ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 1838/15
DATE: 2015-12-11
BETWEEN:
HER MAJESTY THE QUEEN
– and –
PETER JINDRA KUPEC
ABBY AVERY, for the Crown
KENNETH MARLEY, for Peter Jindra Kupec
HEARD: October 26, 27, 28, 29, 30 and November 2, 2015
DESOTTI, J.
A. The Indictment
[1] The indictment reads as follows:
Peter Jinda Kupec stands charged:
That on or about the 21st day of October 2014 at the City of Sarnia, in the Province of Ontario, did attempt to murder Joshuaa James Joseph Tetreault by inflaming the body of Joshuaa James Joseph Tetreault by using an accelerant contrary to Section 239(1)(b) of the Criminal Code of Canada.
That on or about the 21st day of October in the year 2014 at the City of Sarnia, in the Province of Ontario, did intentionally or recklessly cause damage by fire by using an accelerant, which fire did cause bodily harm to Joshuaa James Joseph Tetreault, contrary to Section 433(b) of the Criminal Code of Canada.
That on or about the 21st day of October in the year 2014 at the City of Sarnia, in the Province of Ontario, did endanger the life of Joshuaa James Joseph Tetreault thereby committing an aggravated assault contrary to Section 268 of the Criminal Code of Canada.
That on or about the 21st day of October in the year 2014 at the City of Sarnia, in the Province of Ontario, while operating a motor vehicle and being pursued by a peace officer operating a motor vehicle, did in order to evade the peace officer fail without lawful excuse to stop his vehicle as soon as was reasonable in the circumstances contrary to Section 249.1(1) of the Criminal Code of Canada.
That on or about the 21st day of October in the year 2014 at the City of Sarnia, in the Province of Ontario, did attempt to murder David John Rose by inflaming the body of David John Rose by using an accelerant contrary to Section 239(1)(b) of the Criminal Code of Canada.
That on or about the 21st day of October in the year 2014 at the City of Sarnia, in the Province of Ontario, did intentionally or recklessly cause damage by fire to a dwelling house, the property of Ken and Teresa MacLachlan, situated at 132 Alfred Street, contrary to Section 434 of the Criminal Code of Canada.
B. The Facts
[2] On the night of October 20th, 2014, the complainant, Joshua Tetreault and his friend David Rose were drinking beer at his residence at 132 Alfred St. in the City of Sarnia when they decided to attend at the residence of a friend, Samantha Elliott, who resided at 390 Russell St S. and was just a short walk away.
[3] Shortly after they arrived at this residence, the accused, Peter Kupec and a friend also attended. The friend that accompanied Mr. Kupec left the residence early and after some considerable drinking, the complainant, Joshua Tetreault was asked to leave Ms. Elliott’s home as he became too argumentative with Ms. Elliott. He was described on a scale of intoxication as being a ten out of ten (ten being the worst) when he departed. He departed sometime after 11:00 PM or 12:00 PM, although the exact timing of his departure is not precisely ascertained.
[4] Around 2:00 AM, because Ms. Elliott and her friend Ms. Brown had to work in the morning, Mr. Rose and Mr. Kupec were asked to leave and they then departed back to Mr. Tetreault’s residence.
[5] Ms. Elliott described Rose and Kupec’s level of intoxication as less than ten but they were significantly intoxicated when they left this residence. Upon their arrival at the Tetreault residence, Mr. Rose indicated that they had awakened Mr. Tetreault, although his lights were on in his residence. He appeared to be less intoxicated to Mr. Rose and he indicated to Mr. Rose that he had fallen asleep.
[6] Mr. Kupec, the accused testified that upon his arrival that he did not immediately enter the Tetreault home but relieved himself at the rear of the residence. He then stated that he spied on the back porch a can of gasoline and reached over the railing to retrieve this can and then brought it to the front of the residence and into the porch area.
[7] He indicated that he first checked the can to ascertain what was inside and then when he determined that it was gasoline he thought that he would bring it around to the front porch area in case the parties decided to have a bonfire in the backyard fire pit. In his removal of the gas cap to ascertain the type of accelerant inside, he left the impression that perhaps he had not appropriately or securely placed the cap back on the gas can.
[8] Without any reasonable doubt and for reasons that I will outline in my R. v. W. (D.) analysis, where the evidence of the accused, Peter Kupec differs from the account of the witness, David Rose, I thoroughly and decidedly reject Peter Kupec’s version of events that he described had occurred on the early morning of October 21st, 2014.
[9] Again, relying on the version of events that were described by Mr. Rose, the two parties, namely Mr. Kupec and Mr. Rose were invited into the Tetreault residence. They began to continue to drink and listen to music and some hours passed.
[10] Unfortunately, as was the nature of Mr. Tetreault and Mr. Kupec’s relationship, they began to argue and a fight ensued. Both Mr. Tetreault and Mr. Rose acknowledged that they were no match in any confrontation with the accused, Mr. Kupec.
[11] Mr. Rose then absented himself for a washroom attendance and when he next saw the accused and Mr. Tetreault, Mr. Tetreault had a knife in his hand that he held in a “flimsy” manner and which was easily dislodged by the accused, Kupec.
[12] Peter Kupec then physically manhandled the complainant, punching him, throwing him to the ground, and then he hit him with the base of a lamp, such that Mr. Rose believed the complainant was knocked out.
[13] Mr. Rose only intervened when it appeared that the accused was about to strike the complainant while he lay on the floor in the living room with the same lamp. Nevertheless, the accused, Peter Kupec continued to kick the complainant, Tetreault, until the complainant resumed a position on the couch. Mr. Rose then indicated that the accused, Peter Kupec struck the complainant with his fist on the complainant’s nose causing it to bleed.
[14] The complainant, Mr. Tetreault then indicated to Mr. Kupec that he would not call the police and after some repetition of this assurance, Mr. Kupec eventually left the residence. Before leaving, Mr. Rose indicated that the accused, Peter Kupec tossed the complainant’s cell phone somewhere into the kitchen (the description of this kitchen area was described as being still in the state of upheaval as Mr. Tetreault had stacks of boxes and other items on the floor in this area as part of his extended move to this residence, a home owned by his mother).
[15] Mr. Rose did not have his cell phone with him that evening.
[16] A short while later, the accused, Peter Kupec returned to the residence holding a small red can of gasoline. He then proceeded to douse both Mr. Rose and Mr. Tetreault with gasoline.
[17] When Mr. Rose felt the wet gasoline on his clothes and person, he bolted from the residence and ran down the street. Mr. Rose then indicated that the accused also exited the house calling out to him to return.
[18] Mr. Rose declined the invitation and ran a short distance to Samantha Elliott’s residence.
[19] He awoke the women and both testified that they smelt a strong odour of gasoline on Mr. Rose’s clothes and person. Mr. Rose then obtained Ms. Elliott’s cell phone wherein he called the 911 dispatcher.
[20] He advised the dispatcher of what had transpired back at the Tetreault residence and the concern he had for his friend who remained behind. In this call, he did indicate that the accused Peter Kupec had a lighter with him, but at trial he could not remember this detail although he did indicate that his conversation with the dispatcher would have been fresher in his mind at that time than at trial.
[21] During this call we can certainly hear a significant level of distress in Mr. Rose’s voice as well as a level of intoxication.
[22] Upon Mr. Rose’s return to 132 Alfred St. and the attendance of the police, he observed Mr. Tetreault emerge from his residence and initially Mr. Tetreault sat on the steps of his porch.
[23] Officer Mike Ross, who I conclude was the first officer on the scene, eventually removed Mr. Tetreault away from the porch to the curb of the street. He was assisted in this endeavour by Constable Urban, the second officer to arrive at 132 Alfred St.
[24] Mr. Rose did not observe the accused, Peter Kupec at the residence at Alfred St. or on the street.
[25] Officer Mike Ross testified that he placed the complainant, Tetreault with a female neighbour who had arrived at the scene and Mr. Rose who remained there as well. Both officers described Mr. Rose as hysterical at this juncture of the evening. The two officers then returned to the burning residence and entered same to determine if anyone remained inside.
[26] Meanwhile, at the curbside, Ms. Letourneau testified that she urged the complainant, Joshua Tetreault to tell her what happened. Mr. Tetreault told her that he had been set on fire. Mr. Letourneau then asked him to give her the name of the individual that set him on fire? After some prodding and urging from his friend Mr. Rose, Mr. Letourneau indicated that the complainant, Joshua Tetreault responded “Pete”. Ms. Letourneau then said “Pete who”, to which Mr. Tetreault responded by merely repeating the name “Pete”.
[27] Mr. Rose has no memory of Ms. Letourneau’s attendance at the curbside with the complainant, Joshua Tetreault, but does indicate in his testimony that there were in fact neighbours outside and that the street in question was in some chaos, with smoke, police and fire trucks also present.
[28] The complainant, Joshua Tetreault has no memory of the critical time period of October 20th or October 21st, and no memory of how the fire was started or how he was burned.
C. Analysis
[29] There are three central issues that arose from the evidence heard in this trial that I have identified as follows:
- Since the accused, Peter Kupec testified at this trial, what is the result or conclusion from the W. (D.) analysis?
[30] Anytime an accused takes the witness stand, his or her counsel go through a very significant and systematic process and analysis of the potential positive and negatives that might arise in course of his or her testimony. Sometimes it is an obvious choice one way or another. At other times, placing the accused’s credibility before a judge or judge and jury is at best a calculated risk.
[31] In this case, given what the eyewitness Mr. Rose indicated occurred at the material time just minutes before the serious burns to the complainant, Joshua Tetreault and the ensuing fire in the residence, the accused, Peter Kupec attempted to provide to the court a different version of events.
[32] Unfortunately, his evidence was absent any grain of truth and failed miserably such that I concluded in the course of the W. (D.) analysis that I rejected all of the accused’s evidence where it differed from other witnesses called by the Crown including the police officer who testified about the events leading to the driving offence before the court.
[33] The four pronged approach as reflected in Watt’s Manual of Criminal Jury Instructions is stated as follows:
a) If you believe Peter Kupec’s evidence that he did not commit the offences as charged, you must find him not guilty;
b) If, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must find Peter Kupec not guilty because Crown counsel would have failed to prove Peter Kupec’s guilt beyond a reasonable doubt;
c) Even if you do not believe Peter Kupec’s evidence, if it leaves you with a reasonable doubt about his guilt, or about an essential element of an offence or offences charged, you must find him not guilty of that offence or offences;
d) Even if Peter Kupec’s evidence does not leave you with a reasonable doubt of his guilt about an essential element of an offence or offences charged, you may convict him only if the rest of the evidence you do accept proves his guilt of it or them beyond a reasonable doubt.
[34] As stated, I came to the conclusion to reject the evidence of the accused where it differed from David Rose for a number of reasons. I will provide a brief synopsis of what the accused, Peter Kupec stated in his testimony as follows:
The accused, Peter Kupec differed in his account of what occurred at the Tetreault residence when he and Mr Rose arrived back at that location after 2:00 AM from the Elliott residence. He stated that he had to relieve himself and went to the back of the residence behind a mobile home while Mr. Rose went into the residence. He then stated that at this rear location he spotted a can of gasoline in the back porch area and reached over a railing to retrieve this gasoline can. He then checked the contents of the can by removing the gas cap and determined that it was in fact gasoline and not for example diesel fuel. He then stated that he brought the gasoline to the front porch area, even though the fire pit was in the rear backyard, because he believed Mr. Rose and Mr. Tetreault might want to start a bonfire in the backyard. He then indicated that when he entered the residence he entered without the gas can and that he observed Mr. Rose and the complainant Tetreault fighting. He never mentioned anything about the possibility of having a bonfire but as things settled down all the parties drank and listened to music. Later, a fight ensued between the complainant and the accused, Peter Kupec, but again this initial confrontation settled down. The accused then went to the porch to have a smoke and retrieved the gasoline can presumably to suggest that they now should have a bonfire. A fight began again wherein the accused, Peter Kupec used the gas can as a weapon and as a means of deflecting any blows of the complainant. Gasoline spilled all over the room and onto the three parties in the room. Rose fled the living room. The accused, Peter Kupec then left but told the complainant, Joshua Tetreault not to light up any cigarettes. He took the gas can with him and threw it over a fence on Shepherd St. The accused then phoned a friend a number of times to try and get a hold of either the complainant or Mr. Rose to tell them not to involve the police as he had observed ‘cherries” in the area. Later, the accused was informed that a fire had occurred at the Alfred St. residence and that the complainant, Joshua Tetreault had significant burns to his person. During this early morning hour, the accused indicated that he sat on one of his chairs at his residence and had a smoke even though he indicated in his testimony that he also was covered in gasoline. In addition, he stated as well that he had a beer with his father-in-law. Later after he slept, he washed his clothes in his washing machine. He indicated that he drove his aunt’s car towards the scene of the fire but did not try to avoid a cruiser (glided to a stop) that had activated its lights and siren and was attempting to pull him over. Although he was eventually boxed in by this same cruiser, he does not believe he did anything untoward in not stopping when the police cruiser activated its siren and lights. He merely travelled down Russell St. and then turned onto Proctor St. oblivious to the cruiser behind him. A subsequent search warrant revealed that the clothes found in the washing machine were similar to those worn by the accused the night before (cell phone photos taken by Samantha Elliott). Both officers indicated that a jean cuff still smelled of gasoline. They retrieved an empty red gasoline can from the garage of the accused.
[35] While I enjoy a good concoction, fictional story, cobbled account, non-sequitur, fabled tales of contrivance, as a sometime pleasant diversion from reality in a non-criminal trial setting, the testimony of the accused, Peter Kupec was tortuously absurd.
[36] The first problem for the accused, Peter Kupec was the uncontroverted evidence that gasoline had been splashed on the complainant, Joshua Tetreault. How could this event have occurred? Mr. Rose indicated that the accused, Kupec left the residence after a serious fist fight and a beating by the accused upon the complainant, Tetreault. He then returned shortly thereafter still enraged and purposely doused both the complainant, Mr. Tetreault and Mr. Rose as they sat on the living room couch with gasoline from a red gasoline can.
[37] To overcome this fairly direct and straightforward account as testified to by Mr. Rose, the accused Kupec concocted a wholly different story! He had not entered the residence with Mr. Rose but went to the rear of the residence to relieve himself and thereupon discovered a can upon the back porch apparently filled with gasoline.
[38] I say apparently because the accused then stated that he had to ascertain if the gasoline can was filled with gasoline or perhaps some other fuel, like diesel. This removal of the cap provided a rationale for how the gasoline cap might have been placed improperly back onto the gasoline can in a manner that was less than secure. Thus, when the gasoline can was brought into the living room by the accused after the first confrontation and a further confrontation occurred, the use of the gas can as both a weapon and a shield caused accelerant to be flung hither and thither upon Tetreault, Rose, the accused, the room, and the couch.
[39] Crown counsel points out that this gas can at rear of the house on the cluttered back porch would have been difficult to see in the dark even if a person was totally sober. Why then if the accused wanted a bonfire would Mr. Kupec reach over the railing, grab the can of gas and return with it to the front porch when the fire pit was in the backyard closer to the back porch where the can was allegedly found? Why would the accused not mention that he wanted to have a bonfire to either Mr. Rose or Mr. Tetreault? Why after the initial confrontation and the subsequent smoke on the porch would the accused then return to the living room with this can of gas? Was the accused still pursuing this idea of a bonfire?
[40] Why would the accused, Kupec tell the complainant, Tetreault not to light up a cigarette if he did precisely the same thing back at his residence, knowing that he also had gasoline on his clothes?
[41] Why did the accused indicate that he left the residence with the empty gasoline can? Why keep the can? Why not just leave the empty gasoline at the residence? Furthermore, in keeping the gasoline can, why would the accused then get rid of it by throwing it over a fence on Shepherd St? In light of the version of events that the accused indicated had occurred back at the residence, there would be nothing of a sinister nature that involved the gasoline can except the accidental spilling of gasoline?
[42] In fact, the version of events as described by the accused would suggest that nothing untoward had happened or would happen to the residence or the complainant, Tetreault, as a result of any actions by the accused. In this version of events, there would no rationale for the throwing of the gasoline can on the other side of a fence on Shepherd St.
[43] Moreover, after the fire why is it that no one ever produced this empty can on the other side of the fence on Shepherd St.? Is this can still there? Has this red gasoline can been camouflaged perfectly for over a year without discovery? Is it just a coincidence that an empty red can of gasoline was found in the garage of the accused?
[44] ‘Piling on’ is a football expression that warrants a penalty to be assessed by a referee. I could go on and dissect the 5:28 phone call to Carly Bell that clearly indicates, at the very least, a significant awareness of a catastrophic occurrence at the Tetreault residence but suffice to state the obvious, where the evidence of the accused is at variance with the evidence of David Rose or others, the evidence of the accused, for reasons stated is totally and enthusiastically rejected.
[45] The second issue poses a far more difficult problem. I state the issue as follows:
- Is there evidence to conclude beyond a reasonable doubt, that the accused, Peter Kupec intentionally set fire to the complainant, Joshua Tetreault and as a result should be found guilty of attempted murder (Count #1)? As a corollary to this issue, was the dousing of the Witness, David Rose with gasoline sufficient to constitute an attempt to commit murder as reflected in Count # 5 ?
[46] This second issue arises because there is no direct evidence of what actually occurred in the residence after Mr. David Rose fled to Samantha Elliott’s residence. Given my conclusion with respect to the W. (D.) analysis, I find, beyond any reasonable doubt, that the accused, Peter Kupec purposely doused Joshua Tetreault and David Rose with gasoline. I can also conclude beyond any reasonable doubt that the accused, Peter Kupec was still in an enraged state of mind when he returned with the red can of gasoline after he had violently assaulting Joshua Tetreault minutes earlier.
[47] What becomes a little less conclusive is whether I can be sure beyond a reasonable doubt that it was the direct action of the accused that led to the inflaming of the complainant, Joshua Tetreault and his severe and significant injuries?
[48] Attempt murder is defined in s. 239 of the Criminal Code as follows:
(1) Every person who attempts by any means to commit murder is guilty of an indictable offence and liable
(a) if a restricted firearm or prohibited firearm is used in the commission of the offence of if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of
(i) in the caseof first offence, five years, and
(ii) in the case of a second or subsequent offence, seven years;
(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.
(2) In determining, for the purpose of paragraph (1)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:
(a) An offence under the section,
(b) an offence under subsection 85(1) or (2) of section 244 or 244.2; or
(c) an offence under section 220, 236, 272 or 273, subsection 279(1) or section 279.1, 344 or 246 if a firearm was used in the commission of the offence.
[49] To contrast this section, murder is found in section 229 of the Criminal Code as follows:
Culpable homicide is murder
(a) where the person who causes the death of a human being
(i) means to cause his death, or
(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;
(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or
(c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.
[50] Without any significant analysis, the differences between the two sections are apparent and obvious. Section 229 (a) (ii) adds a secondary definition that allows for “bodily harm that he knows is likely to cause his death and is reckless whether death ensues or not”.
[51] The expert witness, Mr. Hubbard, indicated that the accelerant gasoline could be ignited by a direct flame, such as a lighter, by static electricity, by the arcing of an electrical current and even by the use of a cell phone. To this list, I would add cigarette embers, as all the parties in this residence throughout this evening smoked cigarettes.
[52] Mr. Hubbard also concluded that the fire started not in the living room but in the computer room a few yards from the couch in a separate room.
[53] Of some weight and of some answer to the query of what and how the complainant was set afire, occurred at the curbside in front of the burning residence and the spontaneous statement of the complainant, Joshua Tetreault to Ms. Letourneau, a neighbour. In answer to her inquiry about what had happened, the complainant, Joshua Tetreault indicated that he was set on fire and that the perpetuator was “Pete”.
[54] There are, unfortunately, a few problems with this spontaneous statement in response to this inquiry. Firstly, Mr. David Rose, who was said by Ms. Letourneau to have urged Mr. Tetreault to respond to her query, has no memory of this conversation ever occurring or of ever speaking to Ms. Letourneau. He was, as both officers indicated, in a hysterical state.
[55] Secondly, Mr. Tetreault, in his dire and traumatic state, has no memory of this conversation or any other event that occurred that evening.
[56] Thirdly, Mr. Tetreault was in a highly intoxicated state as was Mr. Rose.
[57] Fourthly, “set me on fire” could mean many different things not the least being that because he was doused with gasoline and because he entered the computer room and because of an arcing of an electrical current or because of static electricity, he was set ablaze, in addition to the more obvious inference that the accused, Peter Kupec lit him on fire by placing a flame of a lighter onto his clothes (I note a lighter was found on the living room floor after the fire).
[58] Fifthly, I cannot explain how or why the fire is said to have originated in the computer room when the dousing of the gasoline of both Mr. Rose and the complainant, Tetreault occurred on the couch in the living room? Did the accused, Kupec pursue the complainant, Tetreault into the computer room dousing him with more gasoline there? Is there some alternative explanation for the origin or source of the fire? These are questions that remain unanswered.
[59] Finally, given that there were at least potentially four ignition sources that could have caused or ignited that gasoline on the person of the complainant, Mr. Tetreault, to conclude, based on the spontaneous statement of Mr. Tetreault that it was “Pete” who set him on fire, is insufficient to satisfy me beyond a reasonable doubt that the accused, Peter Kupec intentionally set fire to the complainant.
[60] This is a most difficult determination and one where I can safely say that other judges might conclude differently based on the same facts. Nevertheless, for reasons expressed, the accused, Peter Kupec is found, despite his probable guilt and his probable inflaming of the body of the complainant, Joshua Tetreault, not guilty of Count #1.
[61] With respect to Count #5, the dousing of the witness, David Rose with gasoline falls significantly short of an attempt murder conviction, although it probably constitutes a simple assault. Neither counsel for accused nor the Crown made any submissions with respect to any included offences concerning this count. Nevertheless, I conclude that a simple assault would be an included offence and I find the accused, Peter Kupec guilty of the included offence of simple assault.
[62] The third issue I have framed as follows:
- Did the accused, Peter Kupek intentionally or recklessly cause damage by fire using an accelerant, which fire did cause bodily harm to Joshua Tetreault as alleged in Counts #2 and caused damage to a dwelling house situated at 132 Alfred St. as alleged in Count # 6?
[63] Although neither counsel dealt extensively with the issue of the accused’s intoxication, I am obliged to consider this issue when I consider whether a sane and sober person would have conducted himself as did the accused, Peter Kupec in such a reckless manner. Obviously, the accused, Peter Kupec’s sobriety is certainly an issue as he had been drinking excessively on the evening in question.
[64] What is most significant, from my point of view, having thoroughly rejected the accused’s evidence about what occurred when he and Mr. Rose returned to the Tetreault residence, is not his description of the fight between Mr. Tetreault and himself, which if believed would certainly suggest a clear and operative mind, but his departure from the residence only to return a short time later with the red gasoline can.
[65] This behaviour was calculated and purposeful and defines, from my perspective, the level of intoxication present in the accused when he returned to the residence. Furthermore, the likely inference that he obtained this gasoline can from his garage on Campbell St. and then returned to douse both the complainant, Tetreault and Rose is strong evidence of a functioning but enraged mind.
[66] In the result, I have no difficulty in concluding beyond a reasonable doubt that the dousing of gasoline onto the person of the complainant, Joshua Tetreault and onto the couch and floor in the living room at 132 Alfred St. as observed and testified to by the witness, David Rose, was either an intentional act occasioned by the accused, Peter Kupec or at the very least a reckless act occasioned by the same accused.
[67] Most importantly, I find that the consequences of this intentional or reckless conduct directly resulted in the serious burns to the complainant, Joshua Tetreault and the complete destruction by fire of the dwelling house situated at 132 Alfred St.
[68] While the counts of attempt murder require a specific intent, both sections 433 (b) and 434 do not require this specific intent but “reckless” conduct. The definition of reckless is not defined in the Criminal Code. Nevertheless, in the unanimous decision of the Supreme Court of Canada in R. v. Sansregret a clear definition arises and is contrasted with civil test of negligence. The following passage at page 233 assists in clarifying this meaning as follows:
Negligence is tested by the objective standard of the reasonable man. A departure from his accustomed sober behaviour by an act or omission which reveals less than reasonable care will involve liability at civil law but forms no basis for the imposition of criminal penalties. In accordance with well-established principles for the determination of criminal liability, recklessness, to form a part of the criminal mens rea, must have an element of the subjective. It is found in the attitude of one who, aware that there is a danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists despite the risk. It is, in other words, the conduct of one who sees the risk and who takes the chance. It is in this sense that the term “recklessness” is used in the criminal law and it is clearly distinct from the concept of civil negligence.
[69] In Watts Manual of Criminal Jury Instructions, this same definition is used to define the elements of the offence under sections 433 (b) and 434 of the Criminal Code. At page 235 of the Sansregret decision Justice McIntyre contrasts willful blindness with the concept of reckless behaviour as follows:
Wilful blindness is distinct from recklessness because, while recklessness involves knowledge of danger or a risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arise where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it. In wilful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry.
[70] Counsel for the accused compares the actions of Kupec to the facts as found in the Newfoundland Court of Appeal decision in R. v. S.D.D. I vigourously disagree.
[71] There, a young person of 16 years set fire to the corner of a chip bag in a Convenience Store to remove the air so she could safely steal the bag of chips. When she appeared to have been seen by the store clerk, she and a friend went to another part of the store. When she returned, not only the chip bag she set on fire was burning but other bags were on fire as well. She and her friend then put out the fire and left the store. At some point, the fire began again causing a fire in the store and the young person was charged with arson.
[72] The Court of Appeal properly determined that in applying the test of recklessness, the accused must knowingly be aware of the probable consequences of those acts and nevertheless, proceeded recklessly in the face of the risk. In R. v. Martineau, Justice L’Heureux-Dube described the “probable consequence” as “objective mens rea”, which is not concerned with what was actually in the accused’s mind, but with what should have been there, had the accused proceeded reasonably.
[73] The Court of Appeal of Newfoundland in S.D.D. concluded that the act of setting fire to the corner of a bag of potato chips in the Convenience Store and then the extinguishing of the small resulting fire did not have the objective proof of knowledge of the probable burning of the building.
[74] Here the accused, Peter Kupec purposely doused the complainant with gasoline knowing that he either planned to light the complainant, Joshua Tetreault on fire, as is suggested in the count of attempt murder, or was reckless in this behaviour knowing that there was a perilous risk to the person of the complainant, Joshua Tetreault from the use of this accelerant and the grave danger he had exposed both the complainant to and the residence to through the use of this accelerant.
[75] The fact that I did not find that the accused, Peter Kupec had lit the complainant on fire by the use of s direct flame from his lighter, for example, does not avoid the reality that he created an objective serious and immediate danger to both the complainant, Josh Tetreault and the residence by dousing them in gasoline. The risk to both was apparent, that a fire could or would occur. This outcome came directly from the reckless actions and conduct of the accused, Peter Kupec.
[76] This was no accident but a purposeful reckless act occasioned by the accused, Peter Kupec and accordingly, there will be a finding of guilty on Counts # 2 and # 6.
- The remaining issue concerns the objective foresight required with respect to the risk of bodily harm to the complainant when he was doused with gasoline by the accused, Peter Kupec.
[77] Few if any submissions were made by counsel with respect to Count # 3. Submissions with respect to this Count, were, for the most part, subsumed within both counsel’s submissions to me concerning Counts #2 and Count # 6. Again, with respect to this Count, as was the effect of my analysis of Counts # 2 and # 6, there had to be present the objective foresight of the risk of bodily harm. I have so found this objective foresight of risk with respect to the two aforementioned Counts and thus there will be a finding of guilty to Count # 3.
[78] Count # 4 is not really issue driven but factually driven. I accept the evidence of the officer, Mark David who followed the Kupec motor vehicle from Savoy Street to where he effected a manoeuvre to cut off the Kupec motor vehicle on Proctor St. Neither sirens nor flashing police lights were sufficient to compel Kupec to stop. Only the cutting off of the Kupec vehicle and the eventual boxing of his vehicle persuade him to stop. There will be a finding of guilty with respect to Count # 4.
[79] In t