Ontario Court of Justice

Date: September 19, 2024

B E T W E E N :

HIS MAJESTY THE KING

— AND —

JEANETTE BELANGER

Before: Justice Angela L. McLeod

Counsel: SONNY DUDANI, counsel for the Crown JEFFREY MCFADDEN, counsel for the Defendant

McLeod J.:

Overview

[1] A fire broke out in the garage attached to the residence located at 35 Blackcherry Crescent, in Barrie.

[2] The neighbour’s security camera captured a person approaching the garage moments before a reflection of the flames could be seen on a car parked in the driveway.

[3] The Crown alleges that person was Jeanette Belanger and that she intentionally started the fire as retribution for infidelity. Furthermore, that she did so knowing or being reckless as to whether anyone was inside the residence at the time.

[4] Jeannette Belanger and Simon Pelletier were long time partners who shared children. In the months before the fire, they had come upon difficult financial times and were living with Catherine Jenkins at 35 Blackcherry Crescent. At some point they moved out, Simon Pelletier was incarcerated, and the couple broke up. Upon his release from jail, he returned to live with Ms. Jenkins and assumed or resumed a romantic relationship with her.

[5] Thirty-five Blackcherry Crescent was something of a trap house, a drug house, a place regularly frequented by addicts and drug users. Indeed, on the night of the fire, Simon Pelletier was upstairs “doing a drug deal”. Three other people were inside at the time.

[6] Ms. Belanger stands charged that she intentionally or recklessly caused damage by fire to the residence of 35 Blackcherry Crescent, knowing or being reckless as to whether the property was inhabited or occupied; that, she intentionally or recklessly caused damage by fire to the residence of 37 Blackcherry Crescent; that, she committed a common nuisance by starting a fire and thereby endangered the lives of the public; and that, she breached her release order by communicating with Simon Pelletier.

The Security Footage

[7] The residences located at 35 and 37 Blackcherry Crescent share a common wall. The garage attached to #35 abuts the common wall.

[8] The neighbour living at #37 had a security camera installed above the front door area. The view of the camera looks down the driveway and in doing so captures the driveway area of #35.

[9] The footage on the night in question, April 20, 2023, shows the following with time stamps:

(1) 2003 hrs – two people are seen walking down the driveway of 35 Black cherry Crescent. The second of the two is wearing a short skirt or short shorts and thigh high black boots. It is not clear if they are male or female. It is not possible to identify any distinguishing or identifying features of either person, other than they appear to have dark hair. They get into a white pick up truck parked on the street immediately at the end of the driveway of 35 Blackcherry Crescent.

(2) 2303 hrs – a taxi arrives and stops on the street in front of 33 Blackcherry Crescent. Someone exits the rear passenger door and goes out of visibility. Seconds later, someone appears in between a large CUBEIT storage van in the driveway of 35 Blackcherry Crescent and the garage. The person is on screen for less than 1.5 seconds and is moving. It is not clear if they are a male or female. It is not possible to identify any distinguishing or identifying features of the person. It is not clear whether they enter the garage or walk up alongside the garage towards the front door. None of this area is captured on the video. The taxi remains on the street.

(3) 2309 hrs – a person, likely the same, walks from the garage area down the driveway of 35 Blackcherry Crescent and into the waiting taxi, re-entering the back passenger side.

(4) 2310 hrs - taxi departs the scene

(5) 2311 hrs - flickering can be seen on the rear bumper area of the car parked in the driveway of #37.

[10] One other important time stamp is derived from Exhibit #13, a series of messages purportedly between Jeannette Belanger and Simon Pelletier. Note that at the top of the phone screen is the name ‘Jeanette’.

[11] The first messages, without a time stamp, but immediately before the time stamp of THU at 11:16pm (The date in question was a Thursday), read:

The bitch is dead

If you in anyway had any intentions on changing than you would not have a new password on your phone and keeping it all secret again

The bitch is LUCKY so I don’t have all that all I have on me right now is a fucking tease. Don’t worry either. I’m gonna come back and deal with her myself or Millie give me his word OF zoo is not being very good here for good and you’ll make sure the bitch fucking pays

[12] The next messages follow the THU at 11:16pm time stamp:

Wownyou may want to hurry home if your not there or she may want to Cuz let me tell you there is quite the sureprise left behind

Oh and great job taking care of your kids and feeding them

. ........................................ Cops are here and someone saw you on camera dum fuk

[13] The next time stamp of THU at 11:36pm shows that there was an audio call which lasted 9 minutes.

Issues

A. Identity of the Person Seen on the Security Footage

[14] The person or persons depicted on the security footage derived from 37 Blackcherry Crescent is grainy and the best that can be garnered is that the person who attended 35 Blackcherry Crescent at 2003 hrs and 2303 hrs may or may not be one in the same and may or may not be wearing the same thigh high boots.

[15] The Crown submits that the identity of the person can be deduced from the circumstantial evidence of the messages purportedly between Jeannette Belanger and Simon Pelletier, especially those post 11:16pm.

[16] Mr. McFadden points to the case of R. v Aslami, 2021 ONCA 249, wherein the court held at paragraphs 11 and 30:

This case demonstrates the risks associated with not paying adequate heed to the dangers that are associated with relying on text and other messages, absent expert evidence explaining how various pieces of software, or "apps", can be used to generate these messages, and how reliable the resulting messages are in different respects. Put simply, it is too easy to use various pieces of software to create, or manipulate, messages such that they can appear to be from someone when, in fact, they emanate from an entirely different person. Similarly, the timing of the messages can be altered to suit a particular purpose.

As I said at the outset, trial judges need to be very careful in how they deal with electronic evidence of this type. There are entirely too many ways for an individual, who is of a mind to do so, to make electronic evidence appear to be something other than what it is. Trial judges need to be rigorous in their evaluation of such evidence, when it is presented, both in terms of its reliability and its probative value. The trial judge did not engage in that rigorous analysis in this case. In fairness, the trial judge was not assisted by the prosecution in this task. The prosecution ought to have called expert evidence to address the issues that the evidence posed, but they did not.

[17] The first set of messages are undated and without a time stamp. I cannot determine when they were received. The second set of messages, perhaps the most concerning, wherein the message encourages the recipient to hurry home because a surprise has been left, does include the day of Thursday and a time of 11:16pm. Although I accept that the fire occurred on a Thursday, I cannot conclude that it is the same Thursday.

B. Cause of the Fire

[18] The Fire Marshall’s office investigated the fire. A report, dated May 31, 2024, was filed as Exhibit #16. The report was augmented by the testimony of Michael Bird.

[19] Mr. Bird was unable to conclude what the source of the fire was, he wrote, “based on the totality of the fire investigation, it is the opinion of this investigator that several ignition sequences have been identified, considered, and cannot be eliminated pending additional data. Therefore, the ignition sequences cannot be isolated within the area of origin”. He determined that in fact there were 5 possible sources of ignition:

(1) Open flame from a lighter to the combustible materials.

(2) Open flame from a lit candle too close to combustibles.

(3) Ignitable liquid with vapors ignited by an open flame.

(4) A discarded lit cigarette into a carboard box smoldering then transitioning to flaming combustion of these materials.

(5) An electrical failure of the electrical distribution, wall light and electrical receptacle igniting nearby combustibles.

[20] Mr. Bird found evidence inside the garage of:

(1) Two butane lighters.

(2) A homemade candle using a metal tuna can and several other empty similar cans.

(3) Empty cigarette pack.

(4) Several aerosol cannisters.

(5) A couple of 1 litre propane cylinders and a kerosene container.

(6) Arcing to the wiring inside the wall light/electrical receptacle.

C. The Evidence of Simon Pelletier

[21] Mr. Pelletier was in custody at the time when he testified. He was a reluctant witness, to say the least. He was called by the Crown.

[22] Mr. Pelletier’s clear goal in answering questions was to blame Catherine Jenkins for the fire, suggesting that she was the one who was seeking retribution. He testified that she accessed Jeannette Belanger’s Facebook account (garnering access because he claimed that Jeannette had used Catherine’s laptop to access her account when she lived there and had never signed out of the account) and wrote the messages to Simon Pelletier in order to set up Jeannette for the fire. He claimed that Catherine did all of this immediately after becoming aware of the fire, running outside onto the street and while police and EMS personnel were putting out the fire and interviewing witnesses. He claimed that during his interview with police, Catherine took his phone from him, opened the messages and showed them to police.

[23] This version of events was the opposite to that which he had told to police initially, wherein he blamed Jeannette Belanger for the fire. At trial he testified, “I will not go against my wife, it doesn’t matter what happens, she is the mother of my children, I will take 6 months, I am ready for it”. He testified that he had lied to the police.

[24] Catherine Jenkins died two weeks after the fire.

[25] Mr. Pelletier testified that Jeannette Belanger was waiting for him at an Air BnB. He said that he had been with her earlier in the day and left to return to 37 Blackcherry Crescent around 4-4:30pm.

[26] Mr. Pelletier testified that he was not in a relationship with Catherine Jenkins at the time of the fire.

[27] I find that the evidence of Simon Pelletier cannot be relied upon. He is an admitted liar and furthermore admitted that he was prepared to lie to this court no matter the consequence, including possible incarceration.

Analysis

[28] The Crown’s case is completely circumstantial.

[29] No one was called to attempt to identify the person observed in the neighbour’s security camera footage.

[30] The Crown submits that the identity of the person in the footage can be garnered by concluding that the person who approached the garage had a motive to start a fire.

[31] The Crown submits that the motive to start a fire at 35 Blackcherry Crescent is evidenced by the testimony of Simon Pelletier, that he was in a relationship with Catherine Jenkins and that Jeannette Belanger was angry. The Crown submits that Mr. Pelletier’s original information to the police about the messages should be accepted over his testimony.

[32] Aslami, supra, reminds this court that in a circumstantial case, the trier of fact:

should consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused". "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. [Citations omitted.] [Emphasis in original.]

Aslami, supra, para. 47, referencing R. v. Villaroman, 2016 SCC 33

[33] I must consider the evidence as a whole. As noted in Aslami, supra, at para. 49:

Viewing the evidence as a whole is a critical part of its necessary evaluation, especially in a circumstantial case, in determining whether it proves guilt beyond a reasonable doubt. As Watt J.A. said in R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at para. 81: "It is essential to keep in mind that it is the cumulative effect of all the evidence that must satisfy the criminal standard of proof, not each individual item which is merely a link in the chain of proof" (citations omitted).

[34] When considering the whole of the evidence including the uncertainty as to how the fire started (including the possibility of an electrical fault), the inability to identify the person who approached the residence prior to the fire, and the unreliability of Simon Pelletier’s evidence, I am left with a doubt.

[35] I cannot conclude that the fire was set intentionally. I cannot conclude that the fire was started by Jeannette Belanger. I cannot conclude that Jeanette Belanger was with or communicated with Simon Pelletier on the day in question. As a result, Jeannette Belanger will be found not guilty on all counts before this court.

Released: September 19, 2024. Signed: Justice Angela L. McLeod