. He could not rule out that a cigarette butt thrown in the area of the garbage could have caused the fire and was aware of prior situations where cigarettes were capable of sustaining themselves long enough to cause a fire;

viii. No accelerants were found;

ix. When asked how long would it take for the materials that were found in that breezeway to be engulfed in flames, Mr. Lamer testified that an estimate would be difficult given the number of variables involved. He did note, however, that there was a vast quantity of combustible materials (i.e. mattresses, garbage, etc) present in the breezeway to feed the fire. He estimated that, depending on the ignition source and the composition of the fuel, the fire could start relatively quickly (within a minute) and perhaps take as long as up to fifteen to twenty minutes; and

x. Despite the conclusion in his report that he was able to rule out spontaneous combustion as a possible source, in cross-examination he acknowledged that, without knowing the contents of the garbage bags, it was at least possible that organic materials in a bag could have combusted spontaneously, although he still felt that that was very unlikely.

[9] Testimony was heard from the building manager, Mr. Khan, that the hotel had been purchased by new owners sometime prior to April 21, 2016 and that they were in the process of renovating the rooms. This was provided as explanation for why the breezeway was filled with large debris, including mattresses and old electronics. Mr. Khan testified that those items had been there for 2-3 weeks prior to the fire. As for the bags of garbage reported to be present in the breezeway, Mr. Khan suggested that residents had likely placed those there. He also acknowledged that there had been a complaint about the garbage in the breezeway which resulted in a by-law officer attending that day and ordering the clean-up.

[10] Mr. Khan also provided commentary for the security video, which is of very poor quality and without audio. The camera angle provided is taken from the second floor of the northwest corner of the building. It is grainy and the view captured is some distance from the breezeway, perhaps as much as seventy feet or more judging from the number of parking spaces which can be seen in the video. Mr. Khan was confident that he could identify Mr. Legue and others seen on the video based on their distinctive pattern of walking, and the units they were seen coming from, as the quality of the video was such that any details for faces could not be made out unless the person was in close vicinity to the camera itself. As well, Mr. Khan himself is seen on the video towards the end and so could identify himself and the people he was dealing with during that time period.

[11] Mr. Khan made the following observations of what he could see on the video[1]:

• At 12:48:51 he sees a person he believes to be Mr. Legue coming out of room 112. That person goes into the breezeway and bends over the area where debris can be seen. The person stays bent over for some period of time, at least a few seconds;

• At 12:48:59 he again sees Mr. Legue come out of room 112. He then goes back into the passageway and again bends over in the general area where the fire is believed to have started. He remains bending over for more than a few seconds and then walks back to room 112;

• At 12:50:56 he sees Mr. Legue come out of room 112. That male walks very slowly going back towards the breezeway, although he does not enter it. Then at 12:52:26 the male he identifies as Mr. Legue goes back into the breezeway to the same approximate area as before, and again bends over for a considerable period of time, perhaps as long as thirty seconds. This is the last time that Mr. Khan was positively able to identify Mr. Legue inside the breezeway, although he did see him walking in the area between his room (112) and room 114 off and on up until 1:24 pm;

• At 1:22:35 he identifies a woman he knows as Angela (later identified as Angela Patsouris). She appeared to have exited from a vehicle that had just pulled into the parking lot. At 1:24:13 she can be seen entering into the breezeway accompanied by a male he identified as Randy Jaeck. She goes back into the breezeway at 1:24:43 and comes out again shortly thereafter. He also identified Allan Armstrong (another tenant) as being in the area in front of the breezeway as well as a male identified as "Ted", another tenant whom he had asked to assist with garbage collection that day;

• At 1:25:15 Angela can be seen entering into the breezeway and bending over the area where the fire started. She appears to be blowing and making fanning gestures over the garbage. In fact, Mr. Khan confirmed that this is what she was doing, as he was standing by the stairs just below where the camera is located and could see her;

• At 1:26:43 he identified himself on video walking over to the area and appearing to have a discussion with Angela and the males standing outside of room 114. He then turns to walk away and can be seen with a cell phone in his hand. He testified that it was at this point he had seen smoke and called 911. Some smoke is also visible on the video; and

• By 1:27:22 substantial smoke and flames are clearly visible on the video.

[12] Mr. Khan testified that he did not see Mr. Legue outside at all when he noticed the fire, and only observed him on video after the fact.

[13] Detective Constable Campeau testified that he formed reasonable and probable grounds to arrest Timothy Legue as well as Angela Patsouris based on his initial review of the security video with Mr. Khan. He testified that charges were later withdrawn against Ms. Patsouris because interviews conducted by the police with Randy Jaeck and Allan Armstrong confirmed that she only "just arrived" at the hotel before she noticed something in the breezeway and began to blow on it. Ms. Patsouris died sometime after the charges against her were withdrawn. Both Mr. Legue and Ms. Patsouris had lighters on them when they were arrested.

[14] Detective Constable Campeau also obtained a video statement from Mr. Legue. The voluntariness of this statement was conceded for the purposes of the preliminary hearing. In the statement, while Mr. Legue admits to living in room 112 and being the only person to have access to that room, he denies setting any fire or having anything to do with the fire at all, noting that he was in his room speaking with his daughter-in-law on the phone when he heard yelling and screaming and then saw smoke.

[15] Finally, the Crown called Randy Jaeck. Mr. Jaeck lived in room 115 at the Cornwall Lodge, the room just to the east of the breezeway. By the time of the fire, he had lived there for about four years and had known Mr. Legue, whom he considered to be a friend and neighbor, for about six months.

[16] He testified that, sometime after lunch on April 21, 2016 he was standing outside of his room talking with Mr. Legue, Mr. Armstrong, and a man he knew as Ted who was cleaning garbage off of the grounds. Shortly thereafter a woman he knew as Angela was dropped off in a small blue car. He believes this happened about a half hour or twenty minutes before the fire started. He did not notice anything out of the ordinary until Angela said "oh my gosh there's smoke, there's fire" and she ran into the breezeway (which he referred to as a "fire exit") to wave and blow at something. He then noticed what he described as a "little bit of smoldering". Shortly after that the fire "took off like gasoline", going up within seconds. He testified he had never seen something happen like that before.

[17] Mr. Jaeck testified that the breezeway was full of garbage and had been for three months. He said he had called to complain to the by-law officer about the garbage and the smell that morning. He admitted that he and Allen were both heavy smokers but denied throwing any butts into the breezeway. He did not see anyone else throw anything into the breezeway nor did he see what might have caused the fire. He did not think that Angela had started it although he did not "have eyes on her" the whole time. He believed Mr. Legue was speaking with him outside of his room before the fire but could not be absolutely certain. He did not see anyone other than Angela go into the breezeway, and only saw her in there after the fire had started.

[18] Mr. Jaeck was shown portions of the security video, this being the first opportunity he had had to review it. He identified himself on the video and people that he believed may have been Mr. Legue, Ted and Angela, although he could not be certain. He identified Mr. Khan on the video at about 1:27 pm yelling at Angela. At that point, the garbage was still only smoking and he could not see any flames. He agreed that the video showed certain figures entering into the breezeway at about 1:24 pm but could not identify any one person nor be certain as to how far into the breezeway they went.

ROLE OF A PRELIMINARY HEARING JUDGE

[19] Subsection 548(1) of the Criminal Code reads as follows:

548 (1) When all the evidence has been taken by the justice, he shall

(a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or

(b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.

[20] The test is well known. As set out in United States v. Sheppard (1976), 30 C.C.C. (2d) 424 (S.C.C.), the preliminary inquiry judge must find evidence of each essential element of the offence upon which, if believed, a properly instructed jury could return a verdict of guilty.

[21] This test remains the same if the evidence is direct or circumstantial. When the evidence, as in this case, is circumstantial the preliminary inquiry judge must engage in a limited weighing of the evidence that is not necessary where there is direct evidence on every element of the offence.

[22] As noted by the Supreme Court of Canada in R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, this limited weighing is not a weighing of the reliability or credibility of the evidence, but an assessment of the reasonableness of the inferences to be drawn from the evidence. It would be incorrect, however, to conclude that a preliminary inquiry judge "is entitled to discharge an accused simply on the grounds that the Crown's evidence is 'weak'." [paragraph 33]

[23] In R. v. Munoz, [2006] O.J. No. 446 (S.C.J.), Ducharme J. provides a helpful and detailed analysis of the process involved with this weighing. From that, the following principles can be gleaned:

• Inferences drawn from the circumstantial evidence need not be "compelling" or "easily drawn" [paragraph 21];

• A preliminary inquiry judge should not weigh competing inferences or choose among them [paragraph 21]; and

• Where more than one inference can be drawn, that inference most favourable to the Crown is to be considered [paragraph 21]

[24] Despite these limitations, there is nonetheless great importance attached to the role of the preliminary inquiry judge in weighing this evidence. As Ducharme, J. notes:

Any inferences relied upon by the judge to commit the accused must be both: (1) reasonably based on the evidence heard at the preliminary inquiry; and (2) reasonable. Such inferences cannot be based on speculation, no matter how seemingly reasonable. If the committal of an accused depends on an inference or inferences that cannot be reasonably drawn from the evidence - the accused must be discharged as there would be an absence of evidence on an essential element. [paragraph 22]

[25] Ducharme, J. then goes on to provide guidance on how a preliminary inquiry judge should distinguish between inferences and speculation, also known as an impermissible inference. There are two types of impermissible inferences. The first one rests on the drawing of inferences based on facts which are not established on the evidence. Inferences drawn from unproven facts are not inferences but rather conjecture or speculation. This concept was succinctly summarized in a decision from the House of Lords:

Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts it is sought to establish…if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture. [paragraph 26, citing Caswell v. Powell Duffryn Associated Collieries Ltd., [1940] A.C. 152 (H.L.)]

[26] The second way in which drawing an inference can become impermissible speculation happens when the inference "cannot be reasonably and logically drawn from the established primary facts." [paragraph 28] Ducharme, J. goes on to note that this is not an easy task, saying "It is difficult, if not impossible, to define with any precision a bright line distinction between the drawing of reasonable inferences and mere speculation." [paragraph 30]

[27] So how is this distinction to be made? Ducharme, J. provides the following assistance:

…the requirement of reasonable or logical probability is meant to underscore that the drawing of inferences is not a process of subjective imagination, but rather is one of rational explication. Supposition or conjecture is no substitute for evidence and cannot be relied upon as the basis for a reasonably drawn inference. Therefore, it is not enough simply to create a hypothetical narrative that, however speculative, could possibly link the primary fact or facts to the inference or inferences sought to be drawn…The inference must be one that can be reasonably and logically drawn and, even where difficult, it cannot depend on speculation or conjecture, rather than evidence, to bridge any inferential gaps. [paragraph 31]

ARSON

[28] To prove arson under section 434, the Crown must establish the following: the identity of the person who set the fire; that the fire was set intentionally or recklessly; that the fire caused actual damage to the property; and that the property was owned in whole or part by someone other than the accused.

[29] Both counsel agree that the leading case on the essential elements for arson is R. v. Tatton 2015 SCC 33, [2015] S.C.J. No. 33. In it, the Supreme Court of Canada sets out the requirements for both the actus reus and the mens rea. The actus reus is the damaging of the property by fire, not merely the setting of the fire. The mens rea is the intentional or reckless act which led to the damage caused by fire. As the court noted, "no additional knowledge or purpose is needed. No complex thought or reasoning processes are required." [paragraph 48].

[30] While recklessness is not defined in the Criminal Code, the definition can be found in the case of R. v. Sansregret, [1985] 1 S.C.R. 570, where the court defined recklessness as being aware that the conduct you are engaging in could bring about the result prohibited by law, but nonetheless persisting in that conduct despite being aware of the risk.

APPLICATION OF THE FACTS TO THE LAW

[31] In this case, for the offence of arson the two essential elements which the Crown must establish that are not admitted are as follows:

i. That the fire was set intentionally or recklessly; and

ii. The identity of the accused who set the fire.

[32] As previously indicated, both of these elements rely entirely on circumstantial evidence.

[33] On the issue of whether or not the fire was intentionally or recklessly set, I am mindful of the admonition given by the Supreme Court of Canada in R. v. Arcuri, supra, that I am not to discharge an accused simply because I feel the evidence is "weak". The evidence of Mr. Lamer could support an inference that the fire was intentionally or recklessly set, even though it also supports other inferences (for example, that the fire was accidentally set by a carelessly discarded cigarette or that the festering garbage may have spontaneously combusted). As such, I find that there is some evidence upon which a properly instructed jury could conclude that this element is made out.

[34] On the issue of identity, the Crown submits that there is circumstantial evidence to support that Mr. Legue was the person who intentionally or recklessly started the fire that caused the damage. The Crown concedes that, while there may be other inferences, there is still this inference which remains and that is sufficient for the test for committal.

[35] The evidence the Crown relies on can be summarized in the following fashion. Mr. Legue is identified on the security video being in the area of the breezeway on more than one occasion in the time leading up to the fire, apparently bending over the garbage. He is found in possession of a lighter when arrested. Therefore, the argument goes, a trier of fact could draw the inference that he was the cause of the fire and the damage.

[36] As with the issue of the cause for the fire, there is more than one inference to be drawn from the video evidence at least as far as identity. While Mr. Khan was quite certain in his identification of Mr. Legue, Mr. Jaeck was not and in fact could not really identify anyone with any certainty on the video. This is not surprising given the quality of the video. However, as I am not to prefer one inference over another it is clear that a properly instructed jury could prefer the testimony of Mr. Khan and conclude that Mr. Legue is the man seen on the video bending over the garbage in the breezeway.

[37] There is, however, one additional fact that is necessary in order for the full inference to be drawn, in other words for the inference to be permissible and not speculation. That fact is that the action or actions which led to the fire started at the time the accused is seen in the breezeway.

[38] The Crown conceded in his submissions that the last time the accused can be identified as being in the breezeway was at approximately 12:52 pm. Although the video does appear to show someone in the breezeway at 1:06 pm, the Crown fairly conceded that a properly instructed jury would not be able to conclude that that person was Mr. Legue, as Mr. Khan was unable to make that identification.

[39] The evidence is also clear that the fire started, insofar as smoke was first seen, at about 1:25 pm and that full smoke and flames are visible on the video by 1:27 pm. It would appear that Mr. Khan called 911 by 1:26 pm. The evidence is also clear that, once noticed, the fire spread very, very quickly, moving from smoldering to full flames in only a few minutes.

[40] The last time anyone can place Mr. Legue at the scene where the fire is believed to have started is at 12:52 pm, a full thirty-three minutes before smoke is noticed. The Crown's own expert witness testified that, in his estimate, the time from ignition to fire could be as short as a minute and as long as twenty minutes. He also added that given the amount of combustibles available in the breezeway, he would expect the fire to move fairly quickly. Based on his best estimate, then, the ignition source used to start the fire would have occurred no earlier than 1:05 pm.

[41] The Crown submits that the evidence of the expert was only a "guesstimate" and not a "firm conclusion". I cannot accept this submission. However, even if I were to do so, it does not resolve the essential problem. As noted by Justice Ducharme, a trier of fact is not permitted to draw an inference "based on facts which are not established on the evidence." Any suggestion by the Crown that the fire could have taken longer than twenty minutes to start is not a proven fact before the court. Any inference based on that fact, therefore, is not an inference at all but rather mere conjecture or speculation.

CONCLUSION

[42] The British poet Samuel Butler said "Life is the art of drawing sufficient conclusions from insufficient premises." While that well may be fine for the artist, it is clearly an impermissible task for a justice presiding over a preliminary inquiry. I am not satisfied that the inference the Crown is seeking to have drawn on the issue of identity is based on proven facts. As such, it is not a permissible inference that could be drawn by a properly instructed jury.

[43] Based on a consideration of the whole of the evidence, therefore, I am not satisfied that a sufficient case is made out to put the accused on trial for the offence of arson and Mr. Legue is discharged on that count.

Released: August 9, 2017

Signed: Justice D.A. Kinsella

[1] Although Mr. Khan testified that the time stamp on the video was correct, in fact Detective Constable Campeau testified that it was about twenty minutes fast. As such, any times referred to in this decision have been adjusted to reflect the approximate actual time of the scene depicted on the video.