ONTARIO COURT OF JUSTICE

DATE: 2024 09 09 COURT FILE No.: 999 22 22200602-00

BETWEEN:

THE KING (CITY OF TORONTO)

— AND —

XUEYONG XU

Before: Justice of the Peace Mary A. Ross Hendriks

Heard on: April 3, 2024 Reasons for Judgment released on: September 9, 2024

Counsel: Ms. Mathurin, Solicitor, City of Toronto Mr. X. Xu, Self-Represented Defendant

JUSTICE OF THE PEACE ROSS HENDRIKS:

INTRODUCTION:

[1] I conducted this Part III trial under the Provincial Offences Act, R.S.O. 1990, c. P. 33, on April 3, 2024, with the assistance of a Shanghai interpreter. The defendant, Mr. Xueyong Xu, stated that he was representing himself at this proceeding.

THE CHARGES:

[2] The defendant is charged with two offences pursuant to section 28(1)(c) of the Fire Protection and Prevention Act, 1997, S.O. 1997, C.4, which provides that every person is guilty of an offence if he or she, subject to subsection (2), “contravenes any provisions of this Act or the regulations.”

[3] The strict liability offences for which the defendant is charged are that on or about January 19, 2022 at 164C Edmonton Drive, Toronto, Mr. Xu:

(1) failed to ensure that if a fuel-burning appliance or fireplace is installed in a suite of residential occupancy, a carbon monoxide alarm shall be installed adjacent to each sleeping area in the suite, pursuant to Sentence 2.16.2.1.(1) of Division B, of the Ontario Fire Code, O. Reg. 213/07, as amended, contrary to the Fire Protection And Prevention Act 1997, S.O. 1997, C.4, Subsection 28(1)(c); and

(2) failed to ensure that smoke alarms shall be maintained in operating condition, pursuant to Sentence 6.3.3.3(1) of Division B, of Ontario Fire Code O.Reg. 213/7 as amended, contrary to the Fire Protection And Prevention Act 1997, S.O. 1997, C.4, Subsection 28(1)(c).

[4] Mr. Xu entered pleas of not guilty to both counts as read.

THE PROSECUTION’S EVIDENCE:

Testimony of Inspector McGee:

[5] Inspector Vincent McGee, badge #3771, testified that he is an Inspector with Toronto Fire Services (“TFS”) and has been so employed for eleven years. He was an Inspector with TFS on January 19, 2022, and conducted an inspection at the property located at 164C Edmonton Drive, Toronto.

[6] He testified that he first attempted to perform an inspection of this property on December 2, 2021, in response to a complaint from “Alexander”. He was relying on his authority under s.19(2) of the Fire Protection and Prevention Act, 1997, which permits him to inspect a property for the purpose of assessing life safety at all reasonable times.

[7] Inspector McGee testified that on that date he attended and met someone on site, but access was not granted access. He next attempted to inspect this property on January 19, 2022.

[8] When Inspector McGee attended on January 19, 2022, he was granted access to the lower level of this home by Bruce McDonald, who identified himself as a tenant. He described this premises as being a semi-detached, multi-level home. This home had an upper level, and a lower level, at the time of his inspection. Although he sought access to the upper level as well, he added that he was not provided access to it at that time.

[9] He was only provided access to the lower level by Bruce McDonald, who gave him access to both stories within the basement level of this property.

[10] Once inside the lower level of this property, he observed smoke alarms installed on both the upper story and the lower story of the basement. He tested these devices. The smoke alarm on the upper story of the basement level was tested using the test button, multiple times, and the alarm did not sound. He investigated it further, and while there was a battery in place, no alarm sounded.

[11] Inspector McGee inspected both the upper and lower story of the basement for carbon monoxide alarms. He checked the walls and the ceilings where such devices were required. There were no carbon monoxide devices installed or observed.

[12] Inspector McGee did observe a fuel-fired appliance, being a gas furnace, located on the upper story of the basement unit. As a result, a carbon monoxide device is required to be installed outside of the sleeping areas.

[13] During examination-in-chief, when asked to describe the layout of this basement, he testified that this basement consisted of two stories. The upper level contained a kitchen, a dining area and a furnace room. The lower level of this basement contained sleeping rooms. He confirmed it had two bedrooms, a bathroom and one additional room which had its door locked, and for which there was no access at the time of this inspection. He testified that a carbon monoxide alarm was required in the hallway outside of the sleeping areas on the lower story.

[14] He was asked in chief if a hall had a couch, could a carbon monoxide device be under it on the floor? He responded that it could not, since it must be installed in accordance with manufacturer’s specifications, which would be plugged in or battery installed on the wall or ceiling.

[15] He described the hallway outside the sleeping area as including stairs to the upper dwelling unit. It also had an access door to a bathroom and an adjacent bedroom and a locked bedroom.

[16] When asked to describe his observations and whether he could see a carbon monoxide alarm installed anywhere from the sleeping rooms into that hallway, he replied that he did not see one.

[17] Inspector McGee stated that the hallway had a staircase that led to the upper story of the basement unit. This upper story of the basement contained a furnace room, a dining area, a kitchen, and a front entrance way that leads out to grade.

[18] When asked about the upper level of this building, Inspector McGee replied that there was a way to go from the basement level to the upper level, since he saw stairs leading up to a door that divides the two separate living areas. He did not access the upper level during this inspection.

[19] The Prosecutor shared her screen, and he identified a Notice pursuant to the Evidence Act, which was served on the defendant on August 30, 2022 by prepaid first class mail, and sworn on August 31, 2022, as Appendix “A”. In particular, the documents in Appendix “A” which he identified included a copy of the Information, pages of the continuation of it, and a copy of the Summons. In addition, he identified items relied on as evidence as Appendix “B”. The defendant acknowledged receipt of same and I entered them collectively as Exhibit 1.

[20] Inspector McGee described the smoke alarm he found in the kitchen and dining area of the upper level of this basement. He said it was installed at the ceiling level. He tested it by depressing the test button. He expected to hear an intermittent beeping sound, but this smoke alarm did not emit any noise when tested.

[21] Inspector McGee took some photographs on January 19, 2022 during his inspection. In particular, he created a photo log for this inspection which included his name, badge number, date of inspection and address of the premises. These photographs were introduced as evidence at this trial. They were all signed by Inspector McGee and dated.

[22] Photograph #1 was of the gas supply line serving the fuel-fired appliance, that being the water heater.

[23] Photograph #2 was of the gas-fired furnace located in the lower unit in the same room as the water heater.

[24] Photograph #3 was of the smoke alarm located in the lower unit’s kitchen. He described the buttons on this unit, and how he tested it.

[25] Photograph #4 was the magnetic fob lock on the access door to the lower basement unit.

[26] Photograph #5 is the front entrance to the upper and lower units of 164C Edmonton Drive, Toronto. The front door for the upper level has steps and a banister, and the lower level has a door to its entrance, to the left of the garage door on the driveway. The basement entrance is below the balcony.

[27] Inspector McGee testified that these five photographs are a fair and accurate depiction of the property on the date in question. They were entered collectively as Exhibit 2.

[28] Inspector McGee testified that he conducted a title search for this property, under the Registry Act/Land Titles Act. It appeared on the screen and was a certificate from the Ministry of Government and Consumer Services, Service Ontario, Land Registry Offices. It was run on April 2, 2022 and signed by the representative for the Land Registrar as being a true copy of instrument # 10004-0309, and on p. 2, the owner was listed as Xueyong Xu. It was clear from this document that Mr. Xu purchased this property on August 15, 2011, and that he continued to be the last registered owner of it.

[29] Another signed certificate from the Land Registrar, bearing instrument number AT2784297 was also shown to Inspector McGee, who identified it as well. The legal description of instrument #10004-0310 and 0309 bears the municipal address of 164C Edmonton Drive, Toronto. It also disclosed that the defendant had this property transferred to him on August 15, 2011, and that he was the owner of it at the time of the alleged offence.

[30] These title search documents were collectively entered as Exhibit 3.

[31] Based on the results of these title search documents, Inspector McGee testified that he issued a Fire Services - Notice of Violation to Mr. Xu, as the owner of the property located at 164C Edmonton Dr, Toronto. Inspector McGee testified that it was in his name, dated January 19, 2022 and signed by him. It was entered as Exhibit 4.

[32] This Notice of Violation advised the defendant to take corrective action immediately and notify TFS upon completion. It required him to install a carbon monoxide alarm and indicated that the smoke alarm was not operational. Inspector McGee issued it to the defendant by leaving it in the mailbox on site. Inspector McGee did receive notification of compliance, in the form of an email from Bruce McDonald, the person identified as the basement tenant, who confirmed that the smoke alarm battery had been replaced and that a carbon monoxide alarm was plugged in. This evidence was admitted not for the truth of its contents but to explain what Inspector McGee did next.

[33] Inspector McGee did another inspection of this premises on February 9, 2022. He tested the smoke alarm using the test button and found it to be operational, and that a carbon monoxide alarm was installed outside the sleeping areas and was tested and found operational as well. The carbon monoxide alarm was plugged in adjacent to the bathroom entry door on the lower story of the basement, located in the hallway outside of the sleeping areas.

CROSS-EXAMINATION OF INSPECTOR MCGEE:

[34] During cross-examination, Mr. Xu put on the screen a diagram of this premises (Exhibit 5). He asked Inspector McGee if this layout exactly matched his inspection? He replied that yes, it was the drawing he had made, not to scale, of the lower story of the basement unit.

[35] Mr. Xu pointed to a red point on this diagram, and asked him if it was where Mr. Xu had installed the carbon monoxide alarm? Inspector McGee replied that at the time of the inspection, he did not see one.

[36] Mr. Xu asked him whether he had looked at the corner of the lower basement at the time of the inspection? Mr. Xu showed him a photograph (Exhibit 5). Inspector McGee indicated that yes, he had inspected it and that he had also inspected the floor and ceiling areas of the lower story and he did not see the carbon monoxide alarm.

[37] When asked if he did not see the equipment or if he did not look at this place, he responded that he had observed the walls. Mr. Xu put up a photograph of a disheveled room (Exhibit 5) and said that he had checked his camera and noticed that Inspector McGee did not look at this place. Inspector McGee responded, “I don’t recall this, these items in this photo to confirm that.”

[38] Mr. Xu stated that he was trying to enlarge a photo. I stated on the record this photograph included the room with the shelf, the vacuum cleaner, and some things on the shelf. I asked Mr. Xu if he was asking the inspector to tell us if he remembers seeing what you are showing us right now, and he confirmed that this was his question. Inspector McGee said that he did have a recollection of this corner as the carbon monoxide alarm in the plug in.

[39] Mr. Xu asked, so I assume you saw that carbon monoxide equipment was there at that time? He responded, “I did not observe that in that corner, no.”

[40] Mr. Xu returned to the diagram of the lower level, which he said was a picture near the kitchen, and asked him about the red mark, which he stated was the carbon monoxide detector. Inspector McGee stated, “No. I did not observe a smoke detector in that location.”

[41] Mr. Xu’s photographs and diagram with the red mark on it, as shown during the trial, were collectively made Exhibit 5.

[42] Mr. Xu showed him a photograph and asked him if he observed the location or just did not see it, and he responded, “I don’t have a recollection of seeing a smoke alarm in the furnace room.”

[43] Mr. Xu then asked him if he observed that location, and he replied, that, “Yes, my photo log has photos of that location. But but I don’t recall seeing a smoke alarm.”

RE-EXAMINATION OF INSPECTOR MCGEE:

[44] The diagram was shown again, and Inspector McGee was asked if he had made this drawing. He replied that he had made this diagram, “…except the red spot. I didn’t make that”.

[45] The Prosecutor asked him if where the red mark is on the diagram is the photo that Mr. Xu showed of the under-stair photo? Inspector McGee stated, “I believe so, yes.”

[46] The Prosecutor asked if that is a wall or ceiling where a carbon monoxide alarm should be installed? He responded that the walls in that area would be an acceptable location for a carbon monoxide alarm. He further testified that this location would be acceptable.

[47] With respect to the photograph shown by Mr. Xu, he testified that a carbon monoxide alarm is plugged into the outlet on the wall.

[48] Inspector McGee was asked on January 19, 2022, did he observe a carbon monoxide alarm installed in this wall? He responded, “No, I did not.”

MR. XU’S TESTIMONY:

[49] Mr. Xu took the stand and was affirmed.

[50] He referred to the diagram created by Inspector McGee with the red spot on it, which was shown on the screen. He testified that the day the inspector came on January 19, 2022, he had this carbon monoxide equipment in the corner where the red star is located.

[51] Mr. Xu displayed a photograph, which showed a beige device on the floor. He testified that he placed that equipment in the corner, leading to the furnace room. He said if it were to leak, it was the most sensitive corner.

[52] Mr. Xu stated that he heard the inspector state that it was acceptable to have this equipment in that place.

[53] He displayed another photo, and stated that, “I assume it was easily neglected because I had lots of stuff around that corner.” Mr. Xu added, “And there is a camera on the left side. I reviewed that camera about the day when the inspector was here. I noticed that the inspector didn’t approach that corner.“

[54] Mr. Xu testified that on that day, “the contractor who is in charge of the equipment was taking my stuff to change the battery. So the, the other one was not there. McDonald, that Bruce McDonald tenant, was I think, he installed the stuff two hours later after the inspector left.”

[55] Mr. Xu stated as follows:

And on the level of the kitchen, the alarm, smoke alarm, it was true, as the inspector mentioned, that the battery was finished. And the battery was not old. It’s been, it was, it had been changed not long before.

[56] One of Mr. Xu’s tenants had an issue with another man, Alexander, and he checked the record of communication between them. The Prosecutor objected to this evidence as being hearsay. I explained the issue of hearsay to him but permitted him to tell me why he was advising me of this issue.

[57] Mr. Xu stated that he believed that the inspector arrived because of Alexander. I permitted that testimony but I asked him to focus his evidence on the smoke alarm and the carbon monoxide device please.

[58] Mr. Xu testified that he wanted to tell the court that Alexander took his good battery and replaced it with a bad battery. The Prosecutor objected. I ruled that this testimony was speculative unless he could base it on his own observations. He maintained that Alexander replaced the good battery with a bad battery and then called the inspector.

[59] When I asked him how he knew this, he claimed that the battery that did not work was different from the battery he had just installed not long before.

[60] Again, he referred to the diagram with the red dot on it and said that the smoke alarm and carbon monoxide equipment were at that location and working. He stated that the photograph the inspector took from the outside could not reach that corner and it was on the wall.

[61] Mr. Xu claimed that the smoke alarm was on the wall and pointed to the red dot on the diagram again. He said that it was on the wall in the furnace room, and that he needs to replace it in 2028, since it was dated “May 2018”, as seen in his photograph, and he installed in 2019. He added that it was working, since it was only two years old. He added that he installed the smoke detector at this place as well.

[62] Mr. Xu said that he installed a smoke detector in an acceptable location, near the electric stove, but it had been removed, because whenever the stove was in use, it caused the alarm to go off by mistake. He said that they removed it, so he installed it again in 2019, in that corner. He said that the tenant took the battery out and he installed it again.

[63] He said that by 2019, he had installed a new one and that when the inspector was there, it was working. The reason why the inspector found it was not working was because Alexander had replaced it with a bad battery. The Prosecutor objected. She stated there was no information to support the allegation that Alexander did this, and no observation to prove Alexander removed the good battery. I allowed the objection.

[64] I asked Mr. Xu if he had anything else he wished to state and he said that this was all of his evidence.

CROSS-EXAMINATION OF MR. XU:

[65] The Prosecutor asked Mr. Xu to go back to the photographs he took of the area identified as under the stairs, and she asked if that staircase leads to the upper level? He said, yes, the stairs lead to the upper level.

[66] She asked him about another photo and the device in the centre of it. He said it was carbon monoxide equipment. She asked him if this device is behind the collection of other things closer to a box in the middle of a photo? He said, “yes”. He explained that the device was on the wall under the staircase, “on a shelf against the wall”. She asked if it was attached to the wall or on the shelf beside the wall? He stated, “it works when it sends carbon monoxide… never mind its on the shelf or it’s again, on the wall.”

[67] She asked him if he agreed that the carbon monoxide device was on a shelf and not on a wall? He said there is no difference whether it is fixed on a shelf or fixed on a wall.

[68] She asked him if he agreed that the manufacturer’s instructions say it should be on a ceiling or on the wall? He stated that, ”the manufacturer says it should be on a ceiling or a wall. But this is by the wall. It’s on the shelf, but the shelf is not the floor.”

[69] In the photo, it was at the back of the shelf behind a box and a large plastic bag. It was higher than the electrical socket, by the wall.

[70] She asked him if he agreed that there is no date on his photos? He agreed that they have no date.

[71] She asked him if the photos he displayed could have been taken after the inspection? He said that the equipment was manufactured in 2018, maybe 2016, so none of the things were made after the inspection.

[72] She asked him if when he showed a photo of the camera if he could have used zoom to show the date of it, and he agreed, stating, “ yes”. He could have done it with the carbon monoxide alarm. He said, “Well, I didn’t think about this. This can show that this is not the stuff I bought after the inspection. I want to tell the Court that I had this before. It’s not so brand new.”

[73] She asked him if he agreed that the date the carbon monoxide alarm was manufactured was not shown in any of his photographs and he agreed. He also agreed that his photographs did show the date the smoke alarm was made. He agreed but responded that he “didn’t think about this”. He offered to take another photo with the date of manufacture on it. He did not have it with him now at the trial.

[74] She asked him about having his camera and watching the inspector, but not providing that surveillance footage in his evidence? He responded, “I didn’t expect that after such a long time. We have to come to the court, to use this evidence…the camera was already a long time ago, it’s no longer in record.”

[75] She asked him if he received the Notice of Violation regarding the missing carbon monoxide device? He responded that he did not receive this Notice of Violation at the time, since he was working in Calgary and was not in town.

[76] She asked him if he communicated with his contractor? He stated he did not have a written record but had communicated with the contractor by telephone.

[77] She asked if the contractor was Bruce MacDonald? He replied that Bruce MacDonald is not his contractor, and that he just had a “contact” with him “to install this stuff.”

[78] She asked him why he was asking Mr. MacDonald to install the carbon monoxide alarm in the hallway outside the sleeping area, if you already had one in that area? He stated, “it was that kind of emergency.” He claimed that, “the contractor had taken the equipment out to, for, for replacing the battery, and I asked MacDonald to put in the extra one.”

[79] The Prosecutor asked him if his contractor took equipment out? He replied, “yes, he took it away to replace their battery.” She then asked which device? The carbon monoxide alarm? He said, “yes, yes.”

[80] The Prosecutor said, “I thought you said the carbon monoxide device was functioning when the inspector attended? He said, “And that’s the other one.”

[81] She said, are we talking about the carbon monoxide alarm under the stairs? He replied, “I had two! One inside and one outside.”

[82] The Prosecutor asked him if he was now telling us, for the first time, that he had two carbon monoxide alarms and his contractor had taken one away? He replied, “Yes.”

[83] She asked him if it wasn’t true that he had no carbon monoxide alarm present and only after seeing the surveillance and seeing the inspector did not look behind all this stuff, he put one there? He responded, “I recollect it when I was in Calgary. I remember that there is another one there and I asked McDonald to put it that one. Because the one that is outside, close to the furnace was there for a long time, the old one.“

[84] She asked him about one photo of the location under the stairs where the shelf is, which had a date in the top left corner of 2023-03-28. He confirmed he could see that date on that photograph. She asked him why this date was one year later than the offence date? He said it was “a new picture because I wanted to indicate this location.”

[85] When asked why he did not have any photographs taken from the time of inspection, he said he was in Calgary at the time. He said he took this picture, newer picture, a year late, “it’s just for attending court.”

[86] She put to him that he received the Notice of Violation in relation to a missing carbon monoxide alarm, and at no point in time did he think of providing information until a year later. He replied, “This picture was taken a year later, but the other ones were older.”

[87] She asked him if he would agree that he never saw anyone removing the batteries from the smoke alarm? He said, “I have provided evidence about the conversation about it.”

[88] She asked if anyone observed Alexander or anybody else remove the batteries from the smoke alarm, and he stated, “No, I didn’t watch them change the battery.”

[89] She asked if he rents out this house as an Airbnb? He replied, “yes”.

[90] She asked if he rents it to tenants, and he replied, “yes” as well.

[91] She asked him if he keeps records of who came and who left? He said, “I think I have some record.”

[92] She asked him if he had kept detailed records of his Airbnb tenants, including dates, names and amounts paid, he said “yes”.

[93] She asked him if this was an income generating property for him? He replied that he uses the income to pay off his loan.

[94] She asked him if he has kept maintenance records for this property, and he replied, “yes”. She then asked him if he kept records of when things are changed or replaced, and he replied that he did not keep records of specific details.

[95] She said that in effect, you have no records to provide the court to show how you maintained any devices associated with your property? He responded, “I didn’t expect this to be relevant to this court case.”

[96] She asked him if he did not have such records because he did not think he had to? He replied, “I have to try to find the record because sometimes stuffs were purchased by the people who – I had asked somebody to buy something or, or do something. I’m I may not get the receipt. But I can try to find.”

[97] She said, you came with other information for the court and if such other records existed, you would have presented them, putting it to him that he did not have such records. He responded, “I cannot remember everything, I will try.”

REDIRECT:

[98] When Mr. Xu was asked if he wished to readdress any issues raised during cross-examination, he asked if he could tell the court the motive of Alexander and why he changed the battery? I responded to him that he could not since it was hearsay and it was speculative.

FINAL SUBMISSIONS:

Submissions by the Prosecutor:

[99] The Prosecutor submitted that the court has heard evidence in relation to two charges which were laid in relation to these allegations. In relation to his attendance at the premises of 164C Edmonton Drive, on January 19, 2022 for the purpose of an inspection, Inspector McGee made some observations regarding the lower unit at this property.

[100] In terms of count #1, he saw two gas or fuel-type appliances, specifically a water heater and a gas furnace, and the Ontario Fire Code requires a carbon monoxide alarm to be installed and adjacent to each sleeping area where these appliances are found.

[101] On January 19, 2022, the inspector viewed the hallway area outside of those sleeping rooms, including the walls and ceiling and did not observe a carbon monoxide alarm. He also attended the upper level of the basement, and found a smoke alarm, but when he tested it by pushing the button, there was no audible sound.

[102] Inspector McGee found that the batteries had been installed, but this device was not maintained in operating condition and was not working.

[103] The Prosecutor submits that the evidence of Inspector McGee is credible. His photographs corroborate his evidence and observations regarding key areas of this basement unit on that date.

[104] The Prosecutor submits that this case boils down to an assessment of credibility. She referred to R. v. W.(D.), [1991] 1 SCR 742 and the three-prong test articulated within it.

[105] She submitted that there is no issue regarding the ownership of this property. The Fire Code is clear that the owner is responsible for fire devices and safety.

[106] The Prosecutor asserted that the defendant lacks credibility. She noted that Mr. Xu could not provide any evidence why the batteries in the smoke detector in the kitchen were not operational at the time. He had no records to demonstrate when the batteries had been last changed. He testified that he was not even in Toronto when the inspection occurred.

[107] She submitted that he mistakenly believed that he had identified the smoke alarm in the furnace room photo dated a year after the inspection, and so the lack of maintenance of the smoke alarm in the kitchen would no longer be an issue.

[108] She submitted that this is a strict liability offence, and that Mr. Xu was required to show that he took all reasonable steps to prevent the prohibited act in order to raise a successful defence of due diligence.

[109] While Mr. Xu spoke of his contractor, he never provided their name, and did not provide any specific details regarding when the contractor attended nor did the contractor testify as to what tasks they performed. He did not have any specific records to demonstrate the maintenance of these devices either.

[110] It is incumbent on Mr. Xu to provide evidence to demonstrate, on a balance of probabilities, his due diligence in avoiding the prohibited acts.

[111] In terms of his credibility and reliability, his reliance on undated photographs, some of which were taken long after the inspection had occurred was troubling, since he produced them as if they were taken at the time. It was only during cross-examination when the Prosecutor observed a small date in the corner of one of the photos that he provided an explanation as it pertained to the date of all of his photographs.

[112] Even though he was not in town when he was served with the Notice of Violation, he could have asked the contractor to take photographs at the relevant time.

[113] The Prosecutor noted that his evidence shifted, from one carbon monoxide device to two of them. His evidence regarding his records of upkeep of these devices also changed from stating that he did not keep such records, to stating that he might have kept such records, and then adding that he did not know if he could collect the records. He admitted that this is an income-generating property and he should have kept such records.

[114] She described his evidence about what may have occurred as being speculative. The photographs relied upon by Mr. Xu were ambiguous in terms of the dates on which they were taken, except for one photograph, which was dated a year after the inspection. She urged me to find that the defendant lacks credibility and that he did not provide any information upon which I could rely to establish a due diligence defence.

Submissions by Mr. Xu:

[115] Mr. Xu submitted that the inspector failed to look at the corner where the carbon monoxide device was properly installed.

[116] He further submitted that the inspector also missed the smoke detector, where he had it installed towards the corner. The one smoke detector that he found on the kitchen level had a good battery in it, which he had installed earlier. He submitted that he knew who changed this battery.

[117] He argued that there were two carbon monoxide devices at the lower level, and that he took a photograph to indicate that the inspector did not notice that there was another one.

[118] The carbon monoxide equipment was not brand new, it was older by two years. The photograph of it was taken by him not long after the inspector came.

[119] In terms of safety, he stated that he is engaged in safety work himself and it is his first concern.

[120] He asserted that there were two smoke detectors and two carbon monoxide detectors, but the inspector did not see all of them. He added that he understood that the working ones, installed in the corner, cannot be easily detected.

[121] Mr. Xu submitted that he understands that the Prosecutor is relying on the evidence of the inspector, but stated, “the fact is, I always have extra equipment”. He stated that he had a second smoke detector on the cabinet and a second carbon monoxide device, which were both working, but not easily observed. He concluded by stating, “that’s my explanation.”

ISSUES:

[122] The following are the relevant issues in this matter:

(a) Has the Prosecutor established a prima facie case for the actus reus of each offence? (b) Has Mr. Xu established a due diligence defence? (c) Have either or both of these charges been proven beyond a reasonable doubt?

ANALYSIS:

The Relevant Legislation:

I. Carbon Monoxide Alarms:

[123] The Fire Protection and Prevention Act, 1997, O. Reg. 213/07, Fire Code, states verbatim:

Section 2.16 INSTALLATION OF CARBON MONOXIDE ALARMS

Subsection 2.16.1. Application and Responsibility

Application

2.16.1.1(1) Subject to Sentence (2), this section applies to every building that contains a residential occupancy and

(a) a fuel-burning appliance,

(b) a fireplace, or

(c) a storage garage.

(2) This Section applies

(a) as of April 15, 2015 in the case of buildings that contain no more than six suites of residential occupancy, and

(b) as of October 15, 2015, in the case of buildings that contain more than six suites of residential occupancy.

Landlord is responsible

2.16.1.2. Despite the definition of owner in Article 1.4.1.2 of Division A, in the case of a rental suite of residential occupancy, only the landlord shall be considered to be the owner for the purpose of applying Article 1.2.1.1 of Division A to this section.

Subsection 2.16.2 Installation Requirements

Installation Requirements

2.16.2.1.(1) If a fuel-burning appliance or a fireplace is installed in a suite of residential occupancy, a carbon monoxide alarm shall be installed adjacent to each sleeping area in the suite.

(2) If a fuel-burning appliance associated with building services is installed in a building, but not within a suite of residential occupancy, a carbon monoxide alarm shall be installed

(a) in the service room or area where the appliance is installed,

(b) adjacent to each sleeping area in each suite of residential occupancy that has a common wall or common floor/ceiling assembly with the service room or area where the appliance is installed, and

(c) adjacent to sleeping rooms that are not within a dwelling unit.

(3) If a building contains a storage garage, a carbon monoxide alarm shall be installed

(a) adjacent to each sleeping area in each suite of residential occupancy that has a common wall or common floor/ceiling assembly with the storage garage, and

(b) adjacent to sleeping rooms that are not within a dwelling unit.

(4) A carbon monoxide alarm shall

(a) be permanently connected to an electrical circuit with no disconnect switch between the overcurrent device and the carbon monoxide alarm.

(b) be battery-operated, or

(c) be plugged into an electrical receptacle.

(5) A carbon monoxide alarm shall meet the requirements of CSA-6.19, “Residential Carbon Monoxide Alarming Devices” or UL 2034, “Single and Multiple Station Carbon Monoxide Alarms.”

(6) A carbon monoxide alarm shall be mechanically fixed, attached, plugged in or placed at the manufacturer’s recommended height or, if the manufacturer has not recommended a height, on or near the ceiling.

(7) A carbon monoxide alarm that is installed adjacent to a sleeping area shall be equipped with an alarm that is audible throughout the sleeping area, even if any doors between the carbon monoxide alarm and any parts of the sleeping area are closed.

[124] The term, “carbon monoxide alarm” is not defined in O.Reg. 213/07, the Fire Code. However, Section 1.4.1.2. provides the following definition of “Alarm signal”:

Alarm signal means an audible signal transmitted throughout a zone or zones or throughout a building to advise occupants that a fire emergency exists.

[125] Similarly, O. Reg. 213/07, the Fire Code, also provides:

Subsection 6.3.3. Smoke Alarms – Maintenance and Testing

Application

6.3.3.1.(1) This Subsection applies to smoke alarms in

(a) suites of residential occupancy,

(b) guest suites,

(c) sleeping rooms not within a dwelling unit, and

(d) other occupancies in which smoke alarms are required by the Building Code.

Landlord is responsible

6.3.3.2. Despite the definition of owner in Article 1.4.1.2. of Division A, in the case of a rental suite, only the landlord shall be considered to be the owner for the purpose of applying Article 1.2.1.1. of Division A to this Subsection.

Duty to maintain in operating condition

6.3.3.3.(1) Smoke alarms shall be maintained in operating condition.

(2) Primary and secondar power supplies that serve smoke alarms shall be maintained in operating condition.

(3) If the Building Code requires a visual signalling component that is integral with or connected to a smoke alarm, the visual signalling component shall be maintained in operating condition.

[126] Subsection 1.4.1.2 of O.Reg. 213/07, Fire Code, provides a definition of “smoke alarm” as follows:

Smoke alarm means a combined smoke detector and audible alarm device that is designed to sound an alarm within the room or suite in which it is located when there is smoke within the room or suite.

CREDIBILITY OF THE WITNESSES AND RELIABILITY OF THEIR TESTIMONY:

[127] The issue of the credibility of both witnesses and the reliability of their testimony are critical factors in this matter.

[128] I am relying on the seminal judgment in R. v. W.(D.), [1991] 1 S.C.R. 742, where Mr. Justice Cory held:

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.

[129] In R. v. Kruk, 2024 SCC 7, at paragraphs 59 to 62, Martin, J. provides excellent guidance, as follows:

The overarching principle of the presumption of innocence, enshrined in s.11(d) of the Charter, and the correlative principle of the Crown’s burden of proof, must always govern the fact-finding process. The presumption of innocence- a “hallowed principle lying at the very heart of criminal law” (R. v. Oakes, [1986] 1 S.C.R. 103, at p. 119) – requires the Crown to bear the onus of proving all essential elements of the offence charged, beyond a reasonable doubt, before a conviction may be entered (Osolin). Closely related to the presumption of innocence is the accused’s right to silence as enshrined in s.11(c) of the Charter, which safeguards human dignity and privacy against processes or reasoning that would compel an accused person to incriminate themselves with their own words (R. v. Noble, [1997] 1 S.C.R. 874, at paras. 69-78).

Various protections relating to the assessment and weighing of evidence flow from the presumption of innocence and the right to silence. Notably, an accused’s silence at trial may not be treated as evidence of guilt, as such reasoning would violate both principles (Noble, at para. 72). Likewise, it is improper to discount the credibility of accused persons on the basis that, because they face criminal penalties, they will say anything to protect themselves. Though considering the possibility that the accused may have a motive to lie will not necessarily offend this rule, courts should be wary of going further and drawing the “impermissible assumption” that they will do so in all cases (R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397, at para. 14). Such reasoning is premised on a supposition of guilt and therefore offends the presumption of innocence (para.12).

The presumption of innocence also restricts how credibility is assessed in cases of conflicting testimony between defence and Crown witnesses. The analysis of testimony must never be treated as a contest of credibility, and triers of fact need not accept the defence’s evidence or version of events in order to acquit (R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 23; R. v. W.(D.), [1991] 1 S.C.R. 742, at p.757). The burden never shifts to the accused to establish their own innocence, and the onus always lies with the Crown to prove every essential element (R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 13).

Reasonable doubt applies to credibility assessments such that if the evidence the Crown adduced does not rise to the level required of a criminal conviction, an accused cannot be found guilty simply because they are disbelieved (see W.(D.)). Some elements of the totality of the evidence may give rise to a reasonable doubt, even where much – or all – of the accused’s evidence is disbelieved. Any aspect of the accepted evidence, or the absence of evidence, may ground a reasonable doubt. Moreover, where the trier of fact does not know whether to believe the accused’s testimony, or does not know who to believe, they accused is entitled to an acquittal (J.H.S., at paras. 9-13; R. v. H. (C.W.) (1991) 68 C.C.C. (3d) 146 (B.C.C.A.); R. v. S. (W.D.), [1994] 3 S.C.R. 521, at p. 533; R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745, at para. 19). Finally, where the Crown relies on circumstantial evidence to establish guilt, the trier of fact may only convict if guilt is the only reasonable inference from the evidence (R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 30).

[130] Since W.(D.) has been decided, the Ontario Court of Appeal has interpreted W.(D.) principles in several important decisions, R. v. J.J.R.D., [2006] O.J. No. 4749 (C.A.), leave to appeal refused, [2007] S.C.C.A. No. 69 and R. v. C.L., 2020 ONCA 258, [2020] O.J. No. 1669.

[131] In R. v. A.I.B., 2024 ONCA 557, at paragraph 12, it referred to paragraph 53 of J.J.R.D., and stated:

…that an explanation for a trial judge’s outright rejection of an accused’s evidence was not limited to a rejection “based on a problem identified with the way the accused testified or the substance of the accused’s evidence”; a rejection could also be based “on a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting, credible evidence.” In C.L., this court accepted, at para. 30, that J.J.R.D. endorsed the proposition that a proper conviction could be arrived at even where exculpatory testimony has no obvious flaws if the Crown mounts a strong prosecution, but held that the “considered and reasoned acceptance” language of J.J.R.D. should not be included in a W.(D.). jury direction: see R. v. C.G., 2021 ONCA 809, 158 O.R. (3d) 721, at paras. 53-54.

[132] However, in C.G. the Ontario Court of Appeal noted, at para. 54, that J.J.R.D. does not provide “an answer to the failure of a trial judge to advert to exculpatory evidence that stands unchallenged” and that “[t]he failure to advert to such evidence, and to address it, means that the acceptance of the complainant’s evidence is neither considered nor reasoned.”

[133] Similarly, in R. v. Ruthowsky, 2024 ONCA 432 at para. 72, Copeland, J.A. urged caution and restraint in departing from the core principles of W.(D.).

[134] I have considered Mr. Xu’s evidence carefully.

[135] In R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, Karakatsanis, J. held at para. 82:

Credibility findings must also be assessed in light of the presumption of the correct application of the law, particularly regarding the relationship between reliability and credibility. The jurisprudence often stresses the distinction between reliability and credibility, equating reliability with the witness’s ability to observe, recall and recount events accurately, and referring to credibility as the witness’ sincerity or honesty…

[136] The hallmark of credibility is honesty, whereas the hallmark of reliability is accuracy. Accuracy includes the ability to observe, recall and recount events at issue.

[137] When Mr. Xu admitted that the battery in the smoke alarm in the kitchen was not functional, he attempted to blame the faulty battery in the smoke alarm on his tenant, Alexander, claiming that he had substituted a charged battery for a dead one. In the absence of some evidentiary basis on which to establish this inference, it simply amounts to unfounded speculation. Moreover, it was an attempt to shift his responsibility for fire safety as owner of the property onto his tenant, with no evidence to support this inference of sabotage, since he blamed the fire inspection on this tenant.

[138] Mr. Xu’s testimony about the number and location of the carbon monoxide alarms shifted throughout his testimony.

[139] During cross-examination, he claimed to have asked Bruce MacDonald to install another carbon monoxide alarm in the hallway outside the sleeping area, since the contractor had taken the other one out to replace the battery, so he asked Mr. Macdonald “to put in the extra one.” Mr. Xu testified that he called Mr. MacDonald while he was in Calgary, asking him to take care of this, which is coincidentally around the same time as Inspector McGee’s inspection. He never specified the actual date of this call, nor did he call Mr. MacDonald to testify.

[140] This explanation does not make any logical sense in any event. The replacement of any battery for a carbon monoxide detector could be done at the site. He did not describe any malfunction that required a repair off-site. It appears to be an attempt to explain why the inspector could not find the device in this location.

[141] He also testified that the carbon monoxide device was functioning at the time of the inspection, but stated during cross-examination that he was referring to “the other one.” He insisted that the inspector had missed seeing the second carbon monoxide alarm, but Inspector McGee’s evidence in this regard did not waiver when questioned by Mr. Xu if he saw it in the corner of the room with the shelf and vacuum cleaner (which is on the lower level), when he questioned him if he saw it near the kitchen, and when he asked if he saw it in the furnace room.

[142] The photographs he submitted of the smoke alarm in the kitchen included the date of its manufacture, but the photographs he submitted of the carbon monoxide detector did not. He testified that this was merely an oversight, but he was vague when he testified about when the carbon monoxide detector was installed. He testified he could see it on his surveillance footage, but then could not produce it, and stated that this surveillance footage was made a long time ago and no longer available.

[143] He was clearly caught off-guard when the prosecutor noticed the date of the photograph under the stairs where the shelf is, which stated 2023-03-28, since that is the location of the purported carbon monoxide detector. He claimed he took a new photograph a year later, for use in this proceeding. He claimed he did not have any photographs from the time of the inspection because he was in Calgary, even though he testified extensively about having a contractor who assists him with this property.

[144] His evidence shifted when asked about whether he kept maintenance records. Initially, he testified that he did keep such records. Then he stated he did not keep records of the specific details of when things are changed or replaced. When asked if he could produce such records, he said he would have to try to find them, since some of these items were purchased by other people, and he may not receive the receipt. This diffusion of responsibility is not consistent with the keeping of maintenance records for a rental property, and it is telling that his answer kept changing when probed further.

[145] Of all of his inconsistencies, I was most disturbed that he testified that he had two carbon monoxide devices by the end of his evidence, but earlier, he described having one of them taken away by his contractor in order to replace a battery. I find that this embellishment detracted significantly from his credibility. This is a major inconsistency, much more than a perceived inconsistency. I am cognizant that I should not examine inconsistencies microscopically when using an interpreter, as per R. v. Tran, [1994] 2 SCR 951 at p 987, but this inconsistency is telling.

[146] I find that Mr. Xu lacks credibility and that he was careless with the truth.

[147] Further, I find that his evidence is not reliable, since his recollections were hazy, particularly when he testified about what the contractor did to assist him and how he kept his maintenance records, even though he conceded that he rents out this property as an Airbnb. He did not call the contractor to testify nor did he provide the name of this contractor in his evidence. In fact, he admitted that various people take steps to assist him with maintenance, and that he does not keep careful track of these receipts. He was unable to identify when his photographs of the carbon monoxide device were taken with any precision. He appeared surprised when the Prosecutor was able to establish that one of them was taken a year after the inspection because it was date-stamped. For these reasons, I decline to give his photographs of the carbon monoxide device any weight, since I am not satisfied that they were taken at or around the time of the inspection.

[148] In assessing the credibility of the officer, I am relying on the Supreme Court of Canada’s direction in R. v. Gagnon, 2006 SCC 17, at para. 20:

Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events…

[149] In Faryna v. Chorny (1951), at page 357, O’Halloran, J.A., speaking for the majority of the British Columbia Court of Appeal described the approach to assessing credibility as follows:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say “I believe him because I judge him to be telling the truth”, is to come to a conclusion on consideration of only half the problem. In truth it may be easily be self-direction of a dangerous kind.

The trial judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothe the trial Judge with a divining insight into the hearts and minds of witnesses. And a Court of Appeal must be satisfied that the trial Judge’s finding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can be tested in the particular case. [emphasis added]

[150] I find that the officer’s evidence is highly credible. He methodically inspected the property including both levels of the lower unit. He made detailed notes and took his photographs contemporaneously at the time of this inspection, and they were all dated and labelled. I am satisfied that the dated photographs taken by him are reliable and accurate.

[151] He tested the smoke alarm in the kitchen and found it to be not working. He described the steps he took to test it in detail. He was careful in his evidence of his observations of this basement unit, and I accept his testimony that no carbon monoxide device was present in the hallway of the sleeping area as true and accurate.

[152] I was impressed by his independent recollection of this property at the time of this inspection. For example, he vividly recalled that the door separating the floors was locked, when asked if he could access the upper level of this property.

[153] During cross-examination by Mr. Xu, Inspector McGee was asked whether he recalled the corner where Mr. Xu indicated the carbon monoxide detector was plugged in. While he did recall that corner, he did not observe a carbon monoxide detector in that location. When asked if he saw a smoke detector in that location, he stated that he did not. He added that he did not have a recollection of seeing a smoke alarm in the furnace room.

[154] I am content that the prosecutor has proven the ownership of this property by way of title searches that were entered as exhibits at this trial, which established that Mr. Xu was the owner of this property located at 164C Edmonton Drive, Toronto at the time of his inspection on January 19, 2022.

Findings of Fact and Law:

[155] I accept the testimony of Inspector McGee as true that there was no carbon monoxide device present at the premises on either the upper or lower level of this basement unit at the time of his inspection. Such a device was required to be installed outside of the sleeping areas of this premises.

[156] I am satisfied that the smoke alarm located in the kitchen of this premises and examined by Inspector McGee would have satisfied the requirements of the Fire Code if the battery within it had been working. I accept as true the testimony of Inspector McGee that the battery was not working at the time of this inspection.

[157] Based on the totality of the evidence that I have heard, I am satisfied that the prosecution has established the actus reus of both offences beyond a reasonable doubt.

[158] The two charges in this trial are strict liability offences, and the Fire Code is public welfare legislation.

[159] According to Libman on Regulatory Offences in Canada, looseleaf, Earlscourt Legal Press Inc., update 28- October 2017, at page 6-2:

Public welfare offences prima facie constitute offences of strict liability. They are neither offences in which the prosecution must prove mens rea (either as an inference from the nature of the act committed, or by additional evidence), nor are they offences of absolute liability where it is not open to defendants to exculpate themselves by showing that they were free of fault…

[160] The essence of a strict liability offence is that in order to avoid conviction the defendant must prove, on a balance of probabilities, “either that he had an honest but mistaken belief in facts that, if true, would render the act innocent, or that he exercised all reasonable care so as to avoid committing the offence.”

[161] In a “normal case”, the accused alone will have knowledge of what he or she has done to avoid the breach and it is not improper to expect the accused to produce the evidence of due diligence.

[162] Mr. Xu is entitled to a due diligence defence. However, since I find his testimony to lack any credibility, this defence fails. I would not accept his speculation that his tenant changed the battery deliberately in the smoke alarm, since he has no evidence to establish this occurred.

[163] I give no weight to his testimony about the carbon monoxide detector being installed and hidden under the staircase. I accept the testimony of Inspector McGee that he conducted a fulsome inspection and that no such devices were installed anywhere in the unit, and certainly not in the hallway of the sleeping area, as required.

[164] Mr. Xu was unable to provide any maintenance records to support his evidence, nor did he call his contractor to testify about any steps taken to maintain this property, even though it was clear from his testimony that he relied upon him to do so. Moreover, he was unable to establish through his own evidence when he inspected the property or took steps to maintain it himself, such as relying on his own calendar, for example. He admitted that he was in Calgary working at the time the inspection occurred.

[165] The photographs that Mr. Xu submitted regarding the carbon monoxide device were undated, and his recollection about when they were taken was hazy. Only one photograph was date-stamped, and it was dated 2023, a year after the inspection took place.

[166] The shift in his testimony regarding the number of such devices installed in this property was also concerning, since by the end of his testimony, he had installed two of each of these devices. I reject this evidence and find that it reduced his credibility substantially.

[167] The Prosecutor has proven both counts beyond a reasonable doubt.

ORDER:

[168] I find Mr. Xu guilty on both counts.

Released: September 9, 2024.

[signed electronically]

Signed: Justice of the Peace Mary A. Ross Hendriks