COURT FILE NO.: 17167-10

DATE: 20120308

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Cecile Fournel

Defendant

Marc Huneault, for the Crown

Seth Weinstein and Jill Makepeace, for the Defendant

HEARD: September 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, 26, 27, 28, and October 13 and 14, 2011

REASONS FOR JUDGMENT

Hennessy j.:

I. Overview

1At approximately 9 p.m. on February 25, 2009, Chantal Boudreau called the Timmins Fire Department and reported a fire in her bedroom. The fire was soon extinguished.

2The evening of the fire, Ms. Fournel, who was the mother-in-law of Ms. Boudreau,¹ had attended at Ms. Boudreau’s home to talk about the dispute concerning custody and access of the children of Chantal Boudreau. The two women drank wine and a cooler during the visit. The Crown alleges that Cecile Fournel added drugs to Ms. Boudreau’s drinks; that Ms. Boudreau became impaired by these drugs; and that Ms. Fournel set a fire in the bedroom after she put Ms. Boudreau to bed.

3Following the investigations by the Timmins Police, the Ontario Provincial Police (“OPP”) and the Ontario Fire Marshall’s Office, criminal charges were laid against Cecile Fournel. Ms. Fournel was charged with administering a noxious substance, arson and attempt murder.

4The defendant argued that it is probable and possible that Ms. Boudreau negligently or intentionally caused the fire by smoking in bed and that she then acted in concert with another person to frame Ms. Fournel.

II. The Evidence Called by the Crown

5The crown lead evidence on the following themes:

1. The custody and access dispute involving the grandchildren of Cecile Fournel and the relationship between Cecile Fournel and Chantal Boudreau over the years.

2. The visit of Cecile Fournel to Chantal Boudreau’s house on the evening of February 25^th and the events of the morning of February 26^th.

3. The evidence of the firefighters. The investigation of the fire and the expert opinion on the cause and origin of the fire.

4. The finding of diphenhydramine and benzodiazepines in a urine sample of Chantal Boudreau and the link between the diphenhydramine and a purchase of Nytol made by Cecile Fournel in the hour before the visit; and

5. The involvement of David Martin and the discovery of Nytol in Cecile Fournel’s crime car.²

1. The Custody and Access Dispute and the Relationship between Chantal Boudreau

and Cecile Fournel

6Ms. Boudreau was 27 years old at the time of the fire. She had been in a relationship with Evan Palaszewski for nine years. They had two children: H. , who was six years old; and A. , who was four years old at the time of trial. The couple lived together from May 2005 to November 2008. At the time of the fire they still owned the house on Kelly Ann Drive. Ms. Fournel had a very close relationship with her son Evan and her daughter in-law Chantal and the two grandchildren. She spent a lot of time with the grandchildren. She spoke to her son a few times daily. In November 2008, Chantal and Evan separated. They were involved in an acrimonious family law dispute at the time of the fire. Ms. Boudreau was seeking a court order for custody and an order permitting her to move away from Timmins to attend school in Sudbury. Ms. Boudreau had begun to restrict the time that Ms. Fournel could be with the grandchildren. Ms. Fournel was unhappy with her limited access to the grandchildren and the prospect that the children would move away.

7Ms. Fournel was a senior detective constable with the OPP in South Porcupine. She is married to Patrick Gibbons and lives on Spooner Drive in Timmins. After the November 2008 separation, Ms. Fournel helped Chantal Boudreau get a part-time job as an administrative assistant in the same OPP crime office. Ms. Boudreau started that job at the end of December 2008.

8Ms. Boudreau testified that after she started to date Evan Palaszewski, his family took her in as a member of the family. Chantal became particularly close to Cecile Fournel and thought of her as a confidant. Cecile Fournel provided life, career and relationship advice to Chantal including during times when Chantal and Evan were having problems. Chantal agreed that they shared a respectful mother-daughter relationship, and that there were times when Cecile Fournel knew more about Chantal’s life than her own mother did. Chantal always had a key to the house on Spooner Drive and was welcomed there, even after the November separation. Chantal also shared a close relationship with Evan’s sister.

9Prior to the November 2008 separation, Ms. Fournel had been very active and involved in the lives of her grandchildren. According to Chantal Boudreau, Ms. Fournel saw the grandchildren with or without her approximately three times per week, either sharing meals out or at Ms. Fournel’s home or activities. Ms. Fournel often picked the children up from daycare and kept them until bath time. Ms. Fournel also cared for the children from time to time to assist Ms. Boudreau when she had work or other errands. Around the time of the separation, Evan Palaszewski had been working in Fort McMurray on a schedule that often kept him away from Timmins for up to 21 days at a time.

10Cecile Fournel and her husband Pat Gibbons had financially assisted Chantal Boudreau with housing during the time she was in a relationship with Evan Palaszewski. For certain periods, the younger couple lived together and for other periods they did not. At the time of the fire, Chantal was living in the house at 341 Kelly Ann Drive. This home had been purchased with financial assistance from Cecile Fournel. Prior to moving into the Kelly Ann Drive residence, Chantal Boudreau had lived at 534 Spooner Drive, just doors away from Cecile Fournel, a home purchased for her by Pat Gibbons during a period when the young couple had been separated. Prior to that, Cecile Fournel and Pat Gibbons had assisted the young couple with renovations to a residence on Division Street, and prior to that the couple had resided with Cecile Fournel and Pat Gibbons.

11Ms. Boudreau testified that she was devastated by the break up with Evan. She was very angry with him, especially when she learned that he had a girlfriend in Alberta. Among other things she did to restrict Cecile Fournel’s time with the children, she removed Cecile Fournel’s name from the list of authorized persons who could pick the children up at daycare.

12The relationship between Chantal Boudreau and Cecile Fournel became strained at work. Cecile Fournel told her that she didn’t want the children moved from Timmins. Cecile Fournel offered to buy Chantal another house to live in with the children. Cecile Fournel began asking for access to the children in front of co-workers. Chantal Boudreau asked her supervisor if she could move offices. The supervisor, Mike Pilon, an old friend of Cecile Fournel’s, discussed the issue with Cecile Fournel who opposed the move. The supervisor ultimately refused the request to move Chantal Boudreau’s office.

13By February 2009, the couple was fully engaged in the adversarial court process. Chantal Boudreau testified that by this time, she had come to resent Cecile Fournel for her interference in her relationship with Evan. She said that Evan would call his mother whenever they were having a serious discussion, that Cecile Fournel would inject herself into every discussion and give advice and that no decision could be made without her input. In effect, Chantal Boudreau called the relationship with her partner a three-way relationship with the mother in between. For example, the young couple had talked of moving to Alberta and Ms. Fournel had objected to this and made calls to Chantal telling her that she didn’t want them to move.

14Once Chantal was involved in the family law proceedings, she was determined to demonstrate that she could be a good mother and that she would not do anything to undermine her position. She was also determined to stand up to Cecile Fournel on the question of access and not permit more access to her than would otherwise be allotted to Evan.

15By February 2009, Ms. Boudreau was experiencing stress and anxiety about the issues relating to the children, the break up, and the legal dispute. She was angry at Evan and believed he was ‘screwing her over’. On the day of the fire, they had argued about income tax deductions.

2. February 25^th – Ms. Fournel’s Visit to Chantal Boudreau

16On February 25^th, Evan and Chantal spoke on the phone at approximately 4:30 to organize taking the kids to the pool. The original plan was that the parents and the children would go to the pool together. As a result of a disagreement during the conversation, Chantal told Evan that he could take the kids on his own and she would not be going with him. Evan was to pick the children up around 6:10 or 6:15 p.m.

17Evan did come to pick up the children at that time and Chantal reminded him to have the children home by bed time. After Evan left, Chantal was standing in the carport having a cigarette and texting when Cecile Fournel arrived. Cecile Fournel was not driving her personal car but was driving her crime car, the OPP cruiser. She got out of the car and approached the house, carrying a backpack.

18Cecile Fournel’s arrival time is confirmed by neighbours who saw her arrive and leave her car on the street. According to Chantal, as Cecile Fournel approached, she said, “We need to talk this out. Let’s get drunk and talk this out.”

19Once the two women entered the house, Cecile Fournel asked Chantal what she wanted to drink and went to the kitchen to pour drinks. Cecile told Chantal to call Evan and tell him to keep the kids overnight, that she was not feeling well. Chantal Boudreau remained on the landing and made this call from her cell phone to Evan. Chantal testified that Evan’s response was unfriendly and referred to the legal dispute.

20In response to Cecile’s question about what to drink, Chantal replied that she would like red wine. Cecile Fournel usually brought over to the house homemade red wine. When Chantal arrived in the kitchen area after making the call, she saw that Cecile Fournel had removed from her backpack a four pack of Smirnoff coolers and a bottle of wine and put them on the counter. There were two glasses poured, one of red wine and one a Smirnoff cooler. Ms. Boudreau then testified that Ms. Fournel convinced her to drink the cooler although she claimed that she didn’t want it, and didn’t like it.

21According to Ms. Boudreau, she reached for the red wine but that Cecile Fournel said: “I made you a Smirnoff; I thought that’s what you wanted.” When Chantal Boudreau replied that she didn’t drink that, Ms. Fournel said, “Just drink it anyway, then you can have red wine.” Chantal Boudreau testified that she did take a drink of the Smirnoff and said that it aggravated her heartburn. Ms. Fournel replied, “Just block your nose and gulp it down.” Ms. Fournel then suggested that they go downstairs to the rec room and talk. Chantal Boudreau took her glass and the bottle of red wine. She believed that Ms. Fournel carried the Smirnoff cooler bottle, which was still half full and her glass of wine.

22The women made themselves comfortable in the recreation room and started talking. Their discussion covered three areas; work issues, inducements to Chantal to stay with the children in Timmins and reasons for and against the move.

23Ms. Fournel asked if Chantal would stay in Timmins she could get her a permanent job with the OPP, and then asked if she could pay Chantal’s bills. Chantal rebuffed both of these offers and explained that she wanted to go to Sudbury to go to university, that it was not very far away and that Cecile, who travelled for work, could travel to Sudbury. Ms. Fournel then suggested that perhaps Chantal and Evan could reconcile, to which Chantal Boudreau replied in the negative.

24Ms. Boudreau testified that Ms. Fournel told her again that it was not in the best interest of the children to have them move away from Timmins. Ms. Boudreau replied that she had applied for housing and was hoping to be accepted for the fall semester at Laurentian University and that she didn’t want to raise her son to be like Evan, that he had been too coddled.

25At the same time as these discussions were going on, there were also comments made about the drinks. Chantal Boudreau had taken a second drink of the Smirnoff cooler and told Cecile that it wasn’t sitting right and she was going to throw it out or that Cecile Fournel could drink it. Cecile replied that she could make a spritzer of the drink by adding red wine to the cooler. She did this and Chantal took a drink and said it was fine. She finished the ‘spritzer’. Ms. Fournel finished her glass of red wine and made herself a spritzer and drank that.

26Sometime during the discussion, Chantal Boudreau got up to go outside to have a cigarette. She testified that Ms. Fournel said to her, “Why don’t you just get some candles to kill the smoke?” Ms. Boudreau went upstairs, got a plastic water bottle, in which she put water up to the quarter full point, picked up some candles and brought them downstairs. She set the yellow and pink candles and a rectangular one on a coffee table in front of the couch. She put the water bottle on the corner of the table closest to where she was sitting. The water bottle then acted as an ash tray. Chantal Boudreau lit the candles with her lighter. She smoked three to four cigarettes and put the ashes and butts into the water bottle during their discussion. The two women talked for approximately an hour.

i) The Bedroom

27As they talked Chantal Boudreau testified that Cecile Fournel seemed agitated and was moving and fidgeting in an unusual way. She testified that Ms. Fournel was usually more composed. At some point, Chantal realized she had not yet eaten so got up to go upstairs. By the time she reached the stairs, she felt her knees buckle, she felt disoriented and dizzy. She went back to the couch to sit down. She removed her glasses and said it was time to go to bed. She got up and began to blow out the candles but Ms. Fournel told her not to worry about that and she would take care of them. While she was standing close to the table, her knees buckled again. Ms. Fournel was there to help her, walked her to the bedroom and helped her onto the bed. Chantal remembers that Ms. Fournel, as she helped her, helped her bring one leg at a time onto the bed as Ms. Boudreau lay on her left side with her back to the door of the room. She recalled that Ms. Fournel tucked her into the bedding.

28Ms. Boudreau described the bed and the bedroom. This was the bedroom she and Evan had shared. There were sheets on the bed, a bottom sheet, a top sheet, a comforter and pillows on the bed. She stated that when she left to go to bed, the plastic water bottle with butts and the wine bottle and the wine glasses were all on the coffee table in the rec room.

29The doors into the bedroom were double French doors with glass panes. In the bedroom, there was a clothes closet along the wall which was common with the rec room. This closet had a high shelf, above the hanging clothes. There were no doors, nor was there a finished ceiling in the closet. The rest of the room had a dropped ceiling. In the closet, there were a number of things stored on the floor as well as clothes hanging on a rod. On the floor, Chantal Boudreau had stored items for the wedding including box of glass vases wrapped in bubble wrap or paper and packages of different coloured tea lights. There was also a chandelier stored in a box. On the clothing rod, there were cocktail dresses, winter coats, trousers and a costume. On the shelf there were plastic containers of candy, some papers, a binder, books and an extra set of sheets. There was nothing stored under the bed.

30Ms. Boudreau testified that after she was tucked in, she recalled that Ms. Fournel returned to the room with things in her hand, including the pink candle and, she believed, another candle. Ms. Boudreau recalled that Ms. Fournel put the candles on the night table on the closet side of the bed. Also on the night table, there was a CD clock radio, a lamp and possibly two votive candles or tea lights. Chantal Boudreau admitted that without her glasses, her vision is not very good, especially distances but that she could differentiate colours. She also admitted that she was ‘blind’ without her glasses.

31The next thing that Chantal Boudreau recalls was that she awoke when she turned onto her right side, felt heat and heard a crackling sound. She saw flames on the right side of the closet. Chantal Boudreau testified that she jumped out of bed, over something on the floor and ran to the laundry room and the toy room looking for a bucket. She then ran upstairs and while on the landing she could see flames coming through the vent by the bay window. She spotted the bucket filled with toys, dumped the toys and ran downstairs to the laundry room to fill the bucket with water. She threw the water towards the closet fire but it had no impact. At some point, Chantal Boudreau recalls moving her side table in an effort to contain the fire or to protect the furniture.

32Chantal Boudreau testified that she saw the fire on the right side of the open closet and that the flames went from waist height to past the height of the dropped ceiling.

33Chantal Boudreau went outside to the carport and called 911 from her cell phone. By that time, there were two neighbours outside as well. One of the neighbours brought her a coat and some shoes. Then she called Evan and told him of the fire.

34A neighbour appeared when Chantal Boudreau was on the phone. Mr. Saudino described Chantal Boudreau as crying, panicked and shaken up, her knees buckling. Chantal Boudreau told her neighbour that her closet was on fire; that her mother-in-law had been over; that they don’t usually smoke in the house so they had lit candles. Chantal Boudreau also told him that her mother-in-law had put her to bed and said she would take care of everything. Mr. Saudino was there when Cecile Fournel first arrived. Chantal Boudreau asked Cecile Fournel if all the candles had been blown out and Cecile Fournel replied that she had.

35Chantal Boudreau reviewed photographs of the room taken by the fire investigators. One photo showed a blue laundry hamper beside the bed, with a wine bottle in it. Chantal Boudreau testified that she had been folding laundry that day and the last she recalled the hamper was on her bed. When she last saw the hamper, it did not have a wine bottle in it and she had no idea how the wine bottle had ended up in the hamper.

36Chantal Boudreau was also shown a photo of the coffee table which had decorative candles on it. She testified that those candles were normally kept upstairs on the dining room table and that she had last seen them upstairs and had no idea how they ended up downstairs.

37Chantal Boudreau’s evidence was that Cecile Fournel arrived almost immediately after the call and forcefully told her to get into her car. Chantal Boudreau did get into the passenger side of the car. She recalls being emotional and distraught. One of the neighbours approached and spoke to her briefly, offering help. Chantal Boudreau next recalled being lead across the street to Evan’s truck and from there, being brought to Cecile Fournel’s home where her children were. When she arrived at the home, Evan’s father and his wife were also there, as was Evan’s sister. Chantal Boudreau lay down on the couch.

38Chantal Boudreau did not suffer any injury in the fire. She had no burns. Her clothes were not burned. She did not receive any medical attention that night.

39Chantal Boudreau testified that she returned to the house on Kelly Ann Drive later in the evening, specifically to speak to the firefighters. She had heard someone say that the fire was a ‘mattress fire’ and she wanted to correct that assumption. Chantal testified that she asked to be taken back to her house and eventually Cecile Fournel drove her there. She spoke to a firefighter from the passenger seat in the car. The firefighter suggested that she had been smoking in bed. Chantal Boudreau denied this and spoke more generally about the fire.

40Later, after Chantal Boudreau was back at the Spooner Street residence of Cecile Fournel, her own mother, Lise Boudreau arrived. Her mother washed the soot from her face, as Chantal Boudreau kept her eyes closed, still sleepy. Evan picked her up from the couch where she was in and out of sleep and moved her to a bedroom, where she slept the night.

ii) The Evidence of the Firefighters

41The fire truck arrived on the scene in one truck at 9:09 p.m., approximately eight minutes after the call was received at the fire station. There were four firefighters on the truck. On arrival, they noticed Cecile Fournel and Chantal Boudreau standing outside Cecile Fournel’s car. Captain Giroux described both women as distraught. He spoke to them briefly and noticed that Ms. Boudreau was crying, shaking and frantic. He asked Cecile Fournel to take her away from the scene.

42Cecile Fournel returned to speak to Captain Giroux. She told Captain Giroux that she had received a call from Evan telling her the house was on fire. She told Captain Giroux that she had been there earlier with Chantal Boudreau, that Chantal had had a drink but was not intoxicated. She told Captain Giroux that they had one cooler and two glasses of wine. Captain Giroux also testified that Cecile Fournel told him that they had lit cigarettes, smoked and lit candles. He was not clear if Cecile Fournel had distinguished who had done what.

43Captain Giroux did not immediately enter the house. He directed two firefighters to do so and he kept in contact with them through walkie talkies. He noticed that Cecile Fournel stayed very close to him and appeared to be trying to read what he was writing in his notebook. Her closeness to Captain Giroux was the topic of comments by the driver of the truck. Captain Giroux had to ask Cecile Fournel to move away from him. During the course of the evening, Cecile Fournel asked Captain Giroux more than five or six times if she could go into the house and a few times she asked if he thought the cause of the fire was candles or cigarettes. She said that she wanted to go into the house to retrieve Chantal Boudreau’s purse and glasses. Captain Giroux told Cecile Fournel that he would not permit her to enter the house until he had determined that it was safe to do so. He indicated that Cecile Fournel continued to make the request notwithstanding his response.

44During this period, Captain Giroux also had a discussion with Cecile Fournel about the events of the evening. Finally near the end of the evening, he accompanied Cecile Fournel into the home, showing her, as he said, a professional courtesy. Captain Giroux told her not to touch anything and had to remind her again after she picked something up in the kitchen. When in the bedroom, Captain Giroux noticed a water bottle with cigarette butts inside on the night table beside the bed.

45Captain Giroux asked Cecile Fournel to bring Chantal Boudreau back to the house. Captain Giroux stated that Cecile Fournel responded firmly that Chantal Boudreau was sleeping at the moment and asked if she could bring her to the station the following day. Captain Giroux replied that he would like to see Chantal Boudreau that night. Captain Giroux wanted to get more information to determine the possible cause of the fire.

46When Chantal Boudreau returned she was shaking and crying. Captain Giroux asked Chantal Boudreau if, after Cecile Fournel had left the house, whether she had lit another cigarette, had another drink or lit another candle. She said she couldn’t remember anything and Cecile Fournel, who was in the car with her, stated that Chantal Boudreau was in shock.

47On arrival at the scene, two firefighters entered the home and immediately encountered heavy smoke and zero visibility. They went directly to the basement, opened the door to the bedroom and one of the doors came off its hinges. They saw the corner of the mattress on fire and extinguished it quickly with a quick burst from the fire hose. Around this time, one of the fire fighters communicated by walkie talkie to the captain and said that it appeared to be a mattress fire. Then the fire fighters noticed embers in the bottom of the closet about a foot and a half above the floor. They extinguished this quickly as well and then stirred the embers. Under the embers the fire fighters found some tea lights, bubble wrap, some clothes and miscellaneous items, approximately 18 inches of items covering the floor. They doused these items. The firefighters also removed the foam mattress pad from the bed and brought it outside to make sure it would not re-ignite. The top of the mattress did not appear burnt.

48The firefighters returned to the basement area and began to remove the drywall and ceiling. The ceiling was heavily charred: it had been burnt through but did not require water at that point. They also removed the drywall behind the headboard of the bed. The firefighters noticed the night table positioned between the bed and the closet and also noticed the laundry basket on the floor between the bed and the closet. In the recreation room the firefighter noticed that water was coming from a ruptured hose in the rafters.

49The firefighter described charring of the rafters in the top of the closet where there was no ceiling. Neither the firefighter nor Captain Giroux recalled seeing any bedding, i.e. sheets, pillows, comforter.

50In his report that night Captain Giroux noted his opinion that the fire had started in the bedroom closet. He noted the extensive damage to the closet, a large amount of combustible material. The firefighter believed that the cigarette butts found in the melted plastic bottle may have been the cause of the fire.

51Shortly after midnight, Captain Giroux turned the scene over to Evan Palaszewski who was at the scene with his mother Cecile Fournel.

iii) The Next Morning February 26^th

52The morning after the fire, Chantal Boudreau came into the kitchen at Cecile Fournel’s house. Cecile Fournel was in the kitchen feeding one of the grandchildren. Chantal Boudreau testified that Cecile Fournel twice said something to the effect that there was no need to worry as she would now get all new things, her new boyfriend could take care of her. Chantal Boudreau testified that Evan seemed angry and aggressive. First thing in the morning, Evan asked: “What the fuck did you do?” Later he said to her mother on the phone: “She’s too incoherent to communicate but she’s ok to text. She got a new boyfriend now.” According to Chantal Boudreau, Evan also said to her that morning that he was going to report her to the Children’s Aid Society and that if she didn’t give him shared custody, he would call family services.

53Chantal Boudreau’s mother came to pick her up and they left together. Chantal Boudreau spoke to the lawyer who was representing her in the family law proceedings. After this conversation, she requested and obtained a requisition from her family physician for a toxicology test and attended the lab to provide a urine sample.

54By this time, Chantal Boudreau was wondering what had happened. She knew that her reaction the night before was not her usual reaction to alcohol. She testified that she would not normally feel disoriented after a glass or two of wine. She felt that something was not right, that Cecile Fournel had done something to her. She also was coming to the conclusion that she might be blamed for the fire and that Evan would use this against her in the family law proceedings.

55During the morning, Chantal Boudreau spoke to the Deputy Fire Chief and attended the house with him and another firefighter. She gave them a detailed description of the events of the night before and showed them where she and Cecile Fournel had been during the evening.

56Chantal Boudreau testified that, from the evening before to the time of the visit to the lab, she had not taken any prescription or non prescription drugs, or any narcotics, or anything to help her sleep.

57Chantal Boudreau testified that she took sleep aids in 2003 and 2004 when she was in college and had noisy downstairs neighbours. She kept old packages of these over the counter medications on the top shelf of a closet, upstairs in her home. They were stored in a basket with other medication. Chantal Boudreau said she had last taken sleep aids in 2004 and had not taken any of them around February 25, 2009. Chantal Boudreau also identified a bottle of Tylenol #3’s found in the kitchen of her home. She indicated that these had been prescribed for her around 2005 when she had had a surgical procedure.

3. Investigation of the Fire

58The Crown called Douglas Horn who was qualified to provide opinion evidence as an expert in the determination of origin, cause and circumstances of the fire. Mr. Horn has been with the OFM since 2004, and has been responsible for the investigation of fire scenes since that time. Prior to joining the Ontario Fire Marshall, Mr. Horn worked for 25 years as a police officer, and during the last five years his primary duties were arson investigations. He has taken continuing professional development courses since 2003. Mr. Horn is a frequent lecturer at the Ontario Fire College and a member of the Canadian Association of Fire Investigators since 2001. He has had his knowledge based certification since 2002, and again in 2008.

59Mr. Horn spent four days investigating at the scene. He engaged Mr. Choudry to do an independent investigation of two electrical circuits and the furnace. He sent a number of samples to the Centre of Forensic Sciences. He also reviewed the statements of the firefighters and Ms. Boudreau.

60Mr. Horn gave the opinion that the area of origin of the fire was the closet in the bedroom above the floor level and that it was caused by intentional application of open flame to combustibles.

61Mr. Horn was also clear that the path of the fire was not consistent with a fire caused by the electrical system. The defence suggested that the path of the fire was not a reliable indicator of the cause because, among other things, the fire may have been suppressed by the ruptured water hose. Firefighter Boissonneault agreed with the proposition that the water from the ruptured hose contributed to putting out the fire. However, he did not explain the reason for his belief, nor was he qualified as an expert to give opinions on fire spread. In fact, firefighter Boissonneault was adamant that he had no training in how fires spread. Mr. Horn agreed that the water from the ruptured hose may have had some effect on the extent of the fire moving away from the bedroom. However, he disagreed with the proposition that the ruptured water hose could have suppressed the fire in the closet. Mr. Boissonneault’s evidence does not diminish the logic or the strength with respect to Mr. Horn’s opinion on the path of the fire.

i) Area of Origin of Fire

62Mr. Horn’s opinion on the area of origin of the fire was based on his observations of the scene. The observations that he factored into his opinion included:

• Fire damage in closet, and to the joists in the ceiling area;

• Absence of fire damage to the floor area under the bed and to the underside of the spring;

• Fire damage to night table;

• The fire damage to the closet side of the mattress edge;

• Irregular burn pattern on the floor between the bed and the closet;

• Condition of the foam mattress pad.

63Mr. Horn reached his conclusion in part by excluding a number of hypotheses. Specifically he concluded that the fire did not start under the bed. The tea lights and cigarette butts found under and around the bed were not at the origin of the fire.

64Mr. Horn opined that the burn pattern on the bedside table was consistent with it being positioned so that the drawer side of the table was exposed to the fire in the closet. This was the position in which the firefighters found the table.

65Mr. Horn carefully examined the irregular burn pattern on the floor. He formed the opinion that it was caused by melting foam from the foam mattress pad. The mattress pad showed a loss of foam on the side closest to the closet. Mr. Horn explained that in the fire that type of foam will liquefy due to the high heat. The liquefied foam will ignite. Once liquefied it will fall to the floor. It may be burning as it’s falling to the floor or it may be ignited as a liquid on the floor, but one or the other occurred and the burning liquid on the floor caused the irregular burn pattern.

66The defence vigorously challenged Mr. Horn on his opinion and suggested to him that the candles or the smoking materials could have started the fire on the bed. Central to this alternate theory was the irregular burn pattern on the floor and how it might explain how the fire progressed from the bed to the floor and to the closet.

67Mr. Horn outlined his opinion on the progress of the fire from its initial fuel package, a piece of clothing in the closet. He stated that the fire would have then spread to other clothing adjacent to it, both horizontally and upwards. In his opinion the fire attacked the underside of the shelf which collapsed because of fire damage and the weight of things that were stored on it. The fire spread to the joists and the underside of the sheeting in the top of the closet, which was exposed to the fire because there was no ceiling in the closet. Mr. Horn commented on the significant charring to the joists and concluded that the fire penetrated the sheeting between the top and bottom cord of the joist, and there may have been actual fire burning up in the ceiling. He stated that the fire would have been moving in two directions. It penetrated joists to the south and to a lesser extent penetrated joists to the north. The fire caused less damage as it moved in each direction.

68The fire burning the material that had fallen to the floor resulted in flames in the closet. In Mr. Horn’s opinion, the flames in the closet would have come out of the closet through the only opening, the door space. These flames, either through radiant heat and/or directly, then came in contact with the edge of the foam mattress or the edge of the bed, igniting one or both of them. Once the foam pad was ignited, it began to melt. The firefighters saw a fire in the mattress and they saw the foam pad burning.

69Mr. Horn testified that the closet sustained extensive damage. He described the damage to the interior of the closet and the joists in the ceiling area that ran parallel to the closet, into the bedroom on one side and into the recreation room on the other side. The joists above the closet area were blistered and charred. The damage to the joists decreased on both sides of the closet as one moved away from the closet. The underside of the top closet shelf had significant charring. There was no fire damage to the hardwood floor of the closet, or to the painted baseboard trim, save for a small amount of damage at the east end of the wall. This indicated to him that the area of origin was above the floor of the closet.

70Mr. Horn described the fire damage to the edge of the mattress and box spring along the side facing the closet. Mr. Horn recalled reading the statement by Chantal Boudreau that she saw flames at waist height in the closet and said that this was consistent with his observations and theory on the area of origin of the fire.

71When the firefighters arrived in the bedroom they did not see any sign of any bedding on the bed; no sheets, comforter or pillows. Mr. Horn noted what he believed was a piece of fitted sheet on one corner of the bed. Chantal Boudreau testified that there had been bedding there when she got into the bed. Mr. Horn said that there were two possible explanations for the missing bedding; either it was removed or it was consumed by the fire. There was no evidence that anyone removed the bedding. However, Mr. Horn conceded that he could not account for where the bed sheets went. The defence submits that if the bedding was consumed by the fire it raised the possibility that the fire started on the bed and worked its way to the closet. This possibility was rejected by Mr. Horn. He said there was no evidence in support of this possibility. Ms. Boudreau’s evidence is that she saw flames in the cupboard and was able to leave her bed without any burn injury or burn marks on her clothes. Mr. Horn did not think it was likely that the sheets were totally consumed by the fire. He testified that it is very rare in a fire this small that all of this material would be completely destroyed beyond recognition. He would have expected remnants to have survived. The absence of bed sheets meant that the bed sheets could not help Mr. Horn determine area of origin. The defence suggested that polyester sheets leave a residue if they burned. Mr. Horn indicated that he had never seen such a thing. In his experience, he had only ever seen ash as a residue from burning polyester sheets.

ii) Cause of Fire

72Mr. Horn testified that it was his opinion that the fire was caused by the intentional application of open flame to combustibles. To come to this opinion he formed and rejected a number of hypotheses.

73Mr. Horn testified that if and when he can determine an area of origin of a fire, he then conducts an analysis for cause. The cause is dependent on whether he can identify a competent ignition source within the origin. Sometimes that is not possible because the fire destroys the ignition sources. In this case, he was able to identify the competent ignition source.

74For an ignition source to be competent, it must be able to generate sufficient heat for a sufficient length of time to ignite the fuel, to raise that fuel to its ignition temperature. Mr. Horn identified five possible ignition sources: tea lights, smoking materials, furnace, electrical system and intentional application of an open flame.

75Once Mr. Horn had identified the competent ignition sources, he went through the process of determining whether any of them did cause the fire.

(1) Electrical

76Because of information that Mr. Horn had received from Ms. Boudreau via the police that she had seen fire coming out of the furnace ducts on the upper level. Mr. Horn considered the malfunction of the furnace. He also considered the possibility that the fire started as a result of electrical malfunction in the circuit in the west wall of the closet. He asked Mr. Choudry to look at the furnace and two circuits, one directly in the area of origin of the fire and one immediately adjacent to the area of origin. Mr. Choudry advised Mr. Horn that neither the electrical circuits nor the furnace were the cause of the fire.

77Mr. Quadeer Choudry is a professional engineer and Fire Protection Engineer at the Ontario Fire Marshall’s Office where he has worked since 1991 providing technical assistance on the investigation of fires and the role of electrical systems and furnaces in residential fires. Over the years he has been qualified to give opinion evidence 18 times, either in criminal cases or coroners’ inquests. Eight of those involved opinions on electrical systems.

78Mr. Choudry attended the fire scene on March 13, 2009. Mr. Horn asked Mr. Choudry to examine two branch circuits and the furnace and asked him for an opinion on their potential role in or contribution to the cause of the fire. Mr. Choudry examined the scene over five to six hours, took photos and wrote a report in which he concluded that the furnace and wires in the two circuits he examined played no role in the cause of the fire.

79Circuit A ran along a stud and up into the ceiling space over the joist. It supplied power to a fluorescent light in the ceiling of the bedroom. Circuit B ran along the ceiling of the recreation room in the basement and extended into the main floor kitchen above. Both circuits were made of copper wiring.

80Mr. Choudry explained that an electrical arc is an extremely high temperature electrical discharge that could potentially ignite combustibles in the area. Beading is the melting of copper wire, when an electrical arc has taken place. If an arc is generated in the vicinity of combustible material it could ignite the combustible material and start a fire.

81Mr. Choudry’s evidence was based on his observations and findings that there was no evidence of beading at the fractured ends of the wires in each of the circuits, and that all of the wiring was recovered. In the absence of evidence of beading, Mr. Choudry concluded that there had been no arcing of the wires.

82Mr. Choudry also examined the gas furnace. He arranged to have the gas meter removed and tested to determine its integrity of gas to control valve of furnace. He concluded that the system was functioning properly and that combustible gases were not the cause of the fire.

83Mr. Choudry acknowledged that some overhaul efforts of firefighters could have caused the fracture of circuits and wiring. He further acknowledged that some overhaul efforts could take off the end of a fractured wire and if there was beading on the end of the fractured wire, it was possible that the beading could be knocked off. However, he testified that he could marry up the ends of the fractured wires and he was of the opinion that all the wire had been recovered and that there was no beading.

84Mr. Choudry was shown a photo taken by a firefighter of circuit B that appeared to show three wires touching (Exhibit 92). He was asked in cross examination if the photo depicted fused wires. After examining this photo, he was of the firm view that it did not depict fused wires. He was resolute under cross examination that based on his physical examination of the wires, that the wires were not fused at that location nor had there been any arcing at the location. He testified that if the wires were fused, he would expect to see melted wire. If the cause of the fusing was arcing, he would expect to see beading. If the fusing was caused by the spread of fire, he would not expect to see beading but would expect to see a long portion of distended or melted wire.

85Mr. Choudry was also shown this same photo at the preliminary inquiry. Mr. Choudry was asked then to look at the photo and indicate whether they appeared to be fused together. At the preliminary inquiry Mr. Choudry indicated that in the photograph they did appear to be fused. At trial, Mr. Choudry explained that he saw the photo for mere seconds at the preliminary inquiry for the first time. Now that he has had a chance to examine it more carefully and in the context of his own photos and recorded observations, he testified that the photo does not show fused or melted wires at circuit B.

86When Exhibit 92 was introduced by the Crown, firefighter Lavoie who had taken the photograph was not asked whether he had observed the wires fused together nor was he asked anything about the wires in cross-examination. Mr. Lavoie did not testify that he saw the two wires fused together, that were the subject of his photograph, or even they appeared to be fused together. Mr. Choudry who examined the circuits did not see fused wires. The best evidence we have is that at the first time that Mr. Choudry saw the photograph at the preliminary inquiry, on a brief examination, he said they appeared to be fused.

87I do not accept the submission from the defence that the wires appear to be touching. There is no direct evidence to support that proposition.

88As a result of his physical observations, Mr. Choudry confirmed his reported opinion that the electrical circuits examined played no role in the cause of the fire.

89Mr. Choudry did not preserve the circuits for later examination by other experts. However, it was not clear how this might have been done. I accept Mr. Choudry’s opinion. His evidence was based upon a thorough, hands-on examination at the scene. He was not hurried or pressured. He was not given any suggestions or theories by the lead investigator. He came to his own conclusions. Mr. Choudry gave his evidence in an impartial manner and accepted propositions put to him in cross examination. His opinion was not damaged by the cross examination.

(2) Smoking Materials

90Mr. Horn eliminated the smoking materials as the cause of the fire; including the cigarette butts found under the bed or the ones found in the plastic bottle on the night table. Mr. Horn’s opinion was that smoking materials did not cause the fire as they were not found in the closet, the area of the origin of the fire. He further pointed out that the plastic bottle did not have any damage to its underside and that the damage to the top of the table was not consistent with it being the origin of the fire.

91The defence submitted that once Mr. Horn learned that Chantal Boudreau said that she did not smoke in the house, he closed his mind to the possibility that the fire was caused by smoking or smoking materials. Mr. Horn agreed that in eliminating careless smoking as the cause of the fire, one of the factors he relied on was the information he had been given that Chantal Boudreau had told police that she did not smoke in the house. Mr. Horn admitted that his report erred in indicating an absence of smoking materials found in the bedroom other than the butts under the bed. Mr. Horn had found a lighter on the floor and he testified that he should have included reference to the plastic bottle in his report. Mr. Horn testified that the presence of the lighter did not affect his opinion.

92The defence challenged to Mr. Horn’s exclusion of careless smoking as cause of the fire was based solely on Mr. Horn’s agreement that it is possible that cigarette butts could have moved during fire suppression efforts. There was no evidence that the butts were water soaked and thus obviously moved by the force of the water. There was no evidence that they might move inches or feet or from on top of the bed to under the bed. None were found in the area that Mr. Horn considered the area of origin. For his theory on cause, Mr. Horn relied to a great extent on the fact that there was no fire damage to the floor under the bed or to the underside of the mattress which was the area where the cigarette butts were found.

(3) Candles and Tea Lights

93It was the opinion of Mr. Horn that the tea light candles found under the bed, lying on the floor in front of the closet or on the far side of the bed, were not the source of the fire because the origin of the fire was not under the bed. Mr. Horn eliminated the tea lights as the cause of the fire after he had already considered them in his analysis on the area of origin of the fire. There was no fire damage to the floor area or the table top where candles were found. Thus he eliminated those areas as the area of origin. Once those ignition sources were not in the area of origin, he eliminated candles as causes of the fire.

94The defence challenged Mr. Horn and urged him to acknowledge that the candles found may have been moved during fire suppression efforts, in which case, Mr. Horn could not be sure where they were at the time of the fire. Mr. Horn confirmed that his investigation and report were based on the scene as he found it. I do not find that there is any reason to doubt the opinion that the candles can be excluded as the source of ignition.

(4) Fire Damage on the South Side of the Bed

95Mr. Horn described fire damage to the edge of the south side of the bed which is opposite to the side of the bed facing the closet. Pursuant to his theory that the fire start in the closet, this could be considered a separate area of origin. Generally where there are two areas of origin to a fire, protocol demands that the investigator consider an incendiary fire, i.e. intentionally set. Therefore, Mr. Horn took samples from the bed and sent them for analysis to determine whether an accelerant could be detected. No accelerants were detected and therefore Mr. Horn worked from the presumption that no accelerants were used. However, Mr. Horn could not formulate any fire spread theory that was consistent with this separate area of origin, other than the use of accelerants.

(iii) Hypotheticals

96Defence counsel put two hypotheticals to Mr. Horn. The first was that the fire started on the bed as a result of closely placed candles or smoking in bed. Mr. Horn was asked to assume that the bedding caught on fire and that Chantal Boudreau panicked and threw the bedding into the closet and that the bedding ignited the combustibles hanging in the closet. Mr. Horn responded that in that case he would have expected to find remnants of the bedding, and thermal injuries to the hands, arms, chin, face, chest of the person throwing the bedding. Mr. Horn also found that this would have been a rather stupid reaction to a fire on the bed. Mr. Horn agreed that under this set of facts, the fire damage in the closet would be similar to the damage left by the actual fire.

97In the second hypothetical, where a person throws bedding onto the floor and it lands on other combustible clothing, Mr. Horn was of the view that this fire would leave an irregular burn mark to the surface of the floor from the different fabrics which would have irregular contact with the floor and produce a very different pattern than what was found in this bedroom. Mr. Horn also found that the absence of remnants and the absence of thermal injuries to Ms. Boudreau were inconsistent with this hypothetical. Mr. Horn did agree that the fire damage to the joists is not inconsistent with this hypothetical. Mr. Horn did not agree that the hypotheticals were supported by the evidence. He repeated his opinion that the burn pattern on the floor was not caused by sheets.

98Mr. Horn admitted that he did not discuss the issue of smoking with Ms. Boudreau or the issue of bedding. He also admitted that if the flame from a candle or cigarette lit the bed sheets on fire and there was a trail of clothing from the bed to the closet, the same damage as was found in the top of the closet would have occurred.

99Having excluded these four possible sources as competent sources of ignition, Mr. Horn considered the hypothesis of the intentional application of an open flame to combustibles. Mr. Horn testified that the closet space allowed for the possibility for somebody to intentionally introduce an open flame, in contrast to a closed cavity wall space where a person could not have access. Second he knew that there were people in the house immediately before and at the time of the fire. It was Mr. Horn’s opinion that not only was this the only hypothesis left, but it was a valid one.

100Mr. Horn relied on the information from the statement of Chantal Boudreau that there was combustible material in the closet, including different kinds of clothing hanging from the rod. Mr. Horn did research and determined that all of the common fabrics could be ignited by open flame.

101As a result, Mr. Horn was of the opinion that the fire was caused by the intentional application of open flame to a particular piece of clothing in the closet.

102At the same time as the fire developed in the top of the closet and the ceiling, it is also developing in the bottom of the closet. Mr. Horn testified that as the fire caused sufficient damage to the hanging clothing, that material fell and brought fire down to the items on the floor of the closet. Eventually the clothing rod fell and it was found in the debris on the bottom of the closet.

103Mr. Horn considered the reports from the firefighters that a plastic hose in the ceiling space on the recreation room side had ruptured and had water pouring out of it. He was of the opinion that ‘gushing’ water may have disrupted the spread of the fire, but would have had only a minimal effect on the fire in the closet.

(iv) Burn Pattern on Floor

104Mr. Horn had the floor area of the irregular burn pattern tested for an accelerant and the results came back negative, i.e. there was no evidence of accelerants in the samples. Defence counsel suggested to him that the irregular burn pattern on the floor could have been caused by the burning polyester sheets which had been removed from the bed and thrown onto the floor. Mr. Horn described the various patterns that would be left by different configurations of a sheet on the floor. In his opinion the burn pattern that was not consistent with crumpled sheets unless they were folded flat in the exact configuration of the burn pattern. He rejected the suggestion that polyester sheets leave a liquid residue like a foam mattress. Mr. Horn accepted his evidence at the preliminary inquiry that although it was possible that the irregular burn mark had been made by sheets, he would have expected to find remnants of the sheets if that had been the case. Mr. Horn also said that the burn pattern was not feathered which he would have expected if it came from a crumpled sheet and the only way the pattern could have come from sheets was if they were folded flat and cut to match exactly the burn pattern.

105After a lengthy cross examination on the issue, Mr. Horn maintained his opinion; disagreeing with the proposition that the irregular burn mark could have been the result of bed sheets. Mr. Horn said that in his view it was extremely unlikely that the bed sheets could cause the irregular burn mark on the floor but he could not absolutely exclude the possibility. Whatever caused the burn pattern, Mr. Horn testified that he would have expected to find some remainder of it there. Mr. Horn said that it was unlikely and remote that anyone could throw a bed sheet and have it land in that pattern that was left on the floor.

106The defence cross examined Mr. Horn on his opinion with respect to the four other possible sources of ignition of the fire which he had excluded. Mr. Horn agreed that if there is an ignition source in the area of origin that cannot be excluded as the cause of the fire, then the cause of the fire must be ‘undetermined’.

107However, Mr. Horn was of the view that there was no evidence that the cigarette butts and remnants of cigarettes or the plastic water bottle were anywhere near the area of origin of the fire. There was no fire damage found around any of the cigarette butts and the plastic water bottle had an undamaged bottom. The water bottle was found on the top of the night table, which Mr. Horn had excluded as an area of origin. The underside of the bed was not fire damaged. He accepted that things may have been moved around during fire suppression efforts, but the only thing one can conclude from the finding of these butts is that there may have been smoking in the room that night or some other time.

4. Finding of Diphenhydramine and Benzodiazepines in Wine Sample of Chantal

Boudreau

108The lab results showed that Chantal Boudreau had diphenhydramine and two types of benzodiazepines in her system the morning after the fire. There was considerable evidence called about the drug diphenhydramine, and the role it played in this case. There was also evidence about two types of benzodiazepines. The evidence on these drugs covered the following areas:

• The effect of these drugs on a person

• The interpretation of the lab results of a urine sample provided by Chantal Boudreau the morning after the fire

• The descriptions of Chantal Boudreau’s state of consciousness or impairment immediately before the fire

• The presence of over the counter medication found in Chantal Boudreau’s home containing diphenhydramine

• The video showing Cecile Fournel purchasing a package of Nytol, containing diphenhydramine within an hour of her visit to Chantal Boudreau

• The foil sleeve of Nytol found in Cecile Fournel’s car the morning after the fire

• Cecile Fournel’s statements regarding drugs found in her car.

109Chantal Boudreau testified about the amount of alcohol she had consumed with Cecile Fournel. She recalled two glasses of wine and one drink of wine and Smirnoff cooler mixed. Based on her experience, this amount of alcohol should not have had a significant effect on her. After about an hour into the visit, Chantal Boudreau got up from the couch. By the time she got to the stairs she felt her knees buckle, she felt disoriented and dizzy and went back to the couch to sit down. From the couch, Chantal Boudreau told Cecile Fournel that she needed to go to bed. She got up to blow out the candles and Cecile Fournel said “don’t worry; I’ll take care of it”. Again Chantal Boudreau felt her knees buckle. Cecile Fournel came to help her. Chantal Boudreau put her arm around Cecile Fournel’s neck. Chantal Boudreau remembers her foot dragging as Cecile Fournel helped her to the bedroom. Cecile Fournel helped Chantal Boudreau onto the bed.

110Cecile Fournel recounted to firefighter Joey Stojkiewicz, how Chantal Boudreau got to her bedroom that night. She said that she walked Chantal Boudreau to her room and on Chantal Boudreau’s request brought the candles into the bedroom.

111Bev Mackey, an OPP officer from Orillia, gave evidence with respect to conversations about the night of the fire that she had had with Cecile Fournel. Bev Mackey and Cecil Fournel had worked together in the Cochrane detachment in 2002 and remained friends and stayed in close contact. On March 5 2009, Cecile Fournel drove to Orillia where she met up with Ms. Mackey and the two travelled together to Toronto for a course. They shared a hotel room in Toronto during the course and drove back to Orillia together on March 6. Cecile Fournel told Bev Mackey that she had gone to Chantal Boudreau’s house that night with two bottles of wine and couple of bottles of cooler and that they both drank. Cecile Fournel told Bev Mackey that there were candles burning when they were talking and that she had put them out afterward. She told Bev Mackey that she went there to discuss visitation and access issues. She said she spoke to Chantal Boudreau about the visitation arrangements and said she wanted Chantal Boudreau to ease up on this so that Evan and she and her husband Pat could see the children more. All of this evidence suggest that at the beginning of the visit, Chantal Boudreau was awake, functioning and not in any way impaired.

112Cecile Fournel told Bev Mackey that Chantal Boudreau had gone to bed after they had talked and had some wine and coolers and that she had gone to sleep. She said that Chantal Boudreau had not seen her leave. Bev Mackey asked Cecile Fournel if she had helped Chantal Boudreau to bed. Cecile Fournel answered no.

113In her statement to Sergeant Bickerton, Ms. Fournel said that Chantal Boudreau had two and a half to three glasses of wine and some cooler and that she got loaded.

114Ms. Mackey had, in her conversation with Ms. Fournel, asked a number of questions. Ms. Mackey said that Ms. Fournel was vague in some of her answers. Ms. Mackey asked how the fire started. Ms. Fournel said that there was a candle in the closet next to some clothing. Ms. Fournel asked Ms. Mackey if she knew that a candle can re-ignite after about an hour.

115Celine Faucher lived in the house immediately next door to Chantal Boudreau. She gave evidence describing Chantal Boudreau as she stood outside the house during the fire. Ms. Faucher looked outside and saw the smoke, the fire trucks and Chantal Boudreau. Through her window she observed Evan Palaszewski come to Chantal Boudreau’s side to support her. Ms. Faucher said that Chantal Boudreau looked very weak, that she was leaning heavily on Mr. Palaszewski and he was helping her walk.

116Ms. Faucher spoke to Cecile Fournel outside the house while the fire trucks were there. She testified that Ms. Fournel told her that she had gone to the house to smooth things over and they had had some wine together. Ms. Fournel said that she had left to go back to work but had received a phone call and come back to the house. Ms. Faucher spoke to Cecile Fournel a bit later and recalled that Ms. Fournel said that Chantal Boudreau had told her that she did not remember lighting cigarettes or candles that evening.

117Jean Paul Palmentier is a forensic toxicologist who was qualified to give opinion evidence on the analysis and interpretation of findings related to detection of alcohol and drugs in bodily fluids. He was able to perform an analysis on the urine sample that Ms. Boudreau had given to Life Labs on February 26, 2009. He confirmed that three drugs were found in that sample: diphenhydramine, temazepam and oxazepam. There was no alcohol detected in the sample.

118Diphenhydramine is an over-the-counter drug available in sleep aids including the product Nytol. It is also present in Gravol and Benadryl. Depending on the dose and the tolerance level, the effects of diphenhydramine include drowsiness, coordination problems including walking, and blurred vision. The more one takes, the greater the effect. Diphenhydramine can also impair memory and cognitive skills.

119Temazepam is a prescription sleep aid. It belongs to the benzodiazepine family. The effect of temazepam on the body is similar to the effect of diphenhydramine.

120Oxazepam is a prescription drug for anxiety. It has the same effect on the body as temazepam in that it can cause drowsiness, sedation; impair mental and motor function; and affect memory. In the metabolization process, the body may turn temazepam into oxazepam. The presence of oxazepam in urine could mean that it was either ingested or metabolized.

121If a person took diphenhydramine, temazepam and oxazepam in combination, they would have a cumulative effect on the central nervous system acting as a depressant, slowing the heart and breathing rate and affecting brain function.

122Mr. Palmentier gave evidence with respect to the length of time these three drugs could be found in the body after they were ingested. Diphenhydramine could be detected in the urine for up to 70 hours, (2.9 days), temazepam and oxazepam would be in urine three to four days after use. Therefore, the detection of the substances in a sample on any particular day means that the person could have ingested that substance three to four days prior to the test. If a person took temazepam the morning of the test, it would also show up in the urine sample. There is no way of knowing precisely when the drugs were taken simply by the fact that they were detected in the urine sample. The testing did not allow Mr. Palmentier to comment on how much diphenhydramine was present in the system the evening before the test.

123Mr. Palmentier also testified that if a person had three glasses of wine and a cooler, it would likely be eliminated from the body within 12 hours or sooner.

124There were no traces of diphenhydramine or benzodiazepines detected in the wine or cooler bottles or in the wine glasses found at Chantal Boudreau’s residence.

125Mr. Palmentier tested one of the Nytol gel caps which were brought by Dave Martin to his superior officer. In that gel cap, diphenhydramine was detected. It would usually take one to three hours for diphenhydramine to have an effect on the body, depending on the form in which it is used. He would expect a gel cap to have a quicker onset than a tablet. He would also expect that if the contents of the gel cap were extracted and ingested without the gel cover, they would have an effect within 10 – 20 – 30 minutes.

126Mr. Palmentier testified that diphenhydramine is also found in products called Equate Travel Tabs, Equate Sleep Aids and Life Brand sleep aid. The diphenhydramine found in Nytol is indistinguishable from the diphenhydramine found in the other three products.

127Christopher Bacvar is a pharmacist and the owner of a Shoppers Drug Mart in Timmins. He gave evidence that Cecile Fournel purchased a package of Nytol on February 25^th, 2009 at approximately 5:40 p.m. Mr. Bacvar had an electronically produced record from his cash machine showing that a package of Nytol was purchased. From that record he could also testify as to the lot number of that package. The record shows the time of purchase. Using that record, Mr. Bacvar was able to find the video recording of a purchase by Ms. Fournel at that same cash register. Although there was a ten minute discrepancy in the time of the two records, Mr. Bacvar satisfactorily explained the reason for the discrepancy and why he was confident that the video showing Ms. Fournel making the purchase, corresponded to the cash register record indicating that the purchase was a package of Nytol. I am satisfied that Ms. Fournel purchased a package of Nytol from the Shoppers Drug Mart at approximately 5:30 p.m. on February 25th. The lot number is electronically recorded with the purchase.

128Mr. Bacvar agreed that diphenhydramine was a common ingredient in over-the-counter medications. On the other hand, benzodiazepines are controlled substances and are not available over the counter.

5. The Involvement of David Martin and the Discovery of Nytol in Cecile Fournel’s

Crime Car

129David Martin is an OPP officer with more than 25 years experience. He worked with Cecile Fournel as a colleague in the crime unit in the South Porcupine office of the OPP. The afternoon after the fire Mr. Martin went to the crime car used by Cecile Fournel which was parked in the OPP lot and looked inside it. Among other things he found a foil sleeve or blister pack of pills which he put in his pocket. Those pills were found to be Nytol and had the same lot number as the Nytol pills purchased by Cecile Fournel the day prior. After the fire, Mr. Martin discussed this find with Chantal Boudreau and also discussed with her the plan to have a toxicology test done and the results of the test.

130The defence asserts that Mr. Martin’s evidence was unreliable and implausible. Mr. Martin was rigorously challenged in cross-examination on the following areas:

• His unusual behaviour checking into Cecile Fournel’s actions on the night of the fire

• His inability to provide an explanation for why he went to Cecile Fournel’s car and looked in it

• How and why he dealt with the found Nytol in the way that he did

• Inconsistencies and contradictions with respect to his interactions with Chantal Boudreau

• His relationship with Chantal Boudreau

• That as a result of a workplace complaint made by Cecile Fournel against Mr. Martin, that he had a motive to discredit Cecile Fournel

131David Martin knew Chantal Boudreau through her work in the crime unit office. He had also met her through Cecile Fournel. David Martin and Chantal Boudreau were friendly with one another in the office. He was aware that Chantal Boudreau was in a relationship with Cecile Fournel’s son; that she had two children; that she and Evan Palaszewski had broken up and were in a custody dispute; that Cecile Fournel had been very involved in the lives of her grandchildren; that after the break-up there was a noticeable tension between Chantal Boudreau and Cecile Fournel; and that Cecile Fournel had spoken to Chantal Boudreau in the office with respect to her requests to see the children or take them on outings.

132Mr. Martin denied having any out-of-office or social relationship with Chantal Boudreau. He testified that he called her the day after the fire but he could not recall how he had obtained her cell number.

133Mr. Martin recounted his history with Cecile Fournel. They had worked together daily for approximately four years and had known each other longer than that. Some time before the events of 2009, possibly in 2006 or 2007, another officer from the same office made a complaint to the senior officer about Mr. Martin’s conduct toward her and Cecile Fournel. The complaint as described by the supervising officer was that Mr. Martin’s conduct caused them concern and that he was ‘snooping around and prying into their personal business, eavesdropping.’ The Sergeant spoke to Mr. Martin and told him to smarten up or he would be kicked out of the crime unit. Although Mr. Martin denied knowing at the time that Cecile Fournel was involved with the complaint, he acknowledged that his relationship with Cecile Fournel changed around that time. However, Mr. Martin was of the opinion that his relationship with Cecile Fournel was back to normal by December 2008. He considered her a friend, and was therefore surprised that she didn’t mention the fire to him when she came to work on February 26^th.

134On the day of the fire, David Martin saw Cecile Fournel at the office in the morning and then again at approximately 4 p.m. when she was preparing to leave and did leave the office. David Martin left the office at approximately 5:30 to drive to Matheson. He returned at 9:20 p.m. and noticed Cecile Fournel’s personal car in the parking lot. He also noticed that the crime car usually used by Cecile Fournel (the gold Impala) was not there. When he left the detachment at approximately 10 p.m. he did not notice one way or the other if Cecile Fournel’s personal car was still there.

135On February 26^th, Mr. Martin arrived at the unit at 5:30 a.m. It was unusual for him to arrive this early after a late night working. Mr. Martin testified that the custodian spoke to him and said that he had just missed Cecile Fournel who had been there around 5 a.m. Mr. Martin thought that was curious and looked in the computer to see if Cecile Fournel had been called out. When Ms. Boulet arrived at the office at 7 a.m. he asked if she knew when Cecile Fournel was coming to work. As part of her response, Ms. Boulet informed Mr. Martin that there had been a fire at Chantal Boudreau’s house the night before and that Cecile Fournel had been there. Mr. Martin stated that he did not know about the fire until this point.

136During the morning, Mr. Martin spoke to Brenda Beaven, the Acting Administrative Sergeant. In the course of that conversation, according to Mr. Martin, he told the Acting Administrative Sergeant that Chantal Boudreau was not at work at the time because of the fire. He also told her that Chantal Boudreau was Cecile Fournel’s daughter-in-law. He asked if she knew that Cecile Fournel had been there that night. The Acting Administrative Sergeant told David Martin that she had learned from her firefighter husband that Cecile Fournel had been at the scene and that the crime vehicle had been there. Beaven testified that Martin conveyed that things were making no sense to him. She had the impression that he thought things were a little suspicious.

137Sometime around 8:30 – 9 a.m., Cecile Fournel came into the office. She and Mr. Martin had a series of conversations. Mr. Martin asked her why she had been there at 5 a.m. Ms. Fournel responded that ‘she couldn’t sleep, had been at the grocery store and had forgotten something.” She also said that the reason she had the car that night was because she was working on the Brisson file and that she had returned the crime car after 10 p.m. Because of Mr. Martin’s knowledge of the Brisson file, he thought this was an odd answer. In his opinion there was nothing on that file that required work at night. Ms. Fournel did not mention the fire to Mr. Martin. This concerned Mr. Martin.

138During the afternoon, Mr. Martin called the custodian at home to verify what he had told Mr. Martin earlier: That Cecile Fournel had come into work at approximately 5 a.m. Mr. Martin recalled that the custodian had said that Cecile Fournel had told him that she had forgotten something. In evidence the custodian testified that he did not recall giving Mr. Martin this information.

139Around 3:20 p.m., Mr. Martin went to the central office and took from there the key fob for the gold impala which was in the parking lot. He opened the car and leaned in. He noticed a smell of smoke and noticed that the mileage book was missing. He also noticed a red fabric sleeve for a coffee cup which he thought was his and so he took it. Mr. Martin looked around and noticed between the centre console and the driver’s seat a foil sheet of 8 pills, in two rows of four. The pills were visible and the foil packaging was intact. Mr. Martin removed this foil sheet from the car and put it in his jacket pocket. He looked under the driver’s seat but did not see or touch anything. He then called Cecile Fournel from the car, and asked her about the missing mileage book. He did not mention the foil sheet of pills.

140Mr. Martin testified that he was prompted to look in Cecile Fournel’s car and go to the house because he was curious. Otherwise, he had no explanation for why he went to look into the car.

141Ms. Beaven worked until 5 p.m. that day and Mr. Martin did not come back to see her after he had been to look in the crime car.

142Mr. Martin then left the office and drove directly to Chantal Boudreau’s house, which by now was being guarded by a security service. He left his car to speak to the security guard briefly, then returned to his car, drove home and hung up his jacket, leaving the pills inside the pocket. During the time he had on his jacket, Mr. Martin had his hands in his pocket and according to his evidence, he played with the foil sleeve, bending it along the perforations until each of the eight foil squares was separated one from the other.

143By this time, Mr. Martin was also trying to get in touch with Chantal Boudreau, to ask her how she was. He called her on her cell on his way to the fire scene and left a message. Later in the evening, he called her again. He asked her how she was and Ms. Boudreau responded by asking him if he could come over to her mother’s to see her. Mr. Martin arrived at Mrs. Lise Boudreau’s house at approximately 9:20 – 9:30 p.m.

144As Chantal Boudreau was explaining what had happened the night before, she told him that she had consumed alcohol and got intoxicated in a short time, which to her was not normal, Mr. Martin told her what he had found in Cecile Fournel’s crime car. At the time he told Chantal Boudreau that he had found pills, he didn’t know what they were, so he called his wife to ask her to look in his jacket pocket which was hanging in the closet at home and asked her to tell him the name of the pills. Penny Martin indicated that she retrieved the pills and told Mr. Martin that the pills said Nytol on the packaging. Mr. Martin relayed this information to Chantal Boudreau and her mother.

145Mr. Martin told Chantal Boudreau that she should get a blood test. At that point, Chantal Boudreau advised that she had already given a sample to the labs on the advice of her lawyer.

146Mr. Martin described his state of mind. He said he could not believe what Chantal Boudreau had described had actually happened. He did not want to jump to conclusions about his partner until they had the lab results. He did not want to look like a fool if this had not happened the way Chantal Boudreau had described it. Mr. Martin suggested to Chantal Boudreau that there was no reason to disclose his finding of the pills to the Timmins police at this time and asked her to keep his name out of the investigation for now.

147Before the pills were properly logged as exhibits in an investigation, they travelled a journey with many stops along the way. According to Mr. Martin, he retrieved an intact foil sleeve of eight pills from the crime car, which he put in his pocket. While the pills remained in his pocket over the next half hour, he separated all eight of them. He then hung the jacket up in the closet of his home. He left the home without the jacket and called his wife to retrieve the pills from his pocket and read the writing on the back. Mrs. Martin confirmed that when she looked at the pills they were separated. This was on Friday. Mr. Martin then went away for the weekend, without the jacket. He returned to work on Tuesday, March 3 and put the pills in a ziplock bag and brought them to the office and stored them in his secure gun locker. That day or the next he logged the pills in the property vault at the OPP detachment with Acting Administrative Sergeant Brenda Beaven.

148According to Ms. Beaven, Mr. Martin spoke to her March 3^rd and showed her the ziplock bag with the Nytol tablets in a blister pack. He told her where he had found it and that Chantal Boudreau was awaiting the results of a toxicology test. Ms. Beaven suggested that he hang onto the pills till the blood work came back and Martin returned the pills to his pocket. The following day Mr. Martin came back with the ziplock bag and a property report and asked to put the bag in the property vault. He said he had been advised by someone to do this. The two went into the property vault and put the bag on a shelf and left the vault.

149Ms. Beaven seemed to be somewhat confused about the appearance of the pills. She indicated that the pills she saw on March 3 and 4^th looked the same as the court exhibit, which was a bag with separated foils squares. She said she did nothing to change the appearance of the item. However, she then said that when she dealt with the bag, all the pills were attached.

150On March 6^th, Staff Sergeant Witty, who was the detachment commander, received a call alerting him to issues with respect to the crime car and the pills. He immediately made arrangements to have the crime car picked up and moved from the OPP detachment. The next day, he called Ms. Beaven and told her to remove the bag of pills from the property vault and put it in his locked drawer. She followed these instructions. On March 10^th, the bag was removed from Staff Sergeant Witty’s desk, placed in a sealed envelope with a forensic seal and turned over to the officer investigating the fire.

151The exhibit in this proceeding was a ziplock bag with 7 separated Nytol gel capsules in foil squares or blister packs. Mr. Palmentier testified that when he received this item for analysis there had been eight gel capsules, but one of them had been opened for analysis.

152Even if one accepts that David Martin had a history of being nosey and probing into the affairs of his work mates that were not his business, his conduct from February 26 on is very unusual. But for his explanation that he was curious, he could not explain his actions starting with his unusually early 5 a.m. arrival the day after the fire; his call to the custodian to confirm what had been said by Ms. Fournel; his probing for information from Ms. Beaven, not treating the pills as evidence according to police protocols long after he had reason to believe they would be part of a criminal investigation; but most particularly, and most significantly, his decision to do a search of Cecile Fournel’s crime car. He went to the car, after learning that Cecile Fournel had the car the night of the fire and that she had brought the car to Chantal Boudreau’s house and that it was still there during the fire. To add to this unexplainable conduct, is what Mr. Martin did with the foil sleeve of pills which he finds in the car. He put them in his pocket and left the detachment to go to the fire scene. By the time he visited Ms. Boudreau at 9 p.m. that night, he was linking, in some way, the pills he had retrieved from the car to Chantal Boudreau’s account of a possible drugging. It is hard to fathom, that he left the drugs in a pocket of a jacket in his home over the next four days. By the time Mr. Martin returned to work on March 3^rd, his ‘suspicions’ were fully developed, but still he did not follow any protocol known to police to preserve the integrity of the evidence. Mr. Martin testified that he didn’t want to believe that his partner (Cecile Fournel) would do anything like what was being suggested by Chantal Boudreau.

153There were many opportunities for these pills to have their integrity compromised between the time they were retrieved from the crime car to the time that Staff Sergeant Witty put them in a sealed envelope with a forensic stamp. The packaging was compromised by Mr. Martin within the first hour after they had been removed from the car. They were unprotected and accessible at Mr. Martin’s home for at least three days. Mrs. Martin had already taken them from the pocket at least once. From March 3 – 10^th, at least three people including Mr. Martin, from the detachment had access to the property vault. I find that the evidence with respect to finding of these pills in unreliable.

154Nothing in the evidence however suggests that Mr. Martin had any motive to try to discredit Cecile Fournel in retaliation for her involvement in a workplace complaint against him. He testified that he didn’t know that Cecile Fournel had anything to do with the complaint until the preliminary inquiry. In any event, the issue was never given the status of a formal complaint. He was told to ‘smarten up’. His superior, Sergeant Pilon, who had a close personal relationship with Cecile Fournel, felt it was a manageable incident that could be handled without formal documentation. Sergeant Pilon testified that there had been long standing tensions between men and women in the detachment office.

155Both Chantal Boudreau and Mr. Martin rejected the general allegation that they had any sort of social or outside of work relationship. No specific allegation was put to either of them. Mrs. Boudreau was present when Mr. Martin visited with Chantal Boudreau at her home the night after the fire. Mrs. Boudreau testified about the conversation with the two of them including the discussion regarding finding the pills in the crime car and the idea of going for a toxicology test. There is nothing in the evidence that suggests that there was anything other than a short term supportive work relationship between David Martin and Chantal Boudreau.

156If David Martin were not a police officer working in the criminal investigation branch, one might speculate that he was a ‘wannabe’ crime investigator, who was off on an amateur frolic. The fact that he was a trained, experienced investigator makes his conduct all the more peculiar. It is troubling that he could not explain why he thought he needed ‘to make sense of the events’, by seeking out information from colleagues, going to the fire scene and searching the crime car. It is troubling that he did not treat the pills as evidence, either immediately or at the very latest after he realized they might be linked to what he heard from Chantal Boudreau of what happened that night and once he knew she was waiting for the lab results. However, there is no evidentiary link between this behaviour and any motive or reason or actions taken to concoct an elaborate story to blame Cecile Fournel for the fire. The defence allegation that David Martin was part of a plan with Chantal Boudreau to create evidence against Cecile Fournel to assist Chantal Boudreau deflect blame for the fire is based solely on what can be described as very odd behaviour for a police officer. While the behaviour is unexplained, and in some aspects extraordinary; on its own, it does not lead to the conclusion that he was actually taking steps to frame Cecile Fournel for drugging Chantal Boudreau. This is particularly so since the evidentiary link between the diphenhydramine and Cecile Fournel originates with the video of her purchase of the Nytol in close proximate time and place to where and when Chantal Boudreau allegedly ingested the drug.

III. Analysis of Chantal Boudreau Evidence

157The defence alleges that Chantal Boudreau had a motive to blame Cecile Fournel for the fire once she realized that Evan Palaszewski could or would raise her blameworthy conduct in the custody battle. Chantal Boudreau agreed that she was engaged in a bitter dispute over custody of the children and that the parents were making allegations against each other. She agreed that she would do anything to maintain her position in the custody dispute. The defence points to evidence that on the morning after the fire Evan Palaszewski made comments suggesting that Chantal Boudreau had been drunk and had caused the fire by smoking in bed or carelessly placing candles near the bed.

158The defence also argues that Chantal Boudreau had the opportunity to ingest diphenhydramine from medications she kept at home and that the substances found in her urine sample could have come from these medications.

159Finally, they further allege that Chantal Boudreau’s evidence raises serious credibility issues that make her version of events completely unreliable.

160Within Chantal Boudreau’s evidence there are a number of issues which raise credibility issues, including her statement that on the night of the fire, she saw Cecile Fournel bring candles into the room and which colours of candles she brought into the room. There are also inconsistencies within her evidence which I will deal with further. However on the whole, I find that Chantal Boudreau’s evidence is confirmed by many witnesses, including disinterested witnesses, on banal facts and on significant facts. Notwithstanding certain weaknesses in Ms. Bourdreau’s evidence on a few points, the confirmatory evidence is capable of restoring my faith in the main body of her evidence.

161I find that Chantal Boudreau’s evidence was confirmed as follows:

1. The plan to take the kids swimming was confirmed by Lise Boudreau;

2. That Cecile Fournel arrived at Chantal Boudreau’s home between 6:00 and 6:15 p.m. was confirmed by neighbours and by Cecile Fournel;

3. That Chantal Boudreau called Evan Palaszewski around that time of Cecile Fournel’s arrival was confirmed by the phone records;

4. That Cecile Fournel brought wine and coolers to house was confirmed by Cecile Fournel in a conversation with Bev Mackey;

5. That Cecile Fournel brought wine glasses to house was confirmed by Cecile Fournel in her statement;

6. That the purpose of the visit was to talk about access issues was confirmed by Cecile Fournel in her conversation with Bev Mackey and in her statement and in her conversation with Mme Faucher;

7. That Cecile Fournel poured the wine was confirmed by Cecile Fournel in her statement;

8. That the two women drank two glasses of wine and one cooler was confirmed by Cecile Fournel in her statement and in part in her conversation with Bev Mackey and Mme Faucher and Captain Giroux;

9. That Cecile Fournel stayed at least an hour and talked about access to the grandchildren was confirmed by Cecile Fournel in her statement and in her conversation with Bev Mackey;

10. That there was smoking during the conversation was confirmed by Cecile Fournel in her conversation with Captain Giroux;

11. That they lit candles to deal with the smoking was confirmed by Cecile Fournel to Lise Boudreau and Deputy Fire Chief Joey Stojkiewicz;

12. That Chantal Boudreau used a plastic bottle for an ashtray was confirmed by firefighter who found such a bottle;

13. That Chantal Boudreau didn’t usually smoke in house was confirmed by Mme Faucher who saw her outside in the garage;

14. That candles were lit to deal with the smell of cigarettes and Cecile Fournel was responsible to put out candles was confirmed by Cecile Fournel in part in her conversation with Bev Mackey and in part with Mr. Saudino;

15. That Cecile Fournel brought candles to the bedroom was confirmed by Cecile Fournel in her interview with Deputy Fire Chief Stojkiewicz and by her comments to Lise Boudreau around midnight at the Spooner Street residence;

16. That Chantal Boudreau was affected by a substance was confirmed by Cecile Fournel in her statement “she was loaded” and by Celine Faucher “she leaned on Evan Palaszewski to walk”, Mr. Faucher that her knees buckled, Lise Boudreau that “she kept her eyes closed and wanted to go to sleep”, also confirmed by Cecile Fournel in statement and to Bev Mackey, “put her to bed” and by Mrs. Boudreau that in the hours after the fire, she wasn’t very alert;

17. That Cecile Fournel brought Chantal Boudreau to bedroom was confirmed by Cecile Fournel in her statement and Deputy Fire Chief Stojkiewicz;

18. That Chantal Boudreau was not conscious when Cecile Fournel left was confirmed by Cecile Fournel in her conversation with Bev Mackey;

19. That Cecile Fournel was not affected by drinks was confirmed by her ability to drive and her ability to deal with officials from the fire department that night.

162I also find that Chantal Boudreau’s account of the evening and of the fire is consistent from the moment she made the 911 call, which is while she is still somewhat impaired and before she had heard Evan Palaszewski’s comment that he might use this event against her in the custody battle.

163Chantal Boudreau told the 911 operator that she saw the fire close to her, she did not say on the mattress. Chantal Boudreau tells first neighbour that she saw a fire in the closet, that her mother-in-law put her to bed and that she would take care of everything.

164There was no evidence to suggest that the amount of alcohol that Chantal Boudreau drank that evening could possibly explain her level of impairment. Cecile Fournel said in her statement that Chantal Boudreau had two to three glasses of wine and some cooler. She also said that Chantal Boudreau was loaded.

165The defence alleges that the evidence of Chantal Boudreau is replete with improbabilities and implausibilities, either with respect to Cecile Fournel’s actions or Chantal Boudreau’s actions.

166Chantal Boudreau testified that Cecile Fournel said, “We need to talk this out. Let’s get drunk and talk this out”. While on the surface it may sound improbable that Cecile Fournel said such a thing, it is completely consistent with her actions, including showing up at the house unannounced with a backpack with wine glasses and enough alcohol to get drunk, with the intention of tackling a topic that would be difficult for both the mother and the grandmother, and pouring each of them a drink immediately upon entering the house. There is no dispute to this portion of the narrative. There had been tension between the two women at work; both of them were preoccupied with the custody and access dispute. Obviously Cecile Fournel had a plan to share more than one drink. It is not unheard of for people to use alcohol as a way of easing tension before unpleasant or difficult conversations. In the context of what we know that Cecile Fournel did, this comment from her as related by Chantal Boudreau does not seem implausible. The comment is no more implausible than the whole plan, however, there is confirmatory evidence as to most other parts of this plan.

167The defence alleges that it is implausible to believe that Cecile Fournel suggested that Chantal Boudreau call Evan to say that she was sick and that Chantal Boudreau complied with her suggestion to allow Evan to keep the children overnight. This “directing” behaviour of Ms. Fournel’s, that is coming to the house with drinks and her agenda, telling Ms. Boudreau what they are going to talk about and that Chantal should make a call to ensure that they were alone and not disturbed, may sound, on the surface, somewhat implausible but it is consistent with evidence from Lise Boudreau that Ms. Fournel was nice towards Chantal but always very controlling.

168Chantal Boudreau testified that she was already feeling significant tension between Cecile Fournel and herself in the workplace. She testified that Cecile Fournel was raising the issue at work. Chantal Boudreau had instructed her lawyer to send a letter to Cecile Fournel, telling that Cecile Fournel to stop causing Chantal Boudreau problems at work. Chantal Boudreau had asked to have her office moved away from Cecile Fournel. Partly as a result of Cecile Fournel’s forceful intervention opposing the move, that request was denied. It is understandable and not outside of our experience in human relations that Chantal Boudreau would accept an invitation to discuss the problem alone with her mother-in-law to try to come to some sort of understanding. It is not improbable that a parent in the midst of a custody dispute would accept the invitation to a private talk with the ‘controlling’ mother-in-law, who she loved as a mother, even if this meant allowing the father to have this extra night with the kids. There is nothing in the evidence to suggest that Chantal Boudreau was a stranger to alcohol. She said she was happy to sit down and have a drink and relieve the stress. There was no reason for her to refuse to drink with her mother-in-law in the circumstances or have this conversation in the absence of the children. It makes a great deal of sense.

169Chantal Boudreau agreed that it was unusual for Cecile Fournel to pour her a cooler when she asked for wine and unusual for Cecile Fournel to encourage her twice to drink the cooler and then suggest that they go downstairs to talk. It is not improbable that Chantal Boudreau had not yet become suspicious. At this point, everything had happened and been said within a very short time. Given the high tension and stress between the two, it is understandable that Chantal Boudreau might be more preoccupied with the issue that they had to discuss than Cecile Fournel’s unusual behaviour.

170The defence argues that it is implausible and improbable that Cecile Fournel would encourage Chantal Boudreau to smoke inside the house, given her views on smoking. But, much like the idea of using alcohol to reduce stress and tension, it is understandable that Cecile Fournel might overcome her usual views about smoking in order to get Chantal Boudreau’s undivided attention. Cecile Fournel could not achieve her goal of having a serious discussion and trying to persuade Chantal Boudreau to give her more access, if Chantal Boudreau were going outside for cigarette breaks at inopportune moments.

171While some of what Ms. Boudreau describes may sound implausible, there is confirmatory evidence for other things that Ms. Fournel did that would otherwise sound implausible, for instance: bringing so much alcohol on a visit to a working mother in mid-week; drinking wine coolers, wine and coolers and then driving the crime car back to work; noting in her notebook that she was on duty when she tackled a serious family problem for up to two hours while drinking wine and coolers. The evidence of what Ms. Fournel said to Ms. Boudreau, that is unconfirmed, does not sound implausible in this context.

172The defence further argued that Chantal Boudreau’s credibility was weakened by inconsistencies in her various statements on the topic of smoking.

173In the family law proceeding, the fire investigation and the criminal matter, Chantal Boudreau made a number of statements about her smoking practices. She was interviewed by Ms. Jauvin from Child and Family Services who, among other things, was asking questions in a follow-up to allegations that Chantal Boudreau had caused the fire by careless smoking. Chantal Boudreau admitted that she wanted to paint a good impression of her suitability as a mother. Chantal Boudreau does not dispute that she told Ms. Jauvin that she was a non-smoker and that Cecile Fournel offered her cigarettes. Although Chantal Boudreau could not specifically recall saying that she was a non-smoker to Ms. Jauvin, if she did say it, it would have been incorrect and untrue. In the interview, Ms. Boudreau was doing her best to present an overall picture of a careful mother. If she usually smoked outside, as was confirmed by the neighbour, it would have been stretching the truth to say that Cecile Fournel offered her cigarettes, in order to support her own feeling that Cecile Fournel had to share some responsibility for Chantal Boudreau having smoked in the house that night. The fact that Chantal Boudreau smoked inside her mother’s house, after the fire, does not contradict her evidence that at the time of the fire, at her own house, it was her practice not to smoke in the house.

174Some of the most serious allegations made by Chantal Boudreau have to do with Cecile Fournel bringing candles and the ‘water bottle ashtray’ into the bedroom. Chantal Boudreau testified that when she was originally helped into bed, she was lying on her side, without her glasses, with her back to the door to the room. In this position, it would be almost impossible for her to see Cecile Fournel enter the room and put anything on her bedside table at her back. However, Chantal Boudreau testified that she saw Cecile Fournel bring a pink candle into the room although she had not disclosed that specific information in earlier statements. In the family law proceedings, Chantal Boudreau deposed that she saw Cecile Fournel bring the water bottle into the room, although at this trial she could not explain how the water bottle got into the room.

175There are two issues raised with respect to this inconsistency. Can I rely on this evidence to find that it happened and second, even if I do not rely on Chantal Boudreau’s evidence in this regard, can I find that Cecile Fournel brought the candles and the water bottle into the bedroom?

176I will not rely on Chantal Boudreau’s evidence on this point. It is hard to accept that she could see Cecile Fournel bringing things into the room if she were lying in the position described. I am mindful though of the uncontradicted evidence that Chantal Boudreau was what may be described as impaired. She was impaired to the point that she was walked to her room and she was loaded. Both of these descriptions came from Cecile Fournel herself. In such a state, Chantal Boudreau may be understandably fuzzy in her recollection of how she was lying on the bed during this period. On the basis of Cecile Fournel’s statements to Lise Boudreau and Deputy Fire Chief Stojkiewicz, I am satisfied that Cecile Fournel did bring the candles into the bedroom and put them on the night table. On her own initiative, she acknowledged doing this. There is no evidence to confirm the allegation that Cecile Fournel brought the water bottle into the bedroom.

IV. Cecile Fournel’s Motive and Animus

177Cecile Fournel loved her grandchildren, H. and A. She spent a lot of time with them before the separation. She would babysit them and have them to her house. After the separation she did not see the grandchildren as much. Cecile Fournel had also been very involved in Chantal Boudreau’s life. They were very close emotionally. Their houses were very close to one another and they worked in the same office. Cecile Fournel was prepared to maintain that close proximity and relationship notwithstanding the break-up of Chantal Boudreau and Evan Palaszewski.

178Cecile Fournel was very upset and hurt that her time with the children had been reduced and restricted. She told Bev Mackey this on their trip from Orillia to Toronto. She was very knowledgeable about the details of the family law dispute. She expressed to Bev Mackey that she was concerned that she wouldn’t be able to see the children for a long, long time. The custody battle was weighing heavily on her mind.

179In January or February 2009, Cecile Fournel had spoken to her long-time friend and colleague Sergeant Pilon. Cecile Fournel told Sergeant Pilon that she was having continuing difficulties with the situation between Chantal Boudreau and Evan Palaszewski. Mr. Witty described Cecile Fournel as visibly concerned. She spoke about Chantal Boudreau’s request to move from Timmins and how the restricted access was affecting her and her husband.

180In an email written to her friend the day before the fire, she referred to Chantal Boudreau’s application to move the kids to Sudbury and wrote: “We don’t think we have any chance of stopping her but we are going to try anyway.”

181Cecile Fournel expressed very negative feelings toward Chantal Boudreau in an email communication to a friend approximately ten days before the fire in mid February 2009. In that email friend, in a reference to someone with serious health problems, Cecile Fournel says: “I’d like to say I wouldn’t wish that on my worst enemy but these days I think I would wish that on Chantal for what she is doing to everyone… We keep fighting along though and I hope justice will prevail but it appears that she is the one with all the rights and Evan has none, nor do we.”

182I take from these notes and comments that Cecile Fournel saw herself as one of the parties in this custody battle. She was involved in the litigation and began her sentences with “we”. She was hiring the lawyer for Evan. She was not an observer to this dispute between the parents; she was very much a participant and she felt that Chantal Boudreau held all the cards.

183I am satisfied that Cecile Fournel had a motive to discredit Chantal Boudreau in her quest for custody and the right to move and Chantal Boudreau’s goal to portray herself as the most suitable parent.

184In considering motive and the animus that Cecile Fournel might have had towards Chantal Boudreau, I do not consider the evidence of Staff Sergeant Witty, who testified about a conversation he had with Cecile Fournel on March 3, 2009. There may have been some confusion as to when that conversation took place but if it took place after the fire and possibly after Cecile Fournel has learned that Chantal Boudreau had made allegations against her, it should not be used to assess pre-event animus.

185For Cecile Fournel, the restricted access to her grandchildren meant much more than simply seeing the children less frequently. It signalled that Chantal Boudreau was no longer going to be compliant with Cecile Fournel’s wishes. Both Chantal Boudreau and her mother Lise Boudreau described Cecile Fournel as very controlling. The break up with Evan Palaszewski triggered a reaction on the part of Chantal Boudreau that was directed as much against Cecile Fournel as against Evan Palaszewski. Cecile Fournel had recognized this and commented on it during her interview with Detective Sergeant Bickerton. Not only was Chantal Boudreau calling the shots on when Cecile Fournel could see the children, but she had also refused, for the first time, Cecile Fournel’s offer of assistance to secure new housing. In doing so, she was supported by her own mother.

186Chantal Boudreau was turning her back on Ms. Fournel, who had been so helpful and supportive to Ms. Boudreau. Chantal was the one obstacle standing in the way of Cecile Fournel seeing her beloved grandchildren more frequently. There were two ways for Cecile Fournel to achieve her goal of increased access to the grandchildren, either trust in the legal process or work outside the legal system. In Cecile Fournel’s mid-February email to her friend, she characterizes Chantal as someone who is worse than her worst enemy. She was bitter and not confident that the legal dispute would end well for them or her.

187While we cannot say what specific goal motivated Cecile Fournel, we can say she was motivated by passions, love of her grandchildren, the loss she was feeling at seeing them less and the anticipated loss if they moved away, and the betrayal by someone to whom she had given so much emotionally, financially and in terms of support. These feelings were foremost in Cecile Fournel’s mind in the latter part of February 2009.

V. Elements of the Offences and R. v. W.(D.) Analysis

188On the charge of attempt murder, the Crown alleges that by setting fire to the bedroom, knowing that Chantal Boudreau was asleep and impaired, Ms. Fournel formed the specific intent to kill Chantal Boudreau. The Crown must prove beyond a reasonable doubt each of these essential elements:

1. That Cecile Fournel’s conduct was an attempt to murder Chantal Boudreau

2. That Cecile Fournel meant to kill Chantal Boudreau.

189With respect to the charge of arson, s. 433, the Crown alleges that Cecile Fournel intentionally set the fire knowing Chantal Boudreau was in the house. The Crown knowing Cecile Fournel was in the house must prove beyond a reasonable doubt that:

1. Cecile Fournel caused damage to Chantal Boudreau’s house by fire

2. Cecile Fournel caused the damage intentionally

3. Cecile Fournel knew that Chantal Boudreau’s house was occupied.

190With respect to the charge of administering a noxious substance, s. 245, the Crown alleges that Cecile Fournel administered diphenhydramine to Chantal Boudreau with the intent to endanger her life or to aggrieve her. The Crown must prove beyond a reasonable doubt that:

1. Cecile Fournel administered a destructive or noxious thing to Chantal Boudreau, and

(a) that Cecile Fournel intended to endanger the life or cause bodily harm to Chantal Boudreau, or

(b) that Cecile Fournel intended to aggrieve or annoy Chantal Boudreau.

191The key questions in this case are whether Cecile Fournel put a drug into Chantal Boudreau’s drink with the intent of altering her state of consciousness and then whether she lit a fire in the closet of the bedroom, knowing that Chantal Boudreau was there in the bedroom, all in an attempt to kill Chantal Boudreau, all of which is alleged by the Crown.

192The defence challenged the credibility and reliability of Chantal Boudreau and raised alternate theories in cross examination with the intent to raise doubts as to the link between Cecile Fournel and the drug found in Chantal Boudreau’s system and as to the cause and origin of the fire.

193The credibility of Chantal Boudreau and the reliability of the expert opinion by Douglas Horn are central to the fact finding task in this case. Accordingly, I must apply the W.(D.) analysis to the essential elements of each offence that rest on their evidence.

194The principles in R. v. W. (D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) apply when considering any conflicting evidence favourable to the accused in relation to the essential elements of the offenses. Recently in R. v. B.D., 2011 ONCA 51 Blair J.A. held that the W.(D.) analysis applies in circumstances where a conflicting exculpatory account emerges through the Crown witnesses. At para. 114:

What I take from a review of all of these authorities is that the principles underlying W.(D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep. Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown’s case, the trial judge must relate the concept of reasonable doubt to those credibility findings.”

195The three step formula in W.(D.) as it applies to this case may be expressed as:

1. If I believe the exculpatory account advanced by the defence, there must be an acquittal;

2. If in view of the conflicting testimony, reasonable doubt exists as to exactly where the truth of the matter lies, there must be an acquittal (see R. v. Nimchuk (1977), 1977 CanLII 1930 (ON CA), 33 C.C.C. (2D) 209 at 210 (Ont. C.A.);

3. If I accept the Crown’s inculpatory account beyond a reasonable doubt, there shall be a conviction.

196The second step of the test is meant to capture the situation where the trier of fact is left in a state of uncertainty and does not know what to believe. Feldmand J.A. explained how to approach steps one and two of the test in R. v. Hoohing (2007), 2007 ONCA 577, 74 W.C.B. (2d)676 at para. 15 (Ont. C.A.):

When the jury is applying the first two prongs of the three pronged test in W.(D.) they are deciding whether they can accept the accused’s version of events or whether it leaves them with a reasonable doubt. Clearly they can only do that by assessing the accused’s evidence and the other evidence that favours the accused in the context of all the evidence.

1. W.(D.) Analysis on Count of Arson

197On the charge of arson, the evidence favourable to the accused includes:

1. That Mr. Choudry could not establish that there was no beading at the ends of the severed wires in circuit B and therefore could not conclude that there had been no arcing at that point;

2. That Mr. Choudry did not preserve the evidence from circuit B, which would have allowed another expert to assess the status of the wires.

198I am satisfied with Mr. Choudry’s responses to these challenges. His evidence was based on a careful and recorded, on sight, close-up observation. The alternate theory of possible fused wires was mere speculation, unsupported by any evidence, including by the firefighter who took the photograph in Exhibit 92. The evidence does not raise a reasonable doubt or leave me uncertain on this point.

199I accept Mr. Choudry’s opinion that the electrical system did not cause or contribute to the cause of the fire. It is well founded on all of the evidence. Mr. Horn could reliably depend on this opinion in his analysis.

200With respect to Mr. Horn’s opinion on the cause of the fire and the area of origin, the evidence favourable to Chantal Fournel includes:

1. Possibility that candles or cigarettes started the fire closer to the bed: based on unexplained absence of bedding, the alternate cause of the irregular burn mark on the floor; the cigarettes and candles found in close proximity to the bed; and Chantal Boudreau’s attempt to control the fire when she first awakens;

2. Possibility that the fire was caused by circuit B in the electrical system;

3. Absence of explanation for fire on south side edge of the bed.

201None of these alternate theories or attempts to undermine Mr. Horn’s opinion found any traction with respect to Mr. Horn’s opinion on the area of origin and cause of the fire. His evidence stood up to rigorous scrutiny.

202Mr. Horn was a thoughtful and experienced investigator and witness. He approached the investigation with an open mind. He considered every suggestion put to him in cross examination. He reasonably accepted many of these suggestions and hypotheticals. He supported his opinion with careful analysis, observations of physical evidence and logical inferences. He carried out his investigation according to the scientific method, excluding all possibilities before coming to the conclusion that the fire was an incendiary fire, that is, one intentionally started.

203With respect to the suggestion that the fire was caused by the failure of the electrical system, Mr. Horn engaged a professional to assist him with the investigation of the electrical system. Mr. Horn properly relied on Mr. Choudry’s opinion which is supported by Mr. Horn’s own observations. Mr. Horn did not direct or suggest any outcome to Mr. Choudry. With respect to the issues raised by the unexplained fire damage on the south side edge of the mattress, Mr. Horn considered evidence that suggested the use of an accelerant. He sent samples to the lab to test his theory. The results did not support the use of an accelerant, therefore, Mr. Horn rejected that theory and continued to formulate alternative theories, each of which he tested.

204With respect to the evidence regarding the possibility that the candles or smoking materials caused the fire, Mr. Horn’s evidence is consistent with the fire damage found by the firefighters and consistent with the observations of Chantal Boudreau as described to her neighbour at the scene and as reported to the Fire Deputy Chief within 24 hours of the fire. The evidence, underscored by the defence, merely raises the remote possibility, unsupported by other evidence, that the smoking material started the fire. Notwithstanding that some of these cigarette butts may have moved during fire suppression efforts, at least one of them was barely consumed. No burn marks could be linked to the smoking materials. The irregular burn pattern could not support the proposition that the fire started at the mattress and spread to the closet. Mr. Horn’s opinion stands up to every alternate theory and proposal put to him. I am satisfied beyond a reasonable doubt that the fire was caused by the intentional application of flame to the combustibles in the open closet.

2. W.(D.) Analysis of Administering a Noxious Substance

i) Evidence Favourable to the Accused

205On the charge of administering the noxious substance, the evidence favourable to the accused includes:

1. the inability to pinpoint in time when Chantal Boudreau ingested the diphenhydramine;

2. that Chantal Boudreau had the opportunity to voluntarily ingest diphenhydramine from her own medications;

3. the limited opportunity (approximately one minute) in the kitchen that Cecile Fournel had to put diphenhydramine into Chantal Boudreau’s drink;

4. that Cecile Fournel took no steps to conceal what she was doing in the kitchen once Chantal Boudreau entered the kitchen area;

5. that Cecile Fournel drank from both the wine bottle and the opened cooler and did not suffer any effects;

6. that Chantal Boudreau had the opportunity to sedate herself with alcohol before and after Cecile Fournel left;

7. the absence of evidence linking Cecile Fournel to the benzodiazepine;

8. that Chantal Boudreau had a motive to deflect blame from herself over to Cecile Fournel;

9. that Chantal Boudreau had in the past improperly taken prescription and non-prescription drugs and required hospital treatment;

10. various inconsistencies in Chantal Boudreau’s evidence regarding what and when Cecile Fournel said things to her about drinking the cooler;

11. the improbability that one would choose to ‘hide’ a drug into a clear coloured cooler instead of red wine, especially where Chantal Boudreau was known to dislike coolers;

12. that Cecile Fournel took no steps to prevent detection;

13. that no products containing diphenhydramine or packaging relating to such drug was found linked to Cecile Fournel (I exclude the product found in the crime car for this analysis)

14. inconsistencies with respect to Chantal Boudreau’s evidence on where and when her knees buckled;

15. That David Martin’s evidence raises questions about his involvement with Chantal Boudreau to discredit Cecile Fournel.

206The defence argues that the evidence could leave one in doubt as to whether Cecile Fournel administered a drug to Chantal Boudreau the night of the fire or whether she voluntarily ingested diphenhydramine and a benzodiazepine at any time three to four days before the lab test.

207The suggestion that the lab test detected drugs that Chantal Boudreau had taken in the days prior to the fire is inconsistent with the description of Chantal Boudreau that evening furnished by Cecile Fournel herself and by Chantal Boudreau and unsupported by any other evidence. Chantal Boudreau experienced sedative effects the evening of February 25 approximately an hour before the fire started. Around that time, Cecile Fournel stated that she walked a ‘loaded’ Chantal Boudreau to the bedroom and put her to bed. Both Chantal Boudreau and her mother Lise Boudreau described Chantal Boudreau as being continuously sleepy and not alert in the hours after the fire. On the other hand, Chantal Boudreau worked at the office on the day of the fire.

208Nor is there any evidence to support a possibility that Chantal Boudreau could have taken the drugs in the morning before the lab test. She was obviously mobile and driving her own car that day, going to the lab within hours of leaving Cecile Fournel’s house.

ii) Opportunity to Administer the Drugs

209The defence argues that Cecile Fournel did not have sufficient, unmonitored time to put any drugs into the drink she poured for Chantal Boudreau and that she drank both the wine and the cooler. They say that even if Cecile Fournel purchased the Nytol around 5:30 p.m. that evening, she could not have known that she would find Chantal Boudreau alone at the house at that time; that she didn’t have enough time alone to put the Nytol in the drinks; and that she couldn’t disguise the Nytol in the drink.

210Mr. Martin’s evidence was that Cecile Fournel was at work on February 25^th. He last saw her around 4 p.m. Around that time, he saw her get ready to leave and leave work. This evidence was unchallenged and I accept it. Chantal Boudreau testified that Cecile Fournel would have known about the original plans for the whole family to go to the pool. Cecile Fournel lived with her son Evan. Although there are no phone records between them after the call between Evan and Chantal Boudreau confirming that Chantal Boudreau would not be going to the pool, Cecile Fournel had plenty of time to communicate with Evan directly to learn about the changed plans. It makes no sense that Cecile Fournel would show up at the house with a backpack of glasses, wine and coolers if she thought Chantal Boudreau would be at the pool. Cecile Fournel stated that she went there to have a discussion about the access issues. She wouldn’t have such a plan if she thought Chantal Boudreau wasn’t going to be there. I am satisfied that Cecile Fournel bought the Nytol, with the plan to visit Chantal Boudreau and that she knew Chantal Boudreau would be alone at the house.

211I accept the uncontradicted evidence that Ms. Fournel bought the Nytol, which contains diphenhydramine approximately 40 minutes before visiting Chantal Boudreau. Thus, there was opportunity for Cecile Fournel to put the Nytol in the glass especially when we consider that she brought the wine glasses in her backpack. Cecile Fournel was in possession of the glass and the diphenhydramine for over half an hour prior to her arrival at the house. There was ample opportunity to unpackage the drug, dispose of the packaging, and to put the drug in the glass before going to Chantal Boudreau’s house. Or, if she had unpackaged the drug prior to her arrival at the house, Cecile Fournel could have put the contents of the capsule in the glass in seconds once she arrived in the kitchen alone. Chantal Boudreau did not see her unpack the items. There was also an opportunity to put the Nytol in the drink while Chantal Boudreau was on the phone in the landing.

212There was no evidence whether the contents of the Nytol gel capsule have a colour or taste. The defence suggested that it made no sense to put the Nytol in a colourless cooler, when it could have been better camouflaged in the dark red wine. However, perhaps the taste of the Nytol would be best camouflaged in the cooler, given Ms. Boudreau’s familiarity with Ms. Fournel’s wine, making this less of an improbability.

iii) Chantal Boudreau Access to Diphenhydramine and Benzodiazepines

213The defence argues that Chantal Boudreau could have self-administered the diphenhydramine that was found in her system on February 26. There was evidence that Chantal Boudreau kept a small box of medications in an upstairs linen closet. That box included three products containing diphenhydramine (sleep aids and travel aid). The expiry dates on those bottles was 2003 and 2006. There is no doubt that Chantal Boudreau had access to those drugs. She testified that those products had been in her closet since 2003 – 2004 when she was in college and that she had not taken any medication from them since around that time. She also denied taking any medication in the days leading up to the fire. This box of products was found by investigators after the fire and during the time when access to the house was restricted. Had Chantal Boudreau taken pills from those bottles the evening of the fire, she would have had to carefully replace them before the fire. Chantal Boudreau did not have much opportunity to take the pills that night; when Cecile Fournel left she was asleep in bed. In order for Chantal Boudreau to have taken those pills causing the finding of diphenhydramine in her system on February 26, she would have had to take them before 6 p.m. the day of the fire or in the days preceding the fire. There would be no logical reason to take a sleep aid before supper, at 6 p.m. and then be outside texting and smoking. Therefore, the only other explanation is that Chantal Boudreau took the sleep aids two days before that evening. If she were taking sleep aids at the time it makes no sense that they would be stored up on a high shelf in the linen closet, when other medications, obviously more recently prescribed or used, were found much more accessible in the kitchen. If Chantal Boudreau had taken those sleep aids found in the house, 24 to 48 hours before the fire, there is no explanation for why she was ‘loaded’ and had to be helped to bed in the early evening of February 25^th. However, there was expert evidence that the sedative effects of diphenhydramine would be noticeable in 20 to 60 minutes if the contents were removed from the gel capsule and added to a drink.

214There was no evidence on how the benzodiazepines got into Chantal Boudreau’s system. There was no evidence linking either Ms. Boudreau or Ms. Fournel to the benzodiazepines. Both women had disclosed their prescription histories to the investigators and no link was revealed. The source of the benzodiazepines detected in Chantal Boudreau’s system remains a mystery. The Crown asks the court to draw a reasonable inference that if Cecile Fournel put the diphenhydramine in Chantal Boudreau’s drink, that she also put the benzodiazepines.

iv) Inconsistencies in the Evidence of Chantal Boudreau

215The defence argued that the inconsistencies in Chantal Boudreau’s evidence make her evidence unreliable. They point to inconsistencies in statements regarding where and what Cecile Fournel said to her about drinking the cooler, where and how many times her knees buckled, whether she could or could not see what, if anything, Cecile Fournel brought into the bedroom after Ms. Boudreau was in bed. The assessment of credibility includes a careful examination of the consistency of what the witness said in the witness box and what the witness has said on other occasions: Regina v. G. (M) (1994) 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 at 354.

The trier of fact should look to the totality of the inconsistencies in order to assess whether the witness’s evidence is reliable. The totality includes not just the number of the inconsistencies but whether they involve a material matter about which an honest witness is unlikely to be mistaken.

216The issue of where and how many times Cecile Fournel encouraged or directed Chantal Boudreau to drink the cooler is a matter on which an honest person could easily be mistaken. While that behaviour was odd for Cecile Fournel, it was not of great importance at the moment and Ms. Boudreau could easily mis-remember whether she was upstairs or downstairs when it was said. One way or another, the witness was certain that she was encouraged to drink a drink she didn’t want and that this encouragement came soon after Cecile Fournel poured the drink. The two women moved downstairs within a very short time after the drink was poured.

217I make a similar observation with respect to the inconsistencies in Chantal Boudreau’s evidence about where she was standing when her knees buckled and if in fact her knees buckled at two locations or only one in the recreation room. These locations were within meters of one another. They were among the only times that Chantal Boudreau was standing during the visit downstairs, otherwise she was sitting. Nothing turns on the where and how many times Chantal Boudreau’s knees buckled. The significance of the evidence is Chantal Boudreau’s observation that she had a hard time standing up and that she was showing signs of impaired mobility. When one is impaired, one doesn’t have the best recollection of precise sequence or location of events. Ms. Boudreau confirmed that her evidence in chief was accurate, notwithstanding what she had said on a previous occasion that was closer in time to the actual event. There was no explanation for why her recollection was different; however, neither version of these facts has an impact on the allegations in any event. Ms. Boudreau was cross examined rigorously on everything that was said or happened during the visit with Ms. Fournel. Her prior testimony and statements were put to her. On these and a few other points, there were minor inconsistencies. She had to recall in sequence every event of an evening in which she went from being fully alert to unconsciousness. There is no requirement that she relate her version of events with perfect consistency every time.

218I consider separately the inconsistency with respect to Chantal Boudreau’s evidence in chief about seeing Cecile Fournel bring the pink candle into the bedroom. This evidence is consistent with Ms. Boudreau’s evidence at the preliminary inquiry. However, in a very early written statement, Chantal Boudreau had said that she saw Cecile Fournel walking into the bedroom with candles but didn’t know their colours. By the end of the cross examination, Chantal Boudreau accepted that she could not make out details without her glasses. The inconsistency is less significant than the vigour with which Chantal Boudreau defended her evidence in chief. It is possible that information about the colour of the candles is something that Chantal Boudreau picked up over the course of the investigation or over the two years since the event or imagined. The colour of the candle is not significant. The fact that Cecile Fournel brought candles into the room is confirmed through her own statements twice.

219Ms. Boudreau was on the stand for the best part of three days. She was faced with repeated allegations of lying, fabricating evidence and causing the fire, albeit with great respect and courtesy. It was obviously a stressful, emotionally draining and fatiguing experience. Her reaction on cross examination, refusing to acknowledge that she might not have been able to observe the colour may be explained in that light.

220The defence argued that Ms. Boudreau and Mr. Martin gave contradictory evidence with regard to a meeting between the two of them at the OPP detachment where Mr. Martin said that he showed Ms. Boudreau the pills he had retrieved from the cruiser. Ms Boudreau briefly described the meeting. Mr. Martin denied it ever happened. From the outset Mr. Martin did not want to disclose his involvement in finding the pills in the crime car. Perhaps the reason for this was that his handling of the Nytol was, in every respect, contrary to basic police practices. Ms. Boudreau’s evidence, that Mr. Martin showed her the Nytol after he had brought it to the detachment because he realized its importance to an ongoing investigation, would be another very serious breach of protocol. Consequently, Mr. Martin has every reason to deny that he did this. There is no reason for Ms. Boudreau to fabricate this evidence. It is an insignificant part of her story. Nothing turns on it. I prefer Ms. Boudreau’s evidence on this point.

v) Ms. Boudreau’s History with Prescription and Non Prescription Drugs

221The defence cross examined Chantal Boudreau with respect to a prior incident when she had overdosed with a street drug and alcohol and two incidents when she had bad adverse reaction after taking her husband’s prescription medications. The first incident occurred when Ms. Boudreau was 19 years old, approximately eight years prior to the fire. More recently, Ms. Boudreau explained that she used her husband’s prescription with his permission to deal with her migraines, had an adverse effect and attended the hospital. There is no evidentiary link between these incidents and the suggestion that Ms. Boudreau voluntarily took diphenhydramine as a sleep aid that night or the nights prior or that she took the diphenhydramine that morning to deliberately implicate Cecile Fournel in the fire. Nor does this evidence raise any suggestion that Ms. Boudreau had a propensity for taking drugs not prescribed to her.

vi) Ms. Boudreau’s Recent Legal Troubles

222It appears that the high conflict dispute between Chantal Boudreau and Evan Palaszewski continued long after the fire. In October 2010, while Chantal Boudreau was working at Boston Pizza, she spit into a drink that was to be served to Evan Palaszewski. She originally denied spitting in the drink, but after being charged with mischief, admitted to spitting and was given an absolute discharge. In December 2010 Chantal Boudreau was charged with “driving over 80.” She had been drinking that night but was not truthful with the officer who asked her how much she had been drinking. Ultimately Ms. Boudreau was convicted of careless driving and a fine was imposed.

223Both of these incidents show that Ms. Boudreau has and can be untruthful when faced with improper or illegal conduct. These incidents require the trier of fact to apply a high degree of scrutiny to Ms. Boudreau’s evidence. I do not want to exaggerate, however, the gravity of these incidents of dishonesty. While it is lamentable, it is not surprising or unusual for drivers to attempt to minimize their transgression when asked how much they have had to drink before getting behind the wheel. With respect to the spitting incident, it says as much about the maturity and sophistication of Ms. Boudreau and the acrimony between her and Evan Palaszewski as it does about her dishonesty.

vii) Chantal Boudreau’s Motive to Fabricate

224The existence or absence of a motive by the complainant to fabricate is a relevant factor to be considered: The Queen v K.G.B. 1993 CanLII 116 (Supreme Court of Canada). It must be considered in light of all of the evidence.

225The ongoing acrimonious custody fight between Chantal Boudreau and Evan Palaszewski does give Chantal Boudreau a motive to deflect blame for the fire away from herself. It was paramount that Ms. Boudreau maintain her position as the most suitable parent. By the morning after the fire, it was clear that Evan Palaszewski had told Chantal Boudreau, in an aggressive manner, more than once, that he intended to use the fact of Chantal Boudreau’s role in the fire in support of his position in the custody and mobility dispute. Thus to a great extent, the motive to deflect blame away from herself only arose in the morning after the fire, when in the clear light of day, Chantal Boudreau realized that she would be accused of carelessly causing a house fire. Nothing she said or did prior to that could be tainted by possible motive. The motive must be considered in light of all of the evidence, including evidence with respect to her opportunity to take diphenhydramine and benzodiazepines in the morning before the lab test and her reaction to the fire immediately after discovery.

226While Chantal Boudreau may have had a motive to deflect blame away from herself and logically therefore point the finger at Cecile Fournel, there was no reason or need to fabricate evidence of being drugged. It was always open for Chantal Boudreau to say that she had gone to bed and was asleep before Cecile Fournel left and that Cecile Fournel had brought candles into the bedroom after helping her to bed. If the fire was caused by careless use of the candles, Chantal Boudreau could just have easily have stated that the last person to handle the candles was Cecile Fournel and that Cecile Fournel had assured her that she would take care of putting out the candles. In other words, Chantal Boudreau could have persuasively deflected blame for the fire to Cecile Fournel without making any allegations of Cecile Fournel administering drugs to her.

viii) David Martin Role

227The defence argued that the unexplained actions of David Martin with respect to the discovery of Nytol in the crime car suggest some sort of plan between David Martin and Chantal Boudreau to point the finger of blame at Cecile Fournel. I have analysed this evidence and I agree that Mr. Martin’s evidence raises more questions than it answers. Consequently, I have not considered his evidence of finding the Nytol in the car in my analysis. His evidence does not, however, raise any questions with respect to the important points of Chantal Boudreau’s evidence. His only evidentiary contribution to the events of February 25^th was with respect to when he saw Cecile Fournel at the office and the approximate time of her leaving. He was unchallenged on these points.

ix) Ms. Fournel’s Statement to the Police

228Detective Sergeant Bickerton of the East Region of the OPP interviewed Ms. Fournel on March 9, 2009. He and Ms. Fournel had previously worked on four or five investigations together. From the outset of the interview when Ms. Fournel was told that the police were investigating the fire as an attempt murder, Ms. Fournel repeatedly expressed surprise. Ms. Fournel confirmed that she went over to Chantal Boudreau’s house with the intent of ironing things out and to talk to her to see if the young couple could sort things out, and that they had a couple of drinks. Ms. Fournel stated that she poured the drink in front of Chantal Boudreau and that they shared it. She confirms they drank wine and a bit of cooler in glasses that she had brought to the house. She denied putting anything in Chantal Boudreau’s drink. She stated that Chantal Boudreau had two and a half to three glasses of wine and some cooler and she got loaded.

229At the time of the interview, Cecile Fournel was already alert to the allegation being made that she had drugged Chantal Boudreau. Ms. Fournel stated that she believed that Ms. Boudreau had fabricated everything. The officer then told Ms. Fournel that the substances that were found in Chantal Boudreau’s system were the same substances as were found in the car that Cecile Fournel was driving that night. Over the next few minutes, as the officer assures Ms. Fournel that he is not lying to her, Ms. Fournel said at least a fifteen times that this is not possible. Ms. Fournel further said that she didn’t take medication, not over the counter medications, not sleeping pills. When asked about the pills found in the cruiser, Ms. Fournel responded, “I don’t know about any pills” and denied that the pills could be linked to her in any way. She repeated that she didn’t know anything about the pills. However, I am not satisfied that I can draw an inference from this exchange that Cecile Fournel was deliberately lying with respect to her link to the Nytol in the car. The Nytol was not specifically identified at any time during the interview.

230Cecile Fournel’s police notebooks were before the court. It appears that she recorded that she was on duty during the time of her visit to Chantal Boudreau. This is obviously untrue. Ms. Fournel was described by her colleagues as a hard working, experienced officer. Her notebook entries are no less surprising in the fact that she drank and drove in the crime car back to work. I make no further comment on this note entry or its significance.

x) Conclusion on Charge to Administer Noxious Substance s. 245(a)

231I am satisfied that the diphenhydramine found in Chantal Boudreau’s system was administered by Cecile Fournel on February 25 in a drink which she poured for Chantal Boudreau. This finding is based on: the evidence Cecile Fournel’s of the purchase of the Nytol and her assertion that she herself does not take those medications including sleeping pills; the evidence of Chantal Boudreau that she did not ingest diphenhydramine voluntarily or knowingly; the description of Chantal Boudreau’s impaired condition shortly after drinking a drink poured by Cecile Fournel which condition is consistent with taking a sedative such as diphenhydramine; the fact that Cecile Fournel had the opportunity to add the contents of Nytol gel capsules to the drink she poured; and the lab findings of diphenhydramine in Chantal Boudreau’s system. It may be that Cecile Fournel also administered benzodiazepines and it would be a reasonable inference that she did so. It is not necessary to make the finding, however, in light of the evidence about the cumulative sedative effects of diphenhydramine and alcohol and how it corresponds to Ms. Boudreau’s and Cecile Fournel’s description of Chantal Boudreau’s physical and cognitive state. In other words, it is not necessary to make a finding with respect to the source of the benzodiazepines to find that Cecile Fournel administered a noxious substance.

232I consider all of this evidence in coming to a conclusion on the first two questions of the W. (D.) analysis with respect to the charge of administering a noxious substance. I do not accept or find persuasive the exculpatory evidence advanced by the defence on the question of whether Ms. Fournel administered diphenhydramine to Ms. Boudreau on the evening of February 25^th nor does this evidence, in the context of all of the evidence, leave me in a state of uncertainty as to where the truth of the matter lies. On each point, the alternate propositions or suggestions or theories put forward by the defence are insufficiently supported by the evidence, merely speculative or in the area of inconsistencies, satisfactorily explained. The suggestion of Ms. Boudreau’s motive does not logically connect to any evidence of blameworthy conduct on the part of Ms. Boudreau.

233Turning to the third question, on an analysis of all of the evidence, I am satisfied beyond a reasonable doubt that Ms. Fournel administered diphenhydramine to Chantal Boudreau on February 25, 2009.

234Now, I must also consider the question of intent with respect to both the arson count and the count of administering a noxious substance.

xi) Law with Respect to Intent

235In R. v Burkholder (1977) 1977 ALTASCAD 8, 34 C.C.C. (2d) 214, the Alberta Court of Appeal held at paragraph 31 that on a charge that an accused administered a destructive or noxious thing to a person with intent to cause bodily harm, the Crown must establish that the substance administered by the accused was a noxious thing and that the accused intended to cause bodily harm by the administering of the substance; and that the accused at the time of administering the substance must intend to cause bodily harm. The offence is constituted by the mental element that accompanies the act of administering a substance that is noxious.

236The Crown must prove that the substance administered was noxious. Then it must prove the necessary intent. Diphenhydramine is a common medicinal substance easily available in over the counter remedies. It may be noxious if it is capable of effecting, or in the normal course of events, will effect a consequence defined in s. 245. “Circumstances may arise and which have to considered in determining whether a substance is noxious include its inherent characteristics, the quantity administered and the manner in which it was administered.” Burkholder supra at paragraph 25.

237On the basis of the evidence I am satisfied that the diphenhydramine administered by Cecile Fournel was noxious. Its inherent quality is to be a sedative. It was administered without the knowledge of Ms. Boudreau and in conjunction at least with alcohol which has a known sedative effect. We do not know the quantity administered but the effects experienced by Ms. Boudreau were the predicted effects of this drug; impairment of cognitive abilities, and drowsiness. Ms. Boudreau was so drowsy in the hours after the fire, that she was falling asleep while the others talked around her. This seems unusual in the extreme to be falling asleep, still before midnight, while firefighters are at your house putting out a fire.

238On the question of intent, I am further satisfied that Cecile Fournel administered the diphenhydramine with the intent to cause bodily harm. “Bodily harm” is defined in s. 2 of the Criminal Code as ‘any hurt or injury to a person that interferes with the health or comfort of the person that is more than merely transient or trifling in nature. Ms. Boudreau quickly became drowsy after ingesting the diphenhydramine, to such an extent that she had a problem walking. This was the evidence of Ms. Boudreau and I can also infer that it is so based on the evidence of Ms. Fournel that she walked her daughter-in-law to the bedroom. There would be no reason for Ms. Fournel to help Ms. Boudreau to the bedroom unless she was experiencing the effects of a strong dose of sedatives. In addition, I am satisfied on the facts that Ms. Boudreau lost consciousness after ingesting the diphenhydramine. I make this inference based on Ms. Fournel’s statement to Bev Mackey that by the time Ms. Fournel left the house, Chantal Boudreau was asleep and did not see her leave. Again, there is no reason, offered or suggested by Ms. Fournel why Ms. Boudreau would fall asleep so quickly before Ms. Fournel had left the house. Ms. Fournel in her statement said that Ms. Boudreau had only had two and half to three glasses of wine. Ms. Fournel, it seems, drank the same amount and was able to drive her vehicle after leaving the house. There is no doubt that Ms. Fournel intended to cause bodily harm when she administered the diphenhydramine to Chantal Boudreau.

3. Finding on Charge of Arson

239I am satisfied beyond a reasonable doubt that Ms. Fournel intentionally set a fire in Chantal Boudreau’s bedroom by applying an open flame to the contents of the closet. She brought the candles into the room knowing that Ms. Boudreau was impaired, unconscious or asleep. She was the only other person in the house. She had encouraged Ms. Boudreau to smoke in the house, an unusual occurrence. She had the opportunity to set the fire, undisturbed by anyone. There is no evidence of when she left the house. Ms. Boudreau’s evidence on this point is merely speculative. The police notebooks are unreliable and the neighbour’s observations are uncertain. Ms. Fournel demonstrated an unusual interest in the firefighter’s notes and opinions. The evidence is uncontradicted on the type and amount of damage caused by this fire.

240With respect to the count of arson, I am satisfied beyond a reasonable doubt that Cecile Fournel intentionally caused damage by fire to Chantal Boudreau’s home knowing that Chantal Boudreau was in bed in the home at the time she set the fire. The intent required in s. 433, is twofold: firstly the intent to set the fire; and secondly to do so where one knows that the property is occupied. On the basis of all of the evidence and with special attention to the opinion of Mr. Horn, I am satisfied that Ms. Fournel set the fire in the bedroom closet. That fire caused extensive damage to the bedroom and the recreation room. There was further damage on the upper level of the home directly as a result of the fire. Ms. Boudreau did not suffer physical injuries as a result of the fire. However, the intent requirement of the offence is met to the extent that Ms. Fournel knew full well that Ms. Boudreau was asleep in her bed, sedated and unconscious, when she set the fire.

241The defence argued that not only are the allegations unfounded and unsupported on the evidence but they are also improbable given the fact that Ms. Fournel did not attempt to conceal her visit to Ms. Boudreau, nor the purpose of her visit, nor the fact that she brought wine and alcohol, nor the fact that there was smoking and candles.

242They submit that an experienced criminal investigator would not be so unsophisticated in going about a plan to lace drinks and set a fire.

243However, what emerges from the evidence is that Ms. Fournel was completely pre-occupied by the custody battle and its effect on her. Not only would she lose the close frequent access to her grandchildren, but also, she had come to realize that she had lost a relationship with Ms. Boudreau, whom she had so generously supported over the past few years. She had every reason to feel betrayed and victimized by this young woman. It is clear that Ms. Fournel was a protagonist in the battle over the grandchildren and it also appears that she was the directing mind in that legal dispute.

244Ms. Boudreau was the one person who stood in the way of what mattered most to her. Ms. Fournel raised the matter at work with her colleagues in person and in emails. She developed a serious animus against Ms. Boudreau. The legal dispute was between Chantal and Evan, but Ms. Fournel had at least as strong an interest in it as Evan.

245Ms. Fournel was losing her sense of perspective. She knew that her colleague and friend, Mr. Pilon, arranged to see a grandchild in Sudbury from time to time and this would have been possible for her. She knew that Ms. Boudreau’s plan to go to Laurentian University were still in a very preliminary stage. So, to the extent that this criminal behaviour seems illogical, so does Ms. Fournel’s reaction to the custody battle. What else could have driven Ms. Fournel, who was not much of a drinker, to plan a session of drinking during working hours? Surely, this constitutes a serious lapse of judgment.

246Her reaction was so strong and the issues had inflamed such passions that when discussing them with her friend Bev Mackey, Ms. Fournel said, “I can now understand how domestic homicide could happen.” I do not consider this statement as suggesting that Ms. Fournel was explaining that she could or would commit homicide. Rather, I interpret it to mean that Ms. Fournel understood the depth and grip of the passions and emotions that accompany family breakdown. I am persuaded that Ms. Fournel’s judgment was impaired by her emotional involvement in this family conflict.

247I turn now to the issue of intent on the final count; attempt murder.

4. Charge of Attempt Murder

248The Crown submits that the charge for attempt murder is made out if there is a finding that Ms. Fournel set the fire knowing Chantal Boudreau was incapacitated.

249With respect to the count of attempt murder (s. 239 (1) (b), the mens rea for attempted murder is the specific intent to kill. (R. v. Ancio 1984 CanLII 69 (SCC), [1984] 1 S.C.R. 225). I am not satisfied that the crown has proven that Cecile Fournel had the specific intent to cause Chantal Boudreau’s death. In the absence of evidence with respect to the dose of sedative administered, one might conclude that Ms. Fournel did not intend, by either dose of diphenhydramine or the method of setting the fires, to cause Ms. Boudreau’s death. In fact, Ms. Boudreau was able to overcome or break through the sedative effects of the diphenhydramine to waken and flee the fire, which happily had not reached her. Ms. Fournel could have taken steps that more likely would have caused the death than to start a closet fire that would be blamed on Ms. Boudreau and undermine her position in the custody battle. I find that the specific intent to kill Ms. Boudreau has not been made out.

VI. Findings

250There shall be an acquittal on the charge of attempt murder. There shall be a conviction on the charge of intentionally or recklessly causing damage by fire to a dwelling house and knowing or being reckless with respect to whether the property was inhabited. There shall be a conviction on the charge of administering a noxious substance, diphenhydramine, to Chantal Boudreau, with the intent to endanger her life.

Madam Justice P.C. Hennessy

Released: March 8, 2012

COURT FILE NO.: 17167-10

DATE: 20120308

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Cecile Fournel

Defendant

REASONS FOR JUDGMENT

Hennessy J.

Released: ** March 8, 2012**

Footnotes

1. 1Chantal Boudreau was the common law spouse of Evan Palaszewski. Mr. Palaszewski was the son of Cecile Fournel.
2. 2Crime car refers to the unmarked OPP car used by Cecile Fournel