ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR11400006060000
DATE: 20140529
BETWEEN:
HER MAJESTY THE QUEEN
– and –
URI MLYNSKY
Defendant
Paul Leishman, for the Crown
Carol Anne Matthews, for the Defendant
HEARD: December 16, 2013, April 14, 2014
REASONS FOR DECISION
hainey j.
Overview
[1] Mr. Mlynsky is charged with the following offences:
That he, on or about the 7th day of February in the year 2010 in the City of Toronto in the Toronto Region did intentionally cause damage by fire to a dwelling unit the property of Anna Mlynsky situate at 175 Hilda Avenue, Apartment 101, Toronto, contrary to s. 434 of the Criminal Code.
He stands further charged that he, on or about the 7th day of February in the year 2010 in the City of Toronto in the Toronto Region did intentionally cause damage by fire to a dwelling unit in an apartment building situate at 175 Hilda Avenue, Toronto, knowing or being reckless with respect to whether the said property was inhabited or occupied, contrary to s. 433(a) of the Criminal Code.
[2] He pleaded not guilty to both charges and was tried before me without a jury.
[3] The charges relate to a fire that occurred on February 7, 2010 in Unit 101 of a condominium apartment building located at 175 Hilda Avenue in the City of Toronto. At the time, Mr. Mlynsky was living in Unit 101 with his mother who owned the unit.
[4] There is no dispute that the fire in Unit 101 was intentionally caused by arson and that it was started with the use of accelerants. There is also no dispute that the apartment building was inhabited.
[5] The only issue that I must decide is whether the Crown has proved beyond a reasonable doubt that Mr. Mlynsky committed the arson.
Facts
[6] Many of the relevant facts were admitted by Mr. Mlynsky pursuant to section 655 of the Criminal Code in an Agreed Statement of Fact which was filed as an exhibit at trial.
[7] Only two witnesses testified at trial. Mr. Greg Olson, who is a fire investigator with the Office of the Fire Marshall, testified on behalf of the Crown. Mr. Mlynsky also testified.
[8] According to Mr. Olson, whose evidence I accept, his investigation of the origin and cause of the fire led him to conclude that the fire originated in Mr. Mlynsky’s mother’s bedroom and the living room area of the apartment unit. He concluded that someone had poured gasoline on the bed in Mr. Mlynsky’s mother’s bedroom and on the floor in the living room. The gasoline on the floor of the living room had a trail of gasoline leading to the front door of the apartment unit. In Mr. Olson’s opinion a fire was first lit in the bedroom. A second fire was then lit at the end of the trail of gasoline next to the front door of the apartment unit. The person who lit the fire then left the apartment unit from that door.
[9] Mr. Mlynsky is 42 years old. He suffers from paranoid schizophrenia for which he takes medication. He has always lived with his mother. As a result of his medical condition he is not employed. He receives Ontario Disability Benefits.
[10] He testified that on February 7, 2010 he returned to his apartment unit around 7 p.m. after going out to buy cigarettes. His mother had gone to the swimming pool in the apartment building and was not in the apartment unit at the time. Although he had locked the front door when he left, it was open when he returned. When he entered the apartment unit he saw a black man sitting on the couch in the living room. The man had a gun. He said to Mr. Mlynsky “Get the fuck out of this apartment”. Mr. Mlynsky said “Please don’t hurt me. Can I get my medication and my computer and can I leave?” The man said “Get it and get out”. According to Mr. Mlynsky it took him approximately five to ten minutes to find his medication and his laptop computer. While he was looking for his medication he felt nauseous and he vomited in the bathroom. While he was in the apartment unit he did not see or smell any gasoline.
[11] Mr. Mlynsky left the apartment unit and went directly to his car that was parked in the parking lot adjacent to the apartment building. As he drove away he saw smoke and he observed that his apartment unit was on fire. Mr. Mlynsky explained that he did not call 911, the police or the fire department after he drove away because the man had threatened to track him down and shoot him if he called the police. He eventually called his sister, Dahlia Mlynsky. He told her that a black man had broken into their apartment unit and had threatened to set it on fire.
[12] Mr. Mlynsky later returned to the apartment unit after the fire had been extinguished. He was interviewed by a police officer at the scene. He later gave a videotaped statement to the police that evening.
Issue
[13] As I have already indicated the only issue that I must decide is whether the Crown has established beyond a reasonable doubt that Mr. Mlynsky started the fire in the apartment unit.
Positions of the Parties
[14] Crown counsel, Mr. Leishman, submits that all of the circumstantial evidence leads to only one rational conclusion – that Mr. Mlynsky started the fire. He argues that Mr. Mlynsky’s version of events is not credible and it does not make sense. According to Mr. Leishman, the Crown is only required to establish Mr. Mlynsky’s guilt beyond a “reasonable doubt” not a “speculative or imaginative doubt”. He submits that Mr. Mlynsky’s version of events is not believable and it does not raise a reasonable doubt. According to Mr. Leishman, he should be found guilty of both charges.
[15] Defence counsel, Ms. Matthews, submits that the Crown has failed to prove the charges against Mr. Mlynsky beyond a reasonable doubt. In support of this submission she points out that there are no witnesses and no forensic evidence that connect him to the fire. She maintains that the Crown has not established that Mr. Mlynsky had an exclusive opportunity or a motive to set the fire. Further, she submits that Mr. Mlynsky was a candid and honest witness who gave a credible version of events. She argues that I should accept his evidence.
Applicable Legal Principles
[16] I must decide this case on the basis of well-established principles. The first is that Mr. Mlynsky is presumed to be innocent. The second is that the onus of proving the case beyond a reasonable doubt rests at all times with the Crown. Accordingly, even if I find that the evidence establishes a likelihood of guilt, or a probability of guilt or even a strong probability of guilt on the part of Mr. Mlynsky, he must be acquitted of the charges as that level of proof is insufficient to meet the standard of proof beyond a reasonable doubt.
[17] Further, in assessing the evidence in this case I am bound by the Supreme Court of Canada’s decision in R. v. W.(D), 1991 93 (SCC), [1991] 1 S.C.R. 742. If I believe Mr. Mlynsky’s evidence I must acquit him. If I do not believe his evidence but I am left with a doubt by it, I must acquit him. Even if I am not left in doubt by Mr. Mlynsky’s evidence, I must be convinced beyond a reasonable doubt on all of the evidence that I do accept that Mr. Mlynsky is guilty. If I am unsure where the truth lies I must acquit Mr. Mlynsky.
[18] As there is no direct evidence that Mr. Mlynsky started the fire, the Crown’s case depends entirely on circumstantial evidence.
[19] In considering whether the circumstantial evidence relied upon by the Crown establishes Mr. Mlynsky’s guilt beyond a reasonable doubt, I must be satisfied that the only rational inference I can draw from viewing all of the circumstantial evidence as a whole is that Mr. Mlynsky started the fire in the apartment unit.
Analysis
[20] The Crown relies upon the following circumstantial evidence:
(a) Mr. Mlynsky was in the apartment unit for approximately sixteen minutes immediately before the fire started. This is established by the video surveillance cameras in the apartment building that show that Mr. Mlynsky entered the apartment unit at 7:06 p.m. and left it at 7:22 p.m. The fire department was alerted about the fire at 7:23 p.m., approximately one minute after Mr. Mlynsky left the apartment unit;
(b) The video surveillance cameras do not show anyone else entering or leaving the apartment unit at the time. In particular, none of the video surveillance cameras in the building show a black man, as described by Mr. Mlynsky, either entering or leaving the apartment unit or the apartment building;
(c) The sixteen-minute period during which Mr. Mlynsky was in the apartment unit immediately before the fire started gave him sufficient time to pour gasoline on the bed in his mother’s bedroom and on the floor in the living room and to light the fire before he left;
(d) Mr. Leishman submits that it does not make sense that an armed intruder who intended to commit arson would allow Mr. Mlynsky to look for his medication and computer for sixteen minutes and then allow him to leave before setting fire to the apartment unit;
(e) Crown counsel points out that Mr. Mlynsky testified that he did not see or smell any gasoline when he was in the apartment unit, however, almost immediately after he left he saw smoke and the apartment unit was on fire. Mr. Leishman argues that there would have been insufficient time for the intruder to obtain the gasoline, pour it in the bedroom and the living room, light the fire and then leave. Crown counsel submits that Mr. Mlynsky’s version of events, therefore, is not plausible;
(f) Finally, Mr. Leishman argues that it is highly unlikely that an intruder would have known the precise route he would have had to follow to avoid being detected by any of the surveillance cameras in the apartment building.
[21] Crown counsel submits that Mr. Mlynsky’s version of events is neither plausible nor believable and cannot be true. He maintains that all of the circumstances can lead to only one rational inference – that Mr. Mlynsky set the apartment unit on fire while he was inside and before he left at 7:22 p.m.
Mr. Mlynsky’s Testimony
[22] I have carefully considered Mr. Mlynsky’s testimony. I do not find him to be a credible witness. His version of events is not plausible. Much of his evidence does not make sense. It is internally and externally inconsistent. In particular, I do not accept his evidence for the following reasons:
(a) In his accounts of the incident given to a police officer at the scene and later that evening in a videotaped statement he gave at the police station, he did not mention that he had looked for his medication and computer for five to ten minutes or that he had vomited in the bathroom before leaving the apartment unit. The video surveillance cameras establish that he was in the apartment unit for approximately sixteen minutes immediately before the fire started. His statements to the police after the incident and before he was aware of this video surveillance evidence, do not suggest that he was in the apartment unit with the intruder for such a long period. I find that he embellished his testimony at trial in an effort to account for the sixteen- minute period that the video surveillance evidence establishes he was actually in the apartment unit before the fire started.
(b) In my view, it does not make sense that an armed intruder intending to commit arson would allow Mr. Mlynsky to remain in the apartment unit looking for his medication and computer for as long as sixteen minutes. Mr. Mlynsky’s testimony in this regard does not accord with common sense.
(c) Mr. Mlynsky testified at trial that he had a four-minute telephone conversation with his sister, Dahlia, after he left the apartment. He did not tell the police this during either of his statements following the incident. According to the Agreed Statement of Fact, Dahlia described her telephone conversation with Mr. Mlynsky as “one sentence”. I find that Mr. Mlynsky embellished his evidence at trial when he testified that he had a four-minute telephone conversation with his sister. In my view he did so because his cell phone records indicate that there was a four-minute telephone call between his cell phone and his sister’s cell phone at 7:41 p.m. on the night of the fire.
(d) When he gave his videotaped statement Mr. Mlynsky told the police that the intruder was wearing a short-sleeved pullover. At trial he testified that the intruder was wearing a long-sleeved pullover. At trial he denied telling police that the pullover had been short-sleeved. His videotaped statement clearly records him describing the pullover as short-sleeved. I find that Mr. Mlynsky changed his description of the intruder’s pullover at trial because he realized that it makes no sense that the intruder would have been wearing only a short-sleeved pullover in the middle of winter.
(e) Mr. Mlynsky’s testified that he did not see or smell any gasoline while he was in the apartment unit with the intruder. However, he testified that he saw smoke and the apartment unit was on fire immediately after he left. Based on his version of events there would have been insufficient time for the intruder to obtain and pour gasoline in the bedroom and the living room of the apartment unit, light the fire and then leave. I find that his version of events in this regard does not have an air of reality and is not plausible.
(f) I found Mr. Mlynsky to be an evasive and unreliable witness. He did not answer questions directly and his testimony seemed contrived. In considering Mr. Mlynsky’s demeanor as a witness, I have taken into account the fact that he suffers from paranoid schizophrenia and he is on medication. Certain aspects of his poor demeanor as a witness may be the result of his illness and his medication. Nonetheless, I find him to be an unreliable witness. In my view, his testimony lacks an air of reality.
[23] For these reasons I do not accept his evidence. It does not leave me with a reasonable doubt as to his guilt.
The Circumstantial Evidence
[24] In my view the cumulative force of all of the circumstances that I have already reviewed, leads to the logical and inescapable conclusion that Mr. Mlynsky started the fire before he left the apartment unit at 7:22 p.m. I find that the only rational inference that can be drawn from all of the circumstantial evidence relied upon by the Crown is that Mr. Mlynsky set fire to the apartment unit.
Conclusion
[25] For these reasons I do not believe Mr. Mlynsky’s evidence that he did not start the fire in the apartment unit and it does not leave me with a reasonable doubt that he did. Further, I am satisfied beyond a reasonable doubt on all of the circumstantial evidence that I do accept that Mr. Mlynsky set fire to the apartment unit as alleged by the Crown.
[26] I therefore find Mr. Mlynsky guilty of both charges.
HAINEY J.
Released: May 29, 2014
COURT FILE NO.: CR11400006060000
DATE: 20140529
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
URI MLYNSKY
Defendant
REASONS FOR DECISION
HAINEY J.
Released: May 29, 2014