Court File and Parties

COURT FILE NO.: 10-158

DATE: 20130614

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

GIOVANNI CARTOLANO

Defendant

Counsel: Anne Tierney and Dean Ring, for the Crown Walter Fox, for the Defendant

HEARD: June 11, 12, 13, 15, 20, 21, 22, 27, 28, 29, July 3, 5, 6, 9, August 20, 21, 22, 23, 27, 28, 30, October 22, 29, 31, November 1, 2012 and February 4, 2013

REASONS FOR JUDGMENT

M.F. BROWN J.

Overview

[1] Giovanni Cartolano (“Mr. Cartolano”) is charged with two counts in the indictment:

1. Arson with disregard for human life pursuant to s. 433(a) of the Criminal Code; and,

2. Arson for a fraudulent purpose pursuant to s. 435(1) of the Criminal Code.

Mr. Cartolano entered a plea of not guilty to the two counts on the indictment and the trial proceeded before me as a judge sitting without a jury.

[2] The charges relate to a fire and explosion on December 6, 2007, at approximately 11:30 p.m. in downtown Barrie, Ontario. As a result of the fire and explosion, the historic premises formerly known as the Wellington Hotel was destroyed. It was a miracle there was no loss of human life or serious bodily injury to any person as a result. However, sadly, some of the residents of the premises lost their valued property and family pets as a result of the fire.

[3] The Wellington Hotel was located at the northwest corner of the Five Points, being Dunlop Street West and Bayfield Street in the city of Barrie. It had a municipal address of 4 Dunlop Street West in Barrie.

[4] In 2007, the Wellington Hotel was owned by Kevin Lowe, operating as Snowdale Properties. The premises was occupied on the ground level by three commercial enterprises. From east to west, those premises were the Royal Thai restaurant (the Royal Thai, the Riviera Pizza and Pasta House (the Riviera) and Vintages. The Riviera also had a portion of the second floor which included washrooms for the patrons of the restaurant and two residential units. There were also residential apartments on the third floor.

[5] The Crown’s theory is that Mr. Cartolano himself caused the fire and explosion at the Wellington Hotel. The Crown submits that on the evening of December 6, 2007, after a small group of patrons had left, after his two employees had left, and after Laverne Williams had left, Mr. Cartolano went into the basement of the Riviera, introduced gasoline into that structure and by means unknown, caused it to ignite. The Crown submits that the igniting of this gasoline resulted in the explosion and fire that destroyed the Riviera and indeed a great deal more, and placed the lives of tenants, civilians and firefighters alike in mortal danger. The Crown submits that this act of arson was committed by John Cartolano for personal gain with the intent of defrauding the insurers.

[6] The defence theory, on the other hand, is that the Crown has failed to prove beyond a reasonable doubt that it was Mr. Cartolano who was responsible for the fire and explosion. The defence submits that the Crown’s case implicating Mr. Cartolano is based entirely on circumstantial evidence and the evidence of Ms. Laverne Williams who testified that Mr. Cartolano had confessed to her that he used gas in the explosion of the Riviera.

[7] The defence submits that the evidence of Ms. Williams is entirely unworthy of belief and that it would be dangerous for me to rely on her evidence given, among other things, (1) her criminal record for fraud and other crimes of dishonesty; (2) the fact that Ms. Williams was initially charged with insurance fraud in relation to the fire and explosion at the Wellington Hotel and negotiated a plea agreement with the Crown to plead guilty to attempted fraud of the insurance company for a suspended sentence and probation and have another fraud charge in North York she was facing, regarding a fraud committed upon her mother, withdrawn in exchange for her testifying for the Crown in these proceedings; and (3) the inconsistent statements of Ms. Williams to the police and her evidence at trial regarding a variety of issues, especially in regard to her version of events about what Mr. Cartolano told her about starting the fire.

[8] In short, the defence submits, the Crown has failed to prove the guilt of Mr. Cartolano on either of the two counts on the indictment beyond a reasonable doubt.

Factual Background

[9] On Thursday December 6, 2007, at 11:32 p.m., the Barrie Fire Department received an alarm for a fire and possible explosion at the Royal Thai located at 4 Dunlop Street West in Barrie. They arrived to find that all of the glass had blown out of the windows in a southerly direction across Dunlop Street. Debris was strewn across Dunlop Street West, including bar stools from the Riviera. The outer wall of the building facing Dunlop Street West was buckled.

[10] David LeDrew, a tenant living in apartment 303, was home and in bed at the time of the explosion. He heard a loud bang and felt the building shake. By the time he was able to escape with his family down the stairs that led to the foyer shared by the tenants of the building and the Riviera and the Royal Thai, he was unable to see the last ten steps for the dust and dirt. He observed the street to be filled with broken glass and bar stools. He and his family, like the other tenants of the building, lost everything in the ensuing blaze, including their pets.

[11] Firefighters entered the Royal Thai by breaking the glass door. The floor appeared to have buckled. There was heavy smoke coming from the basement to the stairs. The intensity of the heat from the basement was observed to be increasing rapidly. There was smoke coming from the holes and the cracks in the floor.

[12] Firefighters entering Vintages and the Riviera observed that the wall between the two businesses was buckled, with holes. Flames were also observed in the basement of the Riviera.

[13] The Office of the Fire Marshall investigated the explosion under their legislative authority. The investigation did not commence as an arson investigation. However, investigation by the Office of the Fire Marshall determined that there was an accelerant located in the basement of the Riviera in the form of gasoline. The fire was determined by the Office of the Fire Marshall to be an arson.

[14] After the explosion on December 6, 2007, the owner of the Riviera was said to be Laverne Williams. She had purportedly purchased the restaurant from the accused, Giovanni (John) Cartolano, shortly before.

[15] It is undisputed that Mr. Cartolano was the last person in the Riviera before the explosion. Mr. Cartolano held himself out to police, insurance investigators, and all parties as the source of information on the business operations of the Riviera. Although he said he had recently sold the restaurant, he stood to gain from the insurance proceeds as holding a “vendor takeback mortgage.”

[16] On February 17, 2008, after a three hour interview with police, Laverne Williams told the police that Mr. Cartolano had confessed to her that he had blown up the Riviera by pouring gasoline or oil in the basement. That gasoline had been found in the basement of the Riviera, and that it was identified as the origin of the explosion and subsequent fire by the Office of the Fire Marshall was not yet known.

[17] On February 17, 2008, Laverne Williams also told police that Mr. Cartolano told her to let him handle the insurance company. Laverne Williams said that Mr. Cartolano said they were “bonded” and threatened the safety of herself and family if she did not follow his lead.

[18] As of December 6, 2007, the Riviera was purportedly insured by Laverne Williams, through broker Aim Insurance to Gore Insurance for $300,000.00.

[19] The Agreement of Purchase and Sale of the Riviera does not mirror a typical commercial transaction. There were different versions of agreements and financial arrangements proffered. One consistent aspect, however, was that Laverne Williams had not herself provided any monies for the purchase. Whether Mr. Cartolano ever received any monies for the purchase is in dispute. What is not in dispute is that from the purported sale, Mr. Cartolano held a major financial interest as the “mortgagor”.

[20] Following a police investigation, Mr. Cartolano was charged with the two counts that are before the court.

Count No. 1 – Arson with Disregard for Human Life

[21] Mr. Cartolano is charged with arson with disregard for human life.

[22] For me to find Mr. Cartolano guilty of arson with disregard for human life, Crown counsel must prove each of the following essential elements beyond a reasonable doubt:

(i) That Mr. Cartolano caused damage to property by fire or explosion; and,

(ii) That Mr. Cartolano caused the damage intentionally or recklessly; and,

(iii) That Mr. Cartolano knew or was reckless whether the property was occupied.

I will deal with each essential element separately.

(i) Did Mr. Cartolano cause damage to property by fire or explosion?

[23] One of the more important witnesses for the Crown in proving this essential element of the case was Laverne Williams. As noted previously, the evidence of Ms. Williams directly implicates Mr. Cartolano as the person who set the fire by using gas. The following is a brief review of her evidence.

[24] Laverne Williams testified that she was born in Halifax, Nova Scotia on September 14, 1967. She grew up in East Preston, N.S., as well as in Toronto.

[25] She has had a variety of jobs over the years. She was married, and then later separated from her husband. She has three children, aged 25, 18 and 14.

[26] Ms. Williams has a criminal record. In examination in chief, she admitted that in 1990 she was convicted of theft under and received a suspended sentence and one year probation. In 1997, she was again convicted of theft under and received a suspended sentence and two years probation. In 1998, she was convicted of possession of instruments for forgery; fraud under $5,000 and fraud over $5,000 and received a 60 day conditional sentence, probation for 12 months and a restitution order of $11,000.

[27] Subsequently, in the course of her cross examination, it was not contested by counsel that on January 11, 2010, she entered a plea of guilty to attempted fraud and received a suspended sentence and probation.

[28] Ms. Williams met Giovanni Cartolano in 2006 at a banquet hall in Toronto. Their first date occurred at the end of 2006. She continued seeing him in 2007. They would talk over the phone just about every day. They never went out much on dates other than to the Riviera. Ms. Williams became involved in working as a hostess at the Riviera in the summer of 2007. Prior to that, she and Mr. Cartolano spent time together. Their dates usually took place at the restaurant or the banquet hall but not at theatres or things like that.

[29] Between the end of 2006 and when Ms. Williams began working as a hostess in the summer of 2007, Mr. Cartolano had never discussed the restaurant being for sale. Prior to beginning work as a hostess, Ms. Williams had gone to the restaurant with other members of her family. Ms. Williams’ relationship with her mother prior to starting work as a hostess in 2007 was fair. She took her mother to the restaurant once or twice and her children attended as well.

[30] She moved out of her condominium in Mississauga in the fall of 2007 to relocate to Barrie. She did not have any restaurant experience when she took the job at the Riviera. Prior to beginning work as a hostess, Mr. Cartolano and Ms. Williams’ relationship was that they were dating. After the fall, going in to the winter, they began making plans to buy a home. Ms. Williams’ youngest child, Latia, came to join her in Barrie. At point Ms. Williams was staying in the apartment above the restaurant. Mr. Cartolano’s son, Chris, was also living there.

[31] While she had been working as a hostess, Mr. Cartolano would just give her money when she was done. There was no set salary. Mr. Cartolano paid her expenses.

[32] Ms. Williams’ impression of the restaurant when she started working was that business was slow. Her vision was to become the owner. She began having that vision when Mr. Cartolano spoke to her about purchasing the restaurant. She had previously envisioned herself as a restaurant owner. Her cooking attracted her to the idea. She did not think about the financial side of things. The idea of Ms. Williams purchasing the restaurant was built over time. Mr. Cartolano told her about his plan to go to Windsor and that he wanted to sell the Barrie restaurant. Ms. Williams discussed purchasing the restaurant together with her mother on several occasions. According to Ms. Williams, her mother got involved with her to purchase the restaurant.

[33] The plan initially was for Ms. Williams’ mother to get a loan for the funds and then they would make instalments. The plan was to get the loan from a TD Bank on Islington near Rexdale, as Mr. Cartolano knew someone at that bank. At that time her mother was living in Scarborough working for Canpar. Ms. Williams was not sure how big her income was. Of the three of them, Ms. Williams’ impression was that her mother was doing the best financially.

[34] According to Ms. Williams, at a certain point, she came to the understanding that a loan had been received for the restaurant. Again, according to Ms. Williams, Mr. Cartolano told her that her mother had been approved for a loan with TD. On December 6, 2007, when there was the explosion, Ms. Williams believes that all the paperwork had been concluded and that she and her mother were owners. Mr. Cartolano took charge of the paperwork for the sale of the business.

[35] Her understanding was that she was purchasing the Riviera for $285,000. There was a clause in the agreement of purchase and sale concerning a $45,000 deposit. Ms. Williams was advised that $45,000 was paid on her behalf as a deposit for her purchase of the restaurant. According to Ms. Williams, Mr. Cartolano told her that it had been paid in November. He told her that it came from her mother’s loan.

[36] There is another clause in the agreement of purchase and sale that concerned a sum of $55,000 being paid within 90 days of the date of completion. Ms. Williams remembered the clause and that this amount was going to be paid through her mother’s bank loan. Mr. Cartolano and Ms. Williams had discussed it. She could not remember when they had the discussion. Ms. Williams understood the date of completion to be the signing of the lease agreement with Mr. Cartolano.

[37] In November 2007, Ms. Williams was living in Barrie. She moved back to Mississauga near the end of November. She did store some of her belongings in the basement area of the Riviera. The plan was that she would then move them to a home that Mr. Cartolano was going to purchase. She did move her belongings out of the basement however, as she was spending Christmas with her kids and her daughter didn’t have any decent furniture so they used her furniture. At that point, the plans to move into a house with Mr. Cartolano had fallen through.

[38] According to Ms. Williams, she did not discuss the bank loan with her mother after she had a conversation with Mr. Cartolano about having received $45,000 for the purchase of the restaurant. Mr. Cartolano never discussed the three cheques given to him by Ms. Williams’ mother. Ms. Williams did not consider whether or not she had an obligation to pay the $45,000 back to anyone. With respect to the $55,000 payment, her understanding was that this money would come from the loan her mother had taken out. The basis for this was a conversation she had with Mr. Cartolano.

[39] On December 6, 2007, Ms. Williams considered herself to be the owner of the Riviera. She thought everything was in order. She owed money on the purchase still – the balance of the restaurant. She thought the amount was about $280,000. The arrangement was that she would pay it back in monthly instalments. These arrangements were made between her and Mr. Cartolano. The money would be generated through the restaurant or if need be through personal money. Ms. Williams had money in the bank.

[40] On December 6, 2007, Ms. Williams was at the Riviera. She does not remember what time she arrived or who was in the restaurant when she arrived. There was a Christmas party at the restaurant that evening between 7:00 and 8:00 p.m. Ms. Williams left the restaurant shortly after Andrea Jamieson left at 10:00 p.m. Mr. Cartolano was the only one left in the restaurant. She went home to Mississauga. She drove her daughter’s friend’s car.

[41] Ms. Williams first learned of the explosion on December 7, 2007. She learned when Mr. Cartolano came to her house and drove her to Barrie. It was just the two of them in the car. When they got to Barrie they went to Sue’s. She could not remember why they went there first. Ms. Williams attended at the site of the explosion on December 7 with Sue. Ms. Williams could not recall Mr. Cartolano being with them at that time.

[42] After December 6, 2007, Ms. Williams continued to have some contact with Mr. Cartolano. She stayed at a place in Barrie with Mr. Cartolano on and off for about a month. Ms. Williams stated that a female lawyer owned it. In the days after the explosion, Ms. Williams’ relationship with Mr. Cartolano was distant. This continued to remain somewhat the same in the weeks that followed. Ms. Williams met Mr. Cartolano in a café in the Jane and Sheppard area of Toronto to discuss the Riviera. This was the same café in which they’d had earlier meetings. The meeting was in early 2008.

[43] At the meeting, there were two other gentlemen present. She assumed that the meeting with the two gentlemen at the café was for the purpose of getting the insurance on the Riviera.

[44] According to Ms. Williams, after Ms. Williams and Mr. Cartolano met with the two gentlemen, the gentlemen left, and Ms. Williams and Mr. Cartolano stayed at the café on their own and discussed about what happened to the Riviera. Mr. Cartolano told her that he was responsible and that she had to follow his lead as he knew what he was doing. He told her that it was gas that he used, and that she would be followed and watched by the cops so she had to follow his lead. Mr. Cartolano threatened her family, telling her that he knew where her mother and children lived. At that time she did listen to him.

[45] On February 17, 2008, Ms. Williams had an interview with the Barrie police that lasted several hours. In the course of that interview she was arrested for fraud over $5,000 in relation to an alleged insurance fraud regarding the fire at the Riviera. It was during that interview she told the police that Mr. Cartolano had told her that he was responsible for the fire at the Riviera.

Vetrovec Instruction

[46] In the circumstances of this case, I am of the view that in assessing the evidence of Laverne Williams, I must instruct myself as the trier of fact pursuant to the principles set out in R. v. Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811 and the cases that have followed it.

[47] The central purpose of a Vetrovec instruction is to alert the trier of fact about the danger of relying upon the testimony of unsavoury witnesses and to explain the reasons that underpin the need for special scrutiny of their testimony: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 11.

[48] Four elements guide trial judges in the composition of Vetrovec warnings about the testimony of potentially untrustworthy witnesses:

i. identification of the witness whose evidence requires special scrutiny;

ii. explanation of the reasons why the evidence is subject to special scrutiny;

iii. a caution that it is dangerous to convict on unconfirmed evidence of this kind, though the trier of fact is entitled to do so if they are satisfied that the evidence is true; and

iv. the trier of fact, in determining the veracity of the suspect evidence, should look for evidence from another source tending to show that the untrustworthy witness is telling the truth.

Khela at para. 37; R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328, at paras. 17-19; R. v. Sauvé (2004), 2004 CanLII 9054 (ON CA), 182 C.C.C. (3d) 321 (Ont. C.A.), at para. 82.

[49] In some cases, a relevant factor for a trial judge to consider in determining whether to give a Vetrovec warning in connection with the testimony of a particular witness is preferential treatment given to the witness in connection with his or her involvement in the offence. That the witness has changed positions from co-accused to prosecution witness, and the circumstances in which that change came about, for example by entry of a plea with prosecutorial consent to a lesser offence, may favour a Vetrovec warning.

[50] To be confirmatory of the testimony of a witness whose evidence is subject to a Vetrovec caution, the evidence must be independent of the Vetrovec witness. Said in another way, confirmatory evidence must come from some source other than the tainted witness. To be confirmatory, this independent evidence need not implicate the accused. But the independent evidence must be capable of restoring the faith of the trier of fact in relevant aspects of the tainted witness' account: Khela at para. 41; Kehler at paras. 12 and 16. Where the only issue is whether the accused committed the offence, confirmatory evidence should provide comfort for the trier of fact that the tainted witness is telling the truth in that regard: Khela at para. 43.

[51] As the Supreme Court of Canada has held: the more important the witness, the higher the duty of the judge to be cautious in accepting the evidence of such a person. The Supreme Court of Canada in Khela at para. 35 cited with approval a commentary by Marc Rosenberg (now Rosenberg J.A.) initially cited by the Supreme Court of Canada in R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237 on Vetrovec and its progeny:

The judge should first in an objective way determine whether there is a reason to suspect the credibility of the witness according to the traditional means by which such determinations are made. This would include a review of the evidence to determine whether there are factors which have properly led the courts to be wary of accepting a witness's evidence. Factors might include involvement of criminal activities, a motive to lie by reason of connection to the crime or to the authorities, unexplained delay in coming forward with the story, providing different accounts on other occasions, lies told under oath, and similar considerations. It is not then whether the trial judge personally finds the witness trustworthy but whether there are factors which experience teaches that the witness's story be approached with caution. Second, the trial judge must assess the importance of the witness to the Crown's case. If the witness plays a relatively minor role in the proof of guilt it is probably unnecessary to burden the jury with a special caution and then review the confirmatory evidence. However, the more important the witness the greater the duty on the judge to give the caution. At some point, as where the witness plays a central role in the proof of guilt, the warning is mandatory. This, in my view, flows from the duty imposed on the trial judge in criminal cases to review the evidence and relate the evidence to the issues.

[52] Individual items of confirmatory evidence need not implicate the accused. As Dickson J. stated in Vetrovec at p. 826:

The reason for requiring corroboration is that we believe the witness has good reason to lie. We therefore want some other piece of evidence which tends to convince us that he is telling the truth. Evidence which implicates the accused does indeed serve to accomplish that purpose but it cannot be said that this is the only sort of evidence which will accredit the accomplice.

[53] When looked at in the context of the case as a whole, the items of confirmatory evidence should give comfort to the judge that the witness can be trusted in his/her assertion that the accused is the person who committed the offence. As stated in Khela the attribute of independence defines the kind of evidence that can provide comfort that the witness is telling the truth. When the issue is identification and "when looked at in the context of the case as a whole, the items of confirmatory evidence should give comfort to the jury that the witness can be trusted in his or her assertion that the accused is the person who committed the offence.": Khela at para. 42

[54] In this case, the evidence of Laverne Williams requires special scrutiny. To begin with, Laverne Williams has a criminal record. In 1990, she was convicted of theft under and received a suspended sentence and one year probation. In 1997, she was again convicted of theft under and received a suspended sentence and two years probation. In 1998, she was convicted of possession of instruments for forgery; fraud under $5,000 and fraud over $5,000 and received a 60 day conditional sentence, probation for 12 months and a restitution order of $11,000. In January 2010, she was convicted of attempted fraud and given a suspended sentence and probation.

[55] In addition, Laverne Williams has a motivation to lie. Pursuant to a plea agreement set out in Exhibit 53, Ms. Williams agreed to accept a plea of guilty to attempted fraud of the insurance company after the fire and explosion at the Riviera. She received, as noted previously, a suspended sentence and probation on January 11, 2010. In addition, that agreement provided, among other things, that in exchange for her testimony in this case, the charges of fraud in North York in relation to her mother would be withdrawn.

[56] There also were a number of inconsistencies in the testimony of Ms. Williams and previous statements she had given to the Barrie Police about a variety of issues, including what Mr. Cartolano said to her about how the fire was started; what substance was used to start the fire; and when Mr. Cartolano told her all of this.

[57] As well, Ms. Williams was not candid in certain aspects of her testimony in this trial about her involvement with the alleged fraud against her mother or her involvement in the allegations of insurance fraud regarding the fire at the Riviera. Indeed she testified that although she entered a guilty plea to attempted fraud, she did not think she was guilty of fraud because she never collected any money from the insurance.

[58] Finally, the evidence of Ms. Williams plays an important role in this case. Her evidence directly implicates Mr. Cartolano in the starting of the fire at the Riviera.

[59] In light of all of these circumstances, there is a good reason to look at Ms. Williams’ evidence with the greatest care and caution. I accept that I am entitled to rely on Ms. Williams’ evidence even if it is not confirmed by another witness or other evidence, but it is dangerous for me to do so. Accordingly, I need to look for some confirmation of Laverne Williams’ evidence from somebody or something other than Laverne Williams before I rely upon her evidence in deciding whether Crown counsel has proven the case against Mr. Cartolano beyond a reasonable doubt. To be confirmatory, the testimony of another witness or witnesses or other evidence should help restore my faith in relevant parts of Laverne Williams’ evidence.

[60] Before I embark upon a review of any confirmatory evidence, I think it would be helpful to start with a more detailed review of some of the more significant aspects of Ms. Williams’ evidence on a variety of issues. The first issue deals with what Mr. Cartolano told her about the origin of the fire.

(a) Origin of Fire

[61] Ms. Williams testified in examination-in-chief at this trial that in early 2008 after the fire in the Riviera on December 6, 2007, she met Mr. Cartolano at a café in Toronto. He told her he was responsible for the fire. He said he knew what he was doing. He told her it was gas that he used and that she would be followed and watched by the police so she had to follow his lead. According to Ms. Williams’ testimony, he also threatened her and her family.

[62] However, in her various statements to the police, there were a number of inconsistencies with that version of events.

[63] Ms. Williams gave a statement to the police on February 17, 2008, which lasted several hours. In the course of her statement to the Barrie Police, Ms. Williams originally said the following in response to questions asked of her by the police:

Q: Why would this building burn down? Why would someone burn down the Riviera?

A: I actually thought it was a gas problem, that’s what they said so, that’s what I thought had happened. I didn’t know it was arson.

[64] She later told the officer that she couldn’t believe that Mr. Cartolano did this. Later still she told the officer that she assumed when she left the restaurant he blew up the restaurant because he was there when she left and she found out he had been taking some of his stuff to Sue’s place. Later the following exchange took place between the police officer and Ms. Williams:

Q: Do you think John did it or do you know John did it?

A: I know John did it.

Q: How do you know John did it?

A: Cuz in so many ways he took me.

[65] Again at a later time, the following exchange took place:

Q: We’re here today to find out how this fire was set, okay?

A: I don’t know how he set it….but I do know from him when he picked me up the next day, he told me my restaurant was gone. He told me there was a fire and like, you know, he was happy because nobody got hurt. And when he told me he was happy that nobody got hurt, he said, God must’ve blessed him or done him a favour.

[66] At yet a later time, Ms. Williams said to the police “When I left he didn’t say, I’m gonna light a fire, he did not. So I can’t say John actually lit the fire because I wasn’t there. I know he had a plan.”

Q: There’s more to it and I need to know more.

A: I don’t know how he did it, I wasn’t there, like I said, I left and when I did leave he was the only one there. Now, how he went about it, I honestly and truly, Detective Carleton, I don’t know.

Q: What did you – what did he say to you the next day when he picked you up?

A: That my restaurant had blown up, we had to go to Barrie. John said, his son got in touch with him and told him there was fire up there and that we had to go to Barrie. And he said to me, no one was hurt because I guess the residents that lived upstairs. And from there on from there to Barrie I was just sort of numb and dumbfounded that it had happened, worst after I’d seen it. So, I’m telling you the truth, how he did it, I honestly don’t know other than fire.

[67] Ultimately, Ms. Williams directly implicated Mr. Cartolano with the following exchange with police:

Q: What is that information you know?

A: After the, it wasn’t right after, it wasn’t the next day when he picked me up, a couple of days after because I stay in Mississauga and he stays with his son. He asked me if he could use my car and I said, yes. So, I had to take my car to him. When I took my car to him, we went to, um, a café where he goes all the time on Jane and Sheppard. It’s called…So he told me to come inside and have a coffee with him and I did, and I, when I was inside he knows the owner. When I was inside he told me that he used oil or gas or something, um, and that he blew up my restaurant and he’s telling me because it bonded us.

(b) Timing of the Statement by Mr. Cartolano

[68] There were also inconsistencies in Ms. Williams’ testimony and her statements to the police about the timing of when this conversation with Mr. Cartolano actually occurred. For example, she testified at trial that the meeting with Mr. Cartolano when he told her he was responsible for the fire was in early January 2008. However, in her statement to the police, Ms. Williams originally told them that conversation occurred a couple of days after the fire.

[69] As a result of her first conversation with the police, Ms. Williams was arrested for fraud over $5,000 regarding insurance fraud in relation to these events. She was then taken down to the cells in the police station. The police officer continued interviewing people in the course of his investigation that day and as a result of that became aware that Ms. Williams and Mr. Cartolano had come back to the City of Barrie right after the fire to stay.

[70] The police then brought Ms. Williams up from the cells for more questioning and asked her why she had not told them she had stayed together with Mr. Cartolano for about a month in a basement apartment in Barrie right after the fire. Ms. Williams answered as follows:

A: Cuz I forgot, like, my head was all over the place, Detective. I honestly and truly just forgot but I did stay there for – she allowed, um, us to stay there for a month. As a matter of fact when I stayed there for a month which would’ve been ‘til, um, just after Christmas time, ‘cause I did Christmas in Mississauga with my kids when um, John told me about what he did, it wasn’t right up to ah, two, three days after, it was after I left Barrie. Like, I had stayed here for a month, it was a basement apartment. It wasn’t until after I left Barrie, I remembered that he had told me that in the conversation in the café.

[71] The police officer then had the following exchange with Ms. Williams:

Q: So, was it three of four days after the fire that he told you when he did or was it about a month after the fire?

A: It was after it, it was more than a month after because it was after I left from staying on Rose’s, um, basement apartment.

(c) Substances used by Mr. Cartolano in the fire

[72] Ms. Williams also gave a variety of versions of what Mr. Cartolano said he used in setting fire to the Riviera. In examination-in-chief, Ms. Williams said Mr. Cartolano told her he used gas to start the fire.

[73] However, in her statement to the police she gave different versions of this. Originally in her statement to the police, Ms. Williams said Mr. Cartolano said he used oil or gas or something. When cross-examined about this, Ms. Williams said she thought gas or oil was the same thing.

[74] Later in her statement to the police when asked by the police about what exactly Mr. Cartolano said about how he got rid of the restaurant, Ms. Williams said, “By using oil”.

[75] The police officer then said the following:

Q: What did he do?

A: He didn’t go into details to tell me how he used oil but he said, he said it was in the basement.

[76] Later in her statement there is the following exchange with the police:

Q: Okay, what’s that mean, he put a fire in the restaurant?

A: He blew the restaurant up, light fire in the basement he had set in the basement.

Q: How?

A: With oil or something, oil or gas or liquid.

(d) Statements made by the police to Ms. Williams

[77] I think it is also significant in assessing Ms. Williams’ truthfulness to be mindful of how the incremental disclosure of her statement to the police ultimately implicating Mr. Cartolano directly in starting the fire came about. There were a number of statements made by the police to Ms. Williams that may well have had an impact on her credibility. In saying this, I am not being critical of the police. They were doing their jobs interviewing an individual who they thought was implicated in the fire at the Riviera in circumstances where at the time they had only circumstantial evidence as to who may be responsible for the fire.

[78] In the course of the interview with Ms. Williams, and before she directly implicates Mr. Cartolano by saying he told her he was responsible for the fire, the police made the following statements to Ms. Williams in the course of their three hour interview:

(i) Who has the possibility to take the fall for this Laverne, do I want to see that happen or do I want to try and help you?

(ii) I’m trying to help you as much as I can but this isn’t probation stuff, right?

(iii) This is long, this is long jail time, that’s why I’m trying to say, I’ll help you out, right?

(iv) And the truth is going is going to come out, it’s either gonna come out in this room or it’s gonna come out in that room (referring to the room Mr. Cartolano was in).

(v) Like I said a couple of minutes ago, there’s leaders and there’s followers, should the followers be swept along too? No. Is that the case here? It might be. Help yourself, what happened here?

(vi) But something happened here, something more happened here than what you’re saying and I know that my partner knows that and you know that. So, let’s wipe this clean, let’s get this out in the open and let’s see what happens. Okay, let me see if, if I can help you out because if not, things don’t look good ‘cause Laverne Williams who’s been done up for, for numerous fraud related incidents, owned the Riviera that burnt down, okay.

(vii) So why believe him (referring to Mr. Cartolano) over you? I’ve talked to officers who’ve talked to John.

(viii) There’s more to it and I need to know the more.

(ix) So can you prove that John did this?

(x) So, once again, John is in there talking to other officers and back to Laverne.

(xi) I think Laverne, Laverne has something to gain from this, um, you know, you’ve told me he has a plan for the restaurant, your restaurant goes up in flames the next day, he picked you up, he alludes to the fact that, you know, God is looking out for me, so on and so forth. You know more here, Laverne.

(xii) Laverne, we both know what happened, you just need to say it.

[79] In addition to the above-noted inconsistencies, mention needs also to be made of Ms. Williams’ testimony before me about her plea agreement which, as noted previously, was marked as Exhibit 53. There was no issue between counsel that the synopsis set out on the first page of Exhibit 53 were the facts that were read in on the guilty plea. Also, Ms. Williams was represented by counsel at the time. There was a plea inquiry conducted.

[80] Notwithstanding that, she testified before me at this trial that she didn’t feel she was guilty of the attempted insurance fraud but she entered a guilty plea to it because of certain discussions she had with her lawyer.

[81] The last paragraph of that synopsis set out at page one of Exhibit 53, which was signed by Laverne Williams as being true, acknowledges that Laverne Williams was aware that Mr. Cartolano obtained blank cheques from her mother, Lillian Williams, and cashed those cheques in amounts far exceeding the amounts approved by Lillian Williams.

[82] However, Ms. Laverne Williams testified before me at trial that there was no fraud regarding the monies received from her mother, Lillian Williams. She testified that her mother got a loan from the bank and used $45,000 of that loan as part of the purchase of the restaurant. Not only is that evidence in direct contradiction to that of her mother, Lillian Williams, it is inconsistent with the above-noted facts set out in the synopsis on page one of Exhibit 53.

Confirmatory Evidence

[83] As noted previously, I may believe the evidence of Ms. Williams, if I find it trustworthy, even if no one or nothing else confirms it. However, in this case, there is some evidence which may be capable of confirming or supporting Laverne Williams’ testimony. For example, she testified that Mr. Cartolano told her that he had used gas in the explosion of the restaurant. The evidence of the Crown’s expert, Mr. Evenden was that the explosion originated in the basement of the Riviera and was caused by the intentional introduction of a volatile ignitable liquid, being gasoline.

[84] As well, there is other circumstantial evidence implicating Mr. Cartolano as the person who set the fire which is capable of confirming Laverne Williams’ evidence. The following are such examples:

(i) There is evidence of motive in this case. Mr. Cartolano was in financial difficulty. With business at the Riviera declining in 2006 and 2007, Mr. Cartolano sought to divest himself of the Riviera by listing it for sale in the formal commercial real estate market. He was not successful. The Riviera and Mr. Cartolano continued to struggle financially. In November 2007, Mr. Cartolano acted to formalize the purported sale of the Riviera to Laverne Williams creating an Agreement of Purchase and Sale, organizing the details and mechanics of that sale and guiding Laverne Williams through it. Laverne Williams was to be indebted to Mr. Cartolano for an outstanding $55,000 deposit and a $180,000 mortgage. Mr. Cartolano arranged for the insuring of Ms. Williams’ new business for $300,000 ensuring his own stake and interest as a mortgage holder in any insurance proceeds.

(ii) There was evidence that Mr. Cartolano had the opportunity to commit the fire. Mr. Cartolano was the last person to leave the Riviera on December 6, 2007. Ms. Williams testified that she left after 10:00 p.m. Ms. Williams testified that when she left the restaurant, Mr. Cartolano told her he would take care of everything.

(iii) Andrea Jamieson testified that after work on December 6, 2007, she socialized with Laverne until she was picked up with her brother. She said that she saw Mr. Cartolano take garbage out the back door, as well as saw him take the computer out the back door. Mr. Cartolano and Laverne Williams were at the restaurant when she left.

(iv) Mr. Cartolano had Suzanne Galley’s minivan on December 6, 2007. She testified that he borrowed it to move things. He admitted to driving it. Jake Meder testified that after hearing a loud bang and feeling a vibration, he looked out the window onto the alleyway behind the Riviera and Stephenson’s Jewellers, and saw a man at the far side of a mini-van. It was a standard mini-van. He didn’t remember the colour. Mr. Meder said the man walked calmly to the driver’s side, got in and drove calmly away. He had an impression that the man was “older” but did not see any distinguishing features.

(v) A short time before the fire, Lerry Silvea observed Mr. Cartolano and Ms. Williams removing Rubbermaids, pictures, a television and expensive furniture from the Riviera and loading it in a van.

[85] A review of this potentially confirmatory evidence is necessary to determine whether it confirms or supports Ms. Williams’ testimony and how that affects whether or how much I will believe of or rely upon her testimony in deciding this case.

(a) Expert Evidence

(i) Scott Evenden

[86] The Crown called Scott Evenden of the Office of the Fire Marshall in Ontario as an expert. His expertise was challenged by the defence, but I indicated after a voir dire on the matter, that he was qualified as an expert to give opinion evidence in the cause, origins and circumstances of fires and explosions. I indicated that I would give further reasons for this conclusion.

[87] There is no doubt that Mr. Evenden is qualified to give expert opinion evidence in the cause, origins and circumstances of fires and explosions. His curriculum vitae marked as Exhibit 64 attests to his background and experience in that area of expertise. He was a fire investigator with the Office of the Fire Marshall from July 2003 to June 2008. From June 2008 to September 2008, he was Acting Fire Investigations Coordinator. From September 2008 to the present, he has been Fire Investigations Coordinator with the Office of the Fire Marshall.

[88] A party who tenders a witness as an expert is required to demonstrate that the witness has acquired a special knowledge of a particular topic by formal study, practical experience, or both, which extends beyond that of the trier of fact. The competence of the witness to give expert evidence, or be qualified as an expert, does not depend upon how the skill was acquired, only that it has been gained. The expert must be one who is shown to have acquired special or peculiar knowledge through study or experience about the matters upon which he or she undertakes to testify: R v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9.

[89] Mr. Evenden has certainly demonstrated that he has acquired a special knowledge of his field of expertise by both formal study and practical experience that extends beyond that of the trier of fact. As such he is qualified to give opinion evidence as an expert. Any deficiencies in his expertise that do not render him incompetent to give expert opinion evidence go to the weight of his evidence.

[90] Mr. Evenden’s expert opinion as set out in his conclusion at paragraph 65 of his report was that he classified the fire at the Riviera as incendiary. It was his opinion that a volatile ignitable liquid identified as gasoline was intentionally applied to the floor area within the basement of the Riviera.

[91] The gasoline vapour was then ignited by a competent ignition source causing a low order explosion to occur, subsequently causing post explosion fire damage to the structure.

[92] The Crown relies on this evidence as confirmation of the testimony of Ms. Williams regarding what she was told by Mr. Cartolano. Namely, that he had used gas in the explosion of the restaurant. The Crown submits that the expert opinion of Mr. Evenden is particularly important because at the time that Laverne Williams made her statement to the Barrie Police on February 17, 2008, the findings of the Fire Marshall’s Office had not been made public and it was also at a time when the public perception was that the fire and explosion began at the Royal Thai. The Crown submits that at no time in the interview did the police tell Ms. Williams how the explosion and fire began. Nor did they even indicate the source was gasoline. The Crown submits that such knowledge could only have come from Mr. Cartolano.

[93] It was the opinion of Mr. Evenden that the area of origin of the explosion was to the interior of the Riviera basement. This opinion is supported, in the view of Mr. Evenden, by the overall scene examination, excavation and the collected data as well as analysis of explosion/fire patterns and exhibits examined by the Centre of Forensic Sciences.

[94] The area of origin opinion is supported, in Mr. Evenden’s view, by exterior fire patterns. The south wall showed a pushing effect and a total displacement from its original position. The debris field consisted of items displaced from within the area of the Riviera including glass fragments and furniture. In Mr. Evenden’s opinion, the pushing effect and total displacement is indicative of the outward direction of the positive pressure phase of the explosion within the structure.

[95] The area of origin opinion is also supported, in Mr. Evenden’s view, by the interior examination of displaced interior walls within Vintages and the firefighter statements providing evidence of the displaced main floor of the Riviera, indicative of the positive pressure phase of the explosion and further indicating the area of origin within the basement of the Riviera. According to Mr. Evenden, the displacement analysis conducted by him provided supportive evidence that the explosion emanated from the interior of the Riviera.

[96] In addition, the area of origin opinion is also supported, in Mr. Evenden’s opinion, by the scene examination and excavation of the basement area of the Royal Thai and the Riviera. No volatile ignitable liquid was recovered within the area of the Royal Thai. Excavation of the fire debris within the Riviera revealed the presence of gasoline. In his examination of the basement of the Riviera, Mr. Evenden uncovered a substance he was suspicious of being gasoline by smell. This discovery was made under collapsed debris. Mr. Mike Harrison, a chemist with the Centre for Forensic Sciences was able to distil liquid gasoline from the particle board submitted by Mr. Evenden. Mr. Harrison confirmed that gasoline is a volatile ignitable liquid that readily evaporates, causing vapours that could cause an explosion if ignited. Gasoline was present in other samples submitted. All samples, with the exception of one being at the threshold of the basement door between the Riviera and the Royal Thai, were located in the Riviera basement. In Mr. Evenden’s opinion, the presence of gasoline within the area of the basement provided the necessary element of fuel required to produce the effects of an explosion.

[97] With regard to the spread of the fire that followed the explosion, it was Mr. Evenden’s opinion that the thermal effects occurring from the explosion and the significant amount of exposed combustibles, as well as the residual fuel vapour, resulted in the fire patterns noted.

[98] As to an ignition source, Mr. Evenden was of the opinion that there were several competent ignition sources considered. Within the basement area was a sump pump motor located next to the west wall. With regards to the structure being occupied prior to the incident, the electrical system, as well as electrical appliances was also hypothesized. The accidental and intentional application of an open flame was also hypothesized with regards to a competent ignition source. In Mr. Evenden’s opinion, due to the extensive damage caused by the explosion not all of the competent ignition sources could be listed in the context of his report.

[99] Due to the degree of destruction of the scene, it was not possible for Mr. Evenden to conclusively determine and isolate a single competent source of ignition over another. The near total destruction of the structure eliminated the possibility of any examination of electrical wiring, components or appliances, as well as various other competent ignition sources not articulated in the context of his report.

[100] It was not possible for Mr. Evenden to make any comment with regards to the possibility of intentional or accidental ignition by means of an open flame based on the excavation and examination of the scene. Due to the near total destruction of the scene, there is no evidence to either support or refute such a hypothesis. However, he did note that the excavation of the main floor kitchen area revealed the presence of an operational barbecue lighter.

[101] A comprehensive fire scene investigation requires the formulation and consideration of various hypotheses regarding the origin and cause of a fire. The systematic process was utilized to make the determination of origin, cause and circumstances of the fire occurrence.

[102] In Mr. Evenden’s opinion, the area of origin for the explosion was the interior of the Riviera basement. This hypothesis was developed after a comprehensive examination of the structures exterior and interior, as well as the analysis of the explosion and fire patterns and results from the exhibits forwarded to the Centre of Forensic Sciences in addition to firefighter and witness statements. Explosion and fire patterns are defined as the visible or measurable physical effects that remain after the fire.

[103] Examination and excavation of the fire debris within the area of the basement revealed fire patterns indicating the greatest amount of fire damage confined to the area within the basement. Fire patterns observed along the west wall indicated even heat damage across the floor level indicating fuel at floor level.

[104] It was Mr. Evenden’s opinion that the intentional introduction of gasoline to the basement area of the Riviera created the volatile diffuse vapour environment within the explosive range of gasoline that once a competent ignition source was introduced it caused the explosion. In addition, the presence of the diffuse gasoline vapour assisted in the rapid spread and growth of the subsequent fire.

[105] In Mr. Evenden’s opinion, in order to determine the cause of an incident, it is necessary to determine area of origin, source of ignition and fuel first ignited. In this case, he determined the area of origin was the basement of the Riviera and that the fuel first ignited was gasoline vapours. He was not able to make a determination as to source of ignition to the exclusion of all others; however, several competent sources were considered.

[106] It was Mr. Evenden’s opinion that the presence of the intentionally introduced gasoline to the basement area of the Riviera is as a result of human design. With regards to the consideration of ignition sources, several competent sources of ignition were present inside the structure. However, one single source could not be isolated over another due to the extensive damage caused by the explosion.

[107] It was Mr. Evenden’s opinion that the fire should be classified as incendiary, or to put it in terms of a layperson, an intentionally set fire. It was also Mr. Evenden’s opinion that a volatile ignitable liquid identified as gasoline was intentionally applied to the floor area within the basement of the Riviera. The gasoline vapour was then ignited by a competent ignition source causing a low order explosion to occur, subsequently causing post explosion fire damage to the structure.

[108] Mr. Evenden also testified that he considered whether natural gas may have caused the explosion. He said he considered it as a potential hypothesis. He examined the scene and he excluded it through his process, his scene analysis, his post fire analysis and his force vector analysis.

[109] Mr. Evenden agreed in cross-examination that he was not aware that Acting Captain Eric McFadden had testified that the floor in the Royal Thai had heaved up when he entered there with one of the first fire suppression teams to arrive on scene. However, in his opinion, that would strengthen his force vector analysis.

[110] He also agreed that he stopped the investigation by Mr. Bennett of the hot water system in the Royal Thai. He said he did so because his determination of the area of origin of the explosion was within the Riviera basement with the fuel being gasoline vapours.

[111] Mr. Evenden agreed when he received the report from Mr. Harrison of the Centre of Forensic Sciences he advised Mr. Bennett on February 22, 2008, that there was no need to do anymore work regarding the valve from the water heater in the Royal Thai because it was outside the area of origin.

[112] It was Mr. Bennett’s evidence, who was a Fire Protection Engineer at the Fire Marshall’s Office, that there was a piece missing from the pipe connection to the hot water heater in the basement of the Royal Thai. He said there was a coupling missing and perhaps a piece of pipe. He was not sure.

(ii) Dennis Merkley

[113] Mr. Merkley testified as an expert witness for the defence. He was qualified to give expert evidence with respect to the source and origin of explosions and fires. He graduated from the Ontario Fire College in 1975. He spent more than 17 years as a field investigator for the Ontario Fire Marshall. He subsequently had positions with the Ontario Fire Marshall as a Supervisor in the Ontario Fire Marshall’s Fire Investigation Unit and was Training Manager with the Ontario Fire Marshall where he was responsible for overseeing the training and certification programs for Ontario’s fire investigators.

[114] Since retiring from the Office of the Ontario Fire Marshall, Mr. Merkley has been the Chief Executive Officer of Fire Facts Incorporated since its inception in 1993.

[115] It was his opinion, based on the eyewitnesses’ evidence, the fact that a “following fire” occurred in the basement of the Royal Thai, the sequence of photos, the evidence of the suppression crews and scene damage, that the fire originated in the Royal Thai restaurant.

[116] It was his opinion that the source of ignition, the fuel first ignited and the sequence of events that brought all together has not been established. Accordingly, in his view, the cause of the fire is undetermined.

[117] In his report, Mr. Merkley relied upon, among other things, the eyewitness account of Ms. Martin Pye. Ms. Martin Pye testified at trial that she had just parked on Dunlop Street in the vicinity of the Royal Thai and the Riviera when she heard a big explosion. She got out of her car and there was a really strong smell of gas. The gas was not like gas from a gas station but more like propane gas.

[118] Mr. Merkley testified that it was apparent that after the explosion occurred a fire followed. A “following fire” happens when the mixture of vapours and air is at or above the upper explosive limit of the fuel ignited. The explosion occurs and then the fire flashes back to the vapours remaining after the initial explosion and they begin to burn.

[119] Mr. Merkley testified that in order to determine a fire cause, the origin of the fire must be determined first. In his opinion, if the origin of the fire has been determined in the wrong area, the cause of determination of a fire is almost impossible to do. It was his opinion that had the vapours that fuelled the explosion been in the Riviera, the “following fire” would have travelled back to the source of the vapours in that restaurant – instead it travelled back to the Royal Thai. In his opinion, this suggests that the fuel source, and accordingly the origin of the event, was in the basement of the Royal Thai.

[120] In reviewing a number of witness statements and photographs of the fire as it progressed, Mr. Merkley was of the view that the fire was mainly concentrated in the Royal Thai. In his opinion, had the explosion or the initiation of the explosion occurred in the basement of the Riviera, the fire would have flashed back there. But the fire didn’t flashback there, in his opinion. It flashed back to the basement of the Royal Thai which indicates that the source of the fire was in the Royal Thai.

[121] It was also Mr. Merkley’s opinion that if the site of the explosion was in the Riviera and a “following fire” occurred, none of the liquid gas should have remained in a fire of this magnitude.

[122] It was Mr. Merkley’s opinion that if gasoline was the accelerant used in the fire, then because gasoline vapours are heavier than air, you would have had to have the gasoline thrown about or spread around or mixed in some way to get it to its explosive limit.

[123] It was also Mr. Merkley’s opinion that without the fuel being splashed around, the possibility of a gasoline vapour explosion causing the initial structural damage witnessed here is farfetched.

[124] In Mr. Merkley’s opinion, one must question how Mr. Cartolano escaped serious injury in doing so. There is evidence that an explosion occurred and a fire ensued. There is no evidence that Mr. Cartolano suffered any injury. In Mr. Merkley’s view, one would expect Mr. Cartolano would encounter burns and likely be knocked over had gasoline been poured on the basement floor. There is no evidence that the shoes or clothing of Mr. Cartolano were seized and expertly examined in an attempt to locate traces of gasoline and there is no evidence of burns to his body. Lastly, there is no evidence of a time delaying device found at the scene.

[125] It was also Mr. Merkley’s opinion that fire patterns are relatively useless to glean anything from. Flashover and full room involvement occurred in this fire. The fire burned for many hours, fire suppression was sporadic from one area to another and back again, the building collapsed causing variations in ventilation. Fuel packages from above (chesterfields, mattresses and like combustibles) would ignite in the apartments above and fall down causing patterns on the levels below. In his opinion, placing any reliance on the reading of these fire patterns is impossible unless one has complete video coverage of the event from start to finish.

[126] In Mr. Merkley’s opinion, fires, by their destructive nature, consume the evidence of their initiation and progress as they grow. In fires, the larger they become and the longer they burn, the less evidence of origin and causation will remain. In post-flashover and building collapse fires, sufficient evidence to establish the origin and cause do not survive, no matter how diligent the search or well prepared the searcher.

[127] It was also Mr. Merkley’s opinion that the presence of ignitable liquids may indicate that a fire was incendiary especially when ignitable liquids are found in areas in which they are not normally expected. However, it was also his opinion that the presence of ignitable liquids near the area of origin should be fully investigated. In his opinion, that was not done in this case.

[128] In cross-examination Mr. Merkley agreed that more than one firefighter saw fire in the basement of the Riviera. However, he also took into consideration that it was the Royal Thai where the first witness identified where the event occurred and where the suppression crew went in and used a thermal imaging camera.

[129] It was also his opinion that if there was an initial fire in the Riviera, you should have greater damage in the Riviera but the greater damage was to the Royal Thai because the fire flashed back after the explosion to the fuel that was in there and started to burn. In his view, there was more damage to the Royal Thai initially but as the fire progressed, the damage became as great in the Royal Thai.

[130] It was also Mr. Merkley’s opinion that you can’t read any force vector analysis because the whole building has collapsed. He testified that you could read a vector force if you had no fire and no building collapse but there is no way you can read any vector force with the damage you have in these circumstances.

[131] It was also Mr. Merkley’s opinion that checking the natural gas piping in the Royal Thai is a key issue. In his opinion, the missing pipe and coupling from the Royal Thai is significant because if you can’t examine all the pipes, you can’t eliminate the possibility of a natural gas leak causing the explosion. There was no gas piping missing or no damage in the piping elsewhere on the premises. In Mr. Merkley’s opinion, this is an indicator that possibly the explosion occurred there and caused that damage. In Mr. Merkley’s opinion that was quite significant.

[132] Mr. Merkley was also of the opinion that the systemic approach of working from area of least damage to area of most damage is of little assistance in these circumstances because given the total devastation there is no way you can do that.

(b) Motive

[133] There is no doubt that Mr. Cartolano had a motive to commit arson in this case. There is a wealth of testimony that Mr. Cartolano had to rely on others for finances when he began the Riviera and that this continued until the Riviera was destroyed. Although at times he tried to convey that he was a person of substantial monies, Mr. Cartolano did concede that he had financial difficulties.

[134] Elena Goussakova and her friend invested $20,000 to launch the Riviera. The initial plan was that Mr. Cartolano would, in exchange, do the cooking and build the business. Mr. Cartolano did not have monies to invest. Ms. Goussakova cited two examples of lack of funds on Mr. Cartolano’s part – one that he had been bankrupt in 1998, and another that he had been in a lawsuit over Blueberry Hill. Mr. Cartolano conceded both.

[135] Mr. Cartolano could not obtain banking financing, nor could a restaurant be registered in his name. Mr. Cartolano borrowed funds to buyout Ms. Goussakova. He borrowed money from his father for financing. He borrowed money from his sons to build the restaurant. According to Ms. Saunders, for the first six months to a year business was good, but then slowed down considerably.

[136] Mr. Cartolano listed the Riviera for sale with real estate agents. The first time was with Andy Leung, who listed the business for $329,000 in March 2006. This was six months after the lease for the Riviera in September 2005. The listing lapsed on September 30, 2006, without any offers made.

[137] The second time Mr. Cartolano listed the Riviera was with agent Michael Rotondo. The listing ran from December 6, 2006, to March 31, 2007. Initially listed at $329,000 and was then reduced to $279,000. Although he had two or three calls about the address, Mr. Rotondo never received any offers. He also testified that he did not have any walk-ins or referrals from Mr. Cartolano.

[138] Ms. Goussakova testified that in 2007, Mr. Cartolano asked for her help. He complained of his debt. She did not meet Ms. Laverne Williams. She discovered that the liquor licence was still in the name of Mr. Cartolano’s deceased father and called to report it. Mr. Cartolano lost his liquor licence in June 2007.

[139] Ms. Saunders and other employees left the Riviera by the end of August 2007. Employees were not being paid. Suppliers were not being paid. Mr. Silvea said the same. Ms. Williams said that business was slow when she started working as a hostess. Mr. Cartolano admitted that business was not as good in 2007 as it had been in 2006.

[140] The Riviera was apparently a cash business. Ms. Saunders testified she was paid in cash. There was testimony, for example of Sam Hay of the Robert Simpson Brewery, that suppliers were paid in cash. When she paid for matters or received recompensation, Ms. Williams received cash. No books were ever supplied to Mr. Graham, SCM Adjusters or Gore Insurance.

[141] Mr. Cartolano testified that he borrowed $40,000 at 59% interest rate to purchase a business. He said he could not work much because of injuries from a motor vehicle accident. He also said he worked two days a week at the Madison Banquet Hall, drawing $500 per week for working Fridays and Saturdays in early 2007. He also said the Riviera was operating on these days, he was the sole chef – though he tried to train others.

[142] According to Kevin Lowe, Mr. Cartolano was delinquent in both his residential and commercial lease payments. Mr. Cartolano denied this was a chronic condition but did agree to being behind his rent at times.

[143] Mr. Cartolano received blank cheques from and endorsed by Lillian Williams. He acknowledged in testimony that he had “$100,000 in hand” as a result. Exhibit 68 contains the bank records detailing the cheques, the deposit and where the money was spent. The monies were then used primarily to pay back debts, such as back rent and loans owed by Mr. Cartolano.

[144] Kevin Lowe testified that on December 2, 2007, at the Glenway Golf Club in Newmarket, he met Mr. Cartolano and Laverne Williams. He rejected a sublease that had been drawn up in favour of Ms. Williams and was asked to sign. He required that Mr. Cartolano pay back rent before he would agree to a sublease. Mr. Cartolano asked Mr. Lowe to agree to backdate the lease.

[145] Eric Maizis was a realtor who had been showing homes to Mr. Cartolano and Ms. Williams. He testified that he was told by Mr. Cartolano that he expected to have some insurance money – from being in a car accident. Purchase of the house was to be in Laverne’s name, because she had a better credit rating. Mr. Cartolano also said that his money was tied up in the restaurant.

[146] The receipt of cheques from Lillian Williams in August 2007 led to an influx of cash that enabled Mr. Cartolano to pay debts. After that, the restaurant’s financial situation continued to deteriorate. Lillian Williams was repeatedly calling to speak with Mr. Cartolano about the money he had taken from her account, demanding it be paid back. He, in fact, agreed to do so, but in reality was financially incapable.

[147] Mr. Cartolano then started, around November/December 2007, to formalize the notion of Laverne Williams purchasing the business. It is then that Mr. Cartolano had an Agreement of Purchase and Sale drawn up, Ex. 47. Mr. Cartolano testified that the prior Agreements of Purchase and Sale (Ex. 38, 39) were drawn up for the purpose of applying to the Toronto-Dominion Bank for a loan and government grant. At one point, Mr. Cartolano testified, the TD Bank instructed that the Agreement be done. Mr. Cartolano said that once the application was denied, the agreements made with Lillian no longer were part of the agreement.

[148] In formalizing the sale of the business with Laverne Williams in November/December 2007, Mr. Cartolano then told Laverne that her mother advanced the down payment of $45,000.

[149] This formal Agreement of Purchase and Sale, Ex. 47, continued to acknowledge a $45,000 down payment and that $55,000 was due within 90 days of closing and the remaining $180,000 was a mortgage held by Mr. Cartolano as a vendor take-back mortgage. To effect the closing, Ms. Williams, with the assistance of Mr. Cartolano, sought to insure the business. Mr. Cartolano testified he “wasn’t going to do the deal unless we were covered with the mortgage”.

[150] Mr. Cartolano then arranged for the insuring of Ms. Williams’ new business for $300,000 ensuring his own stake and interest as a mortgage holder in the proceeds.

(c) Opportunity

[151] Mr. Cartolano was the last person to leave the Riviera on December 6, 2007. Ms. Williams estimated that she left shortly after Andrea left, so after 10:00 p.m. Mr. Cartolano testified that he left not long after. There is nothing to independently establish at what time either person left with certainty. Mr. Cartolano said he went upstairs and got a few things and then left through the back, locking the door behind him. He also said he had turned off all the gas in the kitchen.

[152] Mr. Cartolano testified that he left the Riviera at about 20 minutes to 11. He said that at about 25 minutes after 10, approximately, Andrea’s mother came to pick her up. He said after Ms. Williams left, he went upstairs to his room, put on another shirt, picked up his glasses, a little bit of cash, put his jacket on and left. He said he stopped by a café at Jane and Sheppard in Toronto but it was closed. He then went down the street to Jane and Wilson and grabbed a coffee at Coffee Time. He then went home which was about ten minutes away from there. He saw his son, Christian, who told him he was ready to go to sleep. He said goodnight to his son and went to his room.

[153] Christian Cartolano testified that on the evening of December 6, 2007, Mr. Cartolano showed up at about 20 minutes or quarter to 12. They talked a little bit and then he went to bed. He said he goes to bed around midnight because he gets up early in the morning. He said he lives at Allen Road and Steep Rock which is south of Finch but north of Sheppard. He agreed it would probably take about an hour and 15 minutes to travel by car from home to the Riviera but at that time of night there wouldn’t much traffic so there would be less time travelled.

[154] He testified that Mr. Cartolano was there before midnight because he goes to sleep before midnight and he showed up before midnight.

(d) Moving the Computer

[155] Andrea Jamieson testified that on the evening of December 6, 2007, just before 10:00 p.m., Mr. Cartolano was cleaning up at the Riviera and taking out the garbage. Specifically, he took a computer out. He said to Laverne “she would keep it?” Laverne said “no”. So he put it out the back door. Ms. Jamieson asked what is that about. They said they were getting a new computer within the next few days.

[156] Suzanne Galley testified that she saw the computer from the Riviera office again in the apartment that Ms. Williams and Mr. Cartolano were staying in after the fire on December 6, 2007, in Barrie. She said the computer was really old and clunkly. She had used it in the past. It was a really old computer tower.

(e) Minivan

[157] Suzanne Galley testified that she lent Mr. Cartolano, her father-in-law, her minivan which was a Chevy Venture. Mr. Cartolano admitted he was driving her van the night of December 6, 2007. He said he borrowed the van because he wanted to start removing some boxes, personal belongings, to do the taxes. He said that because he had nothing to do with the restaurant anymore, he was going to bring some stuff to his place or his sister’s place where she could do the taxes.

[158] Jake Meder testified that on the evening of December 6, 2007, he was living with his wife in the apartment that was above the Stephenson’s Jewellery location at 30 Bayfield Street in Barrie. It was right next to the Royal Thai. At about 11:30 p.m., he heard a loud explosion.

[159] Immediately after he heard the sound, he jumped up on the end of the bed to look out the window because the window was high up and he looked down into the alleyway. When he looked out the window, he saw a minivan parked, backed into the spot in front of the cargo area. There was a man who got into the minivan and drove away. He recalled his demeanour as being calm which struck him as odd considering the loud noise that had just occurred. Then after that, he got back down off the bed and went to look out the front window which overlooked Bayfield Street.

[160] He said the person drove calmly away. The van was a standard passenger minivan. He doesn’t remember the colour of it. The impression he had of the man was that he was an older man, 40 or older of average height and average build. He does not have a recollection of his hair colour or any defining features.

[161] Mr. Meder testified that he parked his own vehicle in that general area. He said that he spoke to the owner of the Silver Star, an establishment close by to the Riviera and Royal Thai, who had blocked him in with a van at one time. He doesn’t know if it was the same van. He said he parked in Rob Stephenson’s parking spot and he’d been blocked in a couple of times.

(f) Moving of Property from the Riviera

[162] A week before December 6, 2007, Mr. Cartolano moved boxes into the basement of his son and daughter-in-laws’ home. Lerry Silvea also testified that the day after the Christmas parade in Barrie, he saw Ms. Williams and Mr. Cartolano loading up a van behind the Riviera, filling the van with Rubbermaids, pictures, a TV and expensive furniture. At the time he was not talking to either Ms. Williams or Mr. Cartolano. He had quit his job as a chef at the Riviera because he was not getting paid. Eric Maizis testified that shortly before the fire, he was at the Riviera and noticed that the inventory was low and that the paintings had changed. Mr. Cartolano said that he had changed the pictures because he was in the process of selling the restaurant and therefore took the pictures out.

[163] Laverne Williams testified that she had stored her belongings in the basement of the Riviera. She had furniture there and other belongings in Rubbermaid containers. She moved those items into the Riviera when she left her condo in Mississauga. She testified that she moved her belongings out prior to the fire because she was spending Christmas with her kids. Her daughter didn’t have decent furniture so she used Ms. Williams’ furniture. Ms. Williams could not remember how she moved. She said that during her time at the Riviera, Mr. Cartolano in the general course would move items in and out of the Riviera.

[164] Mr. Cartolano testified when asked about Mr. Silvea seeing him move boxes and personal items from the basement of the Riviera that whatever he was moving it was only boxes of documents, no other material. It was just documents that he had through the years plus things that didn’t belong in the restaurant anymore.

Analysis

[165] As I indicated earlier, the evidence of Ms. Williams requires special scrutiny. She has a criminal record for dishonesty; she has a motivation to lie in light of the plea agreement that she made with the Crown at Exhibit 53; there were a number of inconsistencies in her evidence and the statement she made to the police; and I found her evidence regarding her role in the insurance fraud very troubling.

[166] She testified that she had entered a guilty plea to the attempted fraud in relation to this matter with the assistance of counsel, but denied she was guilty of it. She said she entered the guilty plea because of certain discussions she had with her lawyer at the time.

[167] As well, Ms. Williams testified before me that there was no fraud regarding the monies she received from her mother, Lillian Williams. She testified that her mother got a loan from the bank and used $45,000 of that loan as part of the purchase of the restaurant. However, that is in direct contradiction to the evidence of Lillian Williams, whose evidence I do accept. Lillian Williams struck me as a very honest, but rather unsophisticated person in business and financial matters.

[168] In addition in Exhibit 53, Laverne Williams signed a synopsis as being true which has the following statement in it:

As well Laverne Williams acknowledges that she was aware that John Cartolano obtained blank cheques from Laverne’s mother, Lillian Williams, and cashed those cheques in amounts far exceeding the amounts approved by Lillian Williams. Cartolano obtained these signed cheques by promising to use them to clear up debts owed by Lillian Williams. Cartolano convinced Lillian Williams to mortgage properties that she owned to ensure that there were sufficient funds in her bank account. The total amount of this fraud was approximately $116,000. Laverne Williams did not receive any money directly from the fraud of her mother by John Cartolano.

[169] That statement is in direct contradiction to the evidence that Ms. Williams gave before me in this trial that there was no fraud regarding the monies she received from her mother, Lillian Williams.

[170] In light of the above factors, there is good reason to look at Ms. Williams’ evidence with the greatest care and caution. As I have previously mentioned, I am entitled to rely on Ms. Williams’ evidence even if it is not confirmed by another witness or other evidence, but it is dangerous for me to do so.

[171] I have considered other confirmatory evidence in this case both individually and cumulatively to determine if such evidence helps restore my faith in the relevant parts of Ms. Williams’ evidence in regard to what she says Mr. Cartolano said to her about starting the fire at the Riviera with gas.

[172] In particular, I have considered the expert evidence in this case of Mr. Evenden and Mr. Merkley. On the state of the expert evidence before me, I am unable to determine whether the fire was intentionally set or that gasoline was the fuel first ignited in the fire. Both Mr. Evenden and Mr. Merkley are two very experienced fire investigators who concluded two very different things about whether the fire was intentionally set and whether gasoline was the fuel first ignited in the fire. Both gave evidence in a professional, reasoned, rational manner and neither were, in my view, seriously shaken in cross-examination.

[173] However, I am unable to conclude that the fire was intentionally set or that gasoline was the fuel first ignited in the fire. In my view, the evidence on these issues is equivocal and certainly does not rise to the level necessary for me to have my faith restored in the evidence of Laverne Williams about what Mr. Cartolano said to her regarding his role in the fire.

[174] I have also considered other potential confirmatory evidence such as the motive Mr. Cartolano had for starting a fire at the Riviera and the opportunity he had to do so, as well as other circumstantial evidence tending to establish his guilt. I am unable, however, looking at all of the potential confirmatory evidence both individually and cumulatively to conclude that such evidence rises to the level necessary for me to have my faith restored in the evidence of Ms. Williams about what Mr. Cartolano said to her regarding his role in the fire.

[175] As there is not sufficient confirmatory evidence in this case, it would be dangerous for me to rely on the evidence of Ms. Williams in regard to her evidence about what Mr. Cartolano said to her regarding his role in the fire.

[176] While I may believe Ms. Williams if I find her evidence trustworthy, even if no one or nothing else confirms it, I do not find Ms. Williams’ evidence to be trustworthy or reliable. I find it very unlikely that Mr. Cartolano would confess to Ms. Williams at all, let alone a month after the fire. Her evidence that Mr. Cartolano confessed to her because it bonded them seems quite implausible to me. I am also troubled by the incremental nature of Ms. Williams’ disclosure to the police of Mr. Cartolano’s statement implicating himself in the fire. When it became clear to Ms. Williams in the course of the police interview that she herself was in jeopardy, it was only then she implicated Mr. Cartolano.

[177] In light of all of this, including her criminal record for dishonesty, her motivation to lie, her inconsistent statements to the police and her trial evidence, as well as her lack of candour regarding (1) her guilty plea on the insurance fraud; and (2) her involvement in the fraud on her mother, I find Ms. Williams to be an unreliable witness and I do not and cannot rely on her evidence on the main issues, particularly her evidence regarding Mr. Cartolano’s confession to her.

[178] Having rejected Ms. Williams’ evidence regarding Mr. Cartolano’s confession and having concluded that the expert evidence to be equivocal on the issues of whether the fire was intentionally set and whether gasoline was the fuel first ignited in the fire, I am not satisfied when viewing the totality of the evidence in this case that the Crown has proven beyond a reasonable doubt the first essential element of the offense, namely, that Mr. Cartolano caused damage to property by fire or explosion. Accordingly, it is not necessary for me to deal with the other essential elements of the offense.

[179] It is not enough for me to believe that Mr. Cartolano is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. After considering all the evidence I am not satisfied beyond a reasonable doubt that Mr. Cartolano caused damage to property by fire or explosion. Therefore, I find him not guilty of Count No. 1.

[180] Dealing with Count No. 2, the first essential element in that Count is identical to the first essential element in Count No. 1, namely: Did Mr. Cartolano cause damage to property by fire or explosion. For the reasons I have previously expressed, I am not satisfied beyond a reasonable doubt that Mr. Cartolano caused damage to property by fire or explosion. Accordingly, I find Mr. Cartolano not guilty of Count No. 2.

[181] Accordingly, a verdict of not guilty will be recorded on the indictment regarding both Counts 1 and 2.

M.F. Brown J.

Released: June 14, 2013

COURT FILE NO.: 10-158

DATE: 20130614

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

GIOVANNI CARTOLANO

REASONS FOR JUDGMENT

M.F. BROWN J.

Released: June 14, 2013