Court Information
Ontario Court of Justice
Date: 2018-07-17
Court File No.: Fort Frances District Information #170154
Between: Ontario Ministry of Natural Resources
— AND —
Geoffrey Stanger
Before: Justice of the Peace P. Clysdale-Cornell
Heard on: June 19, 20, 2018
Reasons for Judgment released on: July 17, 2018
Counsel
Susan Reppard — counsel for the prosecution
The Defendant Geoffrey Stanger — on his own behalf
Judgment
JUSTICE OF THE PEACE Clysdale-Cornell:
Charges
[1] This is my judgment in the matter of Geoffrey Stanger. He has been charged that on May 10, 2017 at 79 Pair A Dice Road, Halkirk Township, Judicial District of Rainy River, Northwest Region did commit the following offences:
Did being a person in charge of a fire outdoors, did unlawfully fail to take all necessary steps to tend the fire, keep the fire under control, and extinguish the fire before leaving the site, contrary to section 1(3) of Ontario Regulation 207/96, made pursuant to the Forest Fires Prevention Act, thereby committing an offence pursuant to section 35(1) of the Forest Fires Prevention Act, R.S.O. 1990, c. F.24 as amended.
Did unlawfully start a fire outdoors without a permit, contrary to section 2 of Ontario Regulation 207/96, made pursuant to the Forest Fires Prevention Act, R.S.O. 1990, c. F.24 as amended thereby committing an offence pursuant to section 35(1) of the Forest Fires Prevention Act, R.S.O. 1990, c. F.24 as amended.
Overview of Evidence
[2] I have carefully reviewed all the evidence before me on this matter. This was a very interesting case with no real agreement on the facts. The Defendant presented no evidence on his own behalf except through cross-examination of prosecution witnesses. Mr. Stanger also presented some pictures of the area where the fire was located but they were of little use since they were taken a year after the incident.
[3] I would like to first review the elements of each of the offences that the prosecution is required to prove beyond a reasonable doubt for the court to make a finding of guilty.
Element 1: That There Was a Fire
[4] The court is satisfied that there was indeed a fire on Geoffrey Stanger's property at 79 Pair a Dice Road on May 10, 2017. It was located on the corner of the road and Mr. Stanger's driveway. Ms. Leatherdale, a neighbor and first on the scene, witnessed the flames and called for assistance. This is further supported by Mr. Hakala's testimony. Mr. Hakala has been a fire ranger and crew leader with the Ministry of Natural Resources for eight fire seasons and has investigated fires for five seasons. He also works as a fire fighter in New Zealand during the winter months. His experience in the investigation of outdoor fires was helpful to the court. He testified that there were some hot-spots that his crew found as well as undisturbed white ash – all indicators of a very recent fire.
Element 2: That a Permit Was Needed
[5] Conservation Officer Jourdain testified that a fire permit was needed between April 1 and October 31 unless certain conditions outlined in Section 2 of Ontario Regulation 207/96 were met. Officer Jourdain testified that a search of the MNR database indicated that Mr. Stanger, the owner of the property where the fire was located did not have a permit.
Analysis of Exempting Conditions
[6] Since there was no permit, the court is required to review all the conditions that need to be met for an outdoor fire between April 1 and October 31st to be set.
1. The person is burning piled wood, brush, leaves or discarded wood by-products. This fire did indeed involve the burning of discarded wood by-products so this condition was met.
2. A responsible person is available to tend the fire until it is extinguished. Both Ms. Leatherdale and Officer Jourdain testified that there was no one around the area of the fire, tending to it so this condition was not met.
3. The material is burned in a single pile that is less than 2 metres in diameter and less than 2 meters high. There was no clear evidence on this requirement so the court is unable to determine whether this condition was met.
4. The fire is started not earlier than 2 hours before sunset, and is extinguished not later than two hours after sunset the following day or earlier. Officer Jourdain testified that sunset on May 10, 2017 was 8:41 p.m. so the fire could not be started until 6:41 p.m. in order for this condition to be met. The Leatherdale call for assistance was between 3 and 4 p.m. – well outside the acceptable range so this condition was not met.
5. The fire is at least 2 metres from any flammable materials. There was no clear evidence on this requirement so the court is unable to determine whether this condition was met.
6. The person tending the fire has tools or water adequate to contain the fire within the fire site. Ms. Leatherdale and Officer Jourdain gave clear evidence that there were no hoses, buckets of water, shovels – tools that are used to contain a fire – in the vicinity so this condition was not met.
All these conditions under section 2, Regulation 207/96 must be met in order to by-pass the requirement of a fire permit during a restricted fire zone. Since they were not met, a fire permit would have been needed on May 10, 2017 for this outdoor fire in Geoffrey Stanger's yard to be legal.
Element 3: Fire Kept Under Control and Extinguished Before Leaving Site
[7] It is clear that the fire was not under control when Ms. Leatherdale arrived at the scene. The flames were table height and she did not see anyone in the vicinity to keep it under control. Mr. Hakala testified that when the MNR helicopter crew first arrived at the scene, they reported a 10 metre by 5 metre fire burning in an upslope direction. By the time everything was said and done, it had expanded to a 100 metre by 100 metre or 0.1 hectare burn area so the fire was definitely not under control. As well, the hot spots found by the fire control crew support the belief that the fire had not been fully extinguished in a timely manner.
Element 4: Identity of the Person Responsible
[8] There is one last element of the offences that have to be proven in order for the court to make a finding of guilty and that is that the person who started the fire outdoors, or the person in charge of the fire outdoors or the person tending the fire outdoors was Mr. Geoffrey Stanger.
[9] No one saw Mr. Stanger start the fire on his property and no one saw him tending the fire on his property except for the moment in time when Ms. Leatherdale and Officer Jourdain saw Mr. Stanger bring pails of water out of his house to pour on the fire. Mr. Stanger was clear in his caution statement to Officer Jourdain that he did not start the fire – that someone else did it to burn the antiques that he had in his shed. He was clear in his statement to Officer Jourdain that he was not outside burning that day. The Prosecution contends that since there is a history of fires in this location on Mr. Stanger's property that it is reasonable for the court to find that Mr. Stanger was indeed responsible for the fire on his property on May 10, 2017 and thus had responsibilities under the Forest Fires Prevention Act.
Application of the W.D. Test
[10] The Supreme Court of Canada decision R. v. W.D. comes into play. It states:
"First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused."
So the court is required to review all the evidence through this window.
Credibility Assessment and Circumstantial Evidence
[11] Ms. Leatherdale testified that Mr. Stanger was on his property at the time of the fire on May 10, 2017. She testified that he was yelling at her to not go on the property and they did have a discussion at that time about some difficulty that Mr. Stanger had with her husband. She also testified that there is a history of fires in that location and there are very few people living on that road.
[12] Both Ms. Leatherdale and Officer Jourdain saw Mr. Stanger bring pails of water to try to extinguish the fire and Travis Hakala's testimony supports the view that the fire was very recent with white ash and hot spots.
[13] As a private road with only four homes on it, the court believes that only a few people would have access, so it would be very unlikely that a stranger would have started the fire.
Conclusion
[14] Based on all the evidence taken in totality, I believe that Mr. Stanger was responsible for the fire at 79 Pair a Dice Road, Halkirk Township on May 10, 2017. I don't believe Mr. Stanger's statement to Officer Jourdain that he was not outside burning on May 10, 2017 and none of the evidence raised by Mr. Stanger through cross-examination of prosecution witnesses raised any reasonable doubt. Thus, all the elements of both offences charged are proven and I make a finding of guilty on both counts and a conviction is registered on both counts.
Released: July 17, 2018
Signed: Justice of the Peace P. Clysdale-Cornell