R. v. Kormendy, 2016 ONSC 6856

CITATION: R. v. Kormendy, 2016 ONSC 6856

COURT FILE NO.: CR-16-3627-0000

DATE: 20161121

Oral Decision: November 21, 2016

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty The Queen

– and –

Kenneth James Kormendy

Accused

Walter Costa, for the Crown

Evan Weber, for the Defendant

HEARD: October 17, 18, 19, 20, 21 & 24, 2016

REASONS FOR JUDGMENT

JUSTICE C. M. BONDY:

A. INTRODUCTION

[1] The accused, Kenneth James Kormendy (“Mr. Kormendy”), was in a romantic relationship with the complainant Sheri Rueda (“Ms. Rueda”). He was approximately 43 years of age at the time. The two were residing at 1680 Balfour Boulevard, Windsor, Ontario (“the house”). Ms. Rueda's then seven-year-old daughter is the complainant Isabel Rueda (“Isabel”), and Ms. Rueda's then one-year-old daughter is the complainant Felicia Bioh (“Felicia”). Ms. Rueda's then nine-year-old daughter Sarah Rueda (“Sarah”), who is not a complainant, also resided with them at the time, but she was not home during the relevant time frame.

[2] The Crown maintains that on Saturday, October 24, 2015, Mr. Kormendy reacted to Ms. Rueda's request that he move out of the house by pouring gasoline both around the room and on the outside of the door of Isabel’s bedroom where Ms. Rueda and Isabel had gone to bed for the night. The Crown asserts that Mr. Kormendy then lit the gasoline on fire with Ms. Rueda and her daughter trapped inside the room. According to the Crown, although the two managed to escape, Isabel sustained serious life-threatening burns over an extensive portion of her body. Ms. Rueda’s hands, arms, neck and hip were also burned by the fire. Felicia was sleeping in a part of the house that had not been doused in gasoline and was removed from the house by Mr. Kormendy prior to her suffering any physical injury.

[3] As a result, the accused was charged on an eight count indictment. The counts are as follows:

1. Count One - Attempted murder of Sheri Rueda by arson, contrary to section 239(1) of the Criminal Code.

2. Count Two - Attempted murder of Isabel Rueda by arson, contrary to section 239(1) of the Criminal Code.

3. Count Three - Attempted murder of Felicia Bioh by arson, contrary to section 239(1) of the Criminal Code.

4. Count Four – Arson with disregard for human life, contrary to section 433(a) of the Criminal Code.

5. Count Five – Arson causing bodily harm to Sheri Rueda, contrary to section 433(b) of the Criminal Code.

6. Count Six – Arson causing bodily harm to Isabel Rueda, contrary to section 433(b) of the Criminal Code.

a) Count Seven – arson causing damage to property, namely 1680 Balfour Boulevard, Windsor, Ontario, contrary to section 434 of the Criminal Code.

7. Count Eight - Possession of the incendiary materials and device for the purpose of committing an offence under section 433 of the Criminal Code, contrary to section 436.1 of the Criminal Code.

[4] The defence made the following admissions:

• Jurisdiction;

• Date, time and location;

• Identity of the accused;

• Continuity of exhibits;

• The authenticity and correctness of the reports of Mr. Mike Harrison from the Centre for Forensic Sciences;

• The authenticity of various text messages sent back and forth between the accused and the complainant. Defence and the Crown agreed that the actual times that the text messages occurred were five hours earlier than the times shown on Exhibit 1. That is because those times are expressed as Greenwich Mean Time while the house is located in the Eastern Time zone. It was not clear what, if any, impact daylight savings time may have had on that time difference;

• That 1680 Balfour Boulevard belonged to José Rueda during the relevant timeframe;

• That 1680 Balfour Boulevard was damaged in the fire; and

• That the damage to the house was at least $99,000.

[5] Mr. Kormendy acknowledged that he was in the house at the time the fire started. There was no suggestion nor was there any evidence that the fire had been accidental.

[6] It was Mr. Kormendy's evidence that it had to have been Ms. Rueda who started the fire. Mr. Kormendy testified that very shortly before the fire started, he had announced to Ms. Rueda that he was renewing his relationship with a former long-distance girlfriend. He implied that Ms. Rueda could not live with the thought of losing him and, accordingly, decided to kill herself, two of her daughters, and potentially Mr. Kormendy in the fire.

[7] In argument, defence counsel suggested that the possibility of this scenario and other possible scenarios raises a reasonable doubt.

B. EVIDENCE

1) Background Evidence as to the relationship between the complainant Ms. Rueda and the accused

[8] The evidence of Ms. Rueda and Mr. Kormendy was strikingly similar as to their relationship. They met online in early August of 2015. After one or two weeks of online exchanges, the two agreed to meet. They dated for about one or two weeks after the first meeting. Although Mr. Kormendy often slept at Ms. Rueda's house during that timeframe, it was not until about the beginning of September that the two agreed to move in together in the home in which Ms. Rueda was then residing. That was 1680 Balfour Boulevard.

[9] I reiterate the house at 1680 Balfour Boulevard is owned by Ms. Rueda's former spouse, José Rueda. She is currently an undischarged bankrupt. The plan was to transfer the house to Ms. Rueda after she received her discharge from bankruptcy.

[10] Mr. Kormendy and Ms. Rueda agreed that things went well at first. The two were happy together. Mr. Kormendy described them as “pretty much a couple.” At another point he described Ms. Rueda as his “live-in”. Consistent with that testimony, they also purchased a car together.

[11] Unfortunately, after about two weeks of living together the relationship began to deteriorate. By mid-September, discussions regarding Mr. Kormendy moving out had begun.

[12] There was consensus that it was primarily Ms. Rueda who was unhappy in the relationship. Three principal reasons were offered by Ms. Rueda.

[13] The first was that she found Mr. Kormendy “controlling”. Ms. Rueda explained that Mr. Kormendy did not want her visiting her friends and family during the daytime while he was at work. Ms. Rueda also said that Mr. Kormendy did not like her talking to her friends on the phone.

[14] The second was that she found Mr. Kormendy “clingy”. Ms. Rueda described clingy as being different than controlling. Ms. Rueda said that Mr. Kormendy was clingy because he wanted to spend all of his time with her. Ms. Rueda explained that she needed some time to be alone and with her friends and family. She explained that she had been physically abused in two prior relationships. Ms. Rueda, however, specifically denied that Mr. Kormendy had ever physically abused her.

[15] The third was that Ms. Rueda was getting pressure from her family, in particular her father, to have Mr. Kormendy move out. As an example, Ms. Rueda's birthday was on October 9. Ms. Rueda had been talking with her father on the phone about a birthday dinner. According to Ms. Rueda, her father overheard Mr. Kormendy saying that she “could not go” with her father. According to Ms. Rueda, her father had been angered by that and other conduct on the part of Mr. Kormendy.

[16] Mr. Kormendy denied that he was either controlling or clingy. This issue is more fully canvassed below.

[17] Mr. Kormendy did, however, acknowledge having some difficulty with Ms. Rueda's family. He explained that “moms can be hard on a boyfriend.” He also agreed that Ms. Rueda's father had caught him smoking and that he did not like smoking.

[18] A series of text messages were entered as Exhibit 1. Those text exchanges confirm that Ms. Rueda wanted Mr. Kormendy to move out. In those text messages Mr. Kormendy at several points in time seems to accept Ms. Rueda's wishes. However, within a short period of time he seems to resume his efforts to stay. This issue is more fully canvassed below.

[19] In cross-examination, Ms. Rueda testified that she wanted a break from the relationship. She was, however, prepared to continue to try and work things out after Mr. Kormendy had moved out. In cross-examination, Mr. Kormendy acknowledged that he believed Ms. Rueda was prepared to work things out after a cooling-off period.

[20] Mr. Kormendy testified that he was prepared to move out the same week that the events underlying these charges occurred. According to Mr. Kormendy, he had only stayed on because Ms. Rueda had asked him to stay an additional week. According to Mr. Kormendy, she had asked for assistance with Felicia’s baptism and Halloween.

2) The events of October 24 prior to Ms. Rueda's arrival home at approximately 9:00 p.m. and prior to the fire

[21] Ms. Rueda testified that October 24 had begun as a “regular day”. She and Mr. Kormendy agreed that her father had invited her and Isabel to lunch for a barbeque. Sarah was already at her grandmother's that day.

[22] Mr. Kormendy testified that Ms. Rueda had driven him to purchase six to eight “tall boy” cans of Budweiser beer prior to leaving for her father's.

[23] Ms. Rueda, Isabel and Felicia left the house around noon. Ms. Rueda and Isabel dropped Felicia off at her biological father’s house and continued to the home of Ms. Rueda's father in Amherstburg. The three had lunch and then dinner.

[24] At approximately 6:43 p.m., Mr. Kormendy texted Ms. Rueda and said, “if you decide to come home I need a lighter.” Mr. Kormendy explained at trial that he had misplaced his lighter but had found it sometime after that text message. Ms. Rueda acknowledged in cross-examination that Mr. Kormendy smokes approximately one package of cigarettes per day. She also acknowledged that that may explain his request for her to bring home a lighter that evening.

[25] In a text which follows, Ms. Rueda tells Mr. Kormendy that the matches are outside in the “letter holder”. Ms. Rueda testified that she and Mr. Kormendy often smoke on the back porch and that is why the matches were kept there. Mr. Kormendy goes on in a further text to explain that he had used those matches and that they got wet. It was apparently raining at the time that he tried to use them.

[26] In examination-in-chief, Ms. Rueda testified that there were only three potential sources of open flame in the house. These were the matches on the back porch, which according to Mr. Kormendy were not functional because they were wet, and two lighters. One of those lighters was described as being “pink” and belonging to her and the other as not functioning well. Mr. Kormendy acknowledged that the pink lighter that had been found on his person in the search incident to arrest was the pink lighter belonging to Ms. Rueda. I find it possible that the second malfunctioning lighter was potentially the lighter belonging to Mr. Kormendy, which, as said above, he testified he had relocated sometime after 6:43 p.m. on October 24. Importantly, there was no suggestion from anyone nor was there any other evidence to suggest that Ms. Rueda's assertion was incorrect, with the exception of Mr. Kormendy's assertion very late in his evidence that he had discovered other matches in the house that night. According to Mr. Kormendy's evidence, those matches would have been found after he had texted Ms. Rueda asking her to bring home a lighter. That evidence, however, contradicted the very clear information in his text message.

[27] Ms. Rueda and Isabel left Ms. Rueda's father's house at about 8:00 p.m. Ms. Rueda picked up Felicia and arrived home at about 9:00 p.m. Mr. Kormendy was there when she arrived. It is common ground that he had been drinking. Mr. Kormendy estimated that he had consumed approximately six to eight “tallboy” cans of beer that evening. He, however, denied being intoxicated.

3) The events of October 24 subsequent to Ms. Rueda's arrival home at approximately 9:00 p.m. but prior to the fire

a) The evidence of Mr. Kormendy

[28] Central to the theory of the defence’s case was Mr. Kormendy’s evidence as to a “long-distance relationship” which had occurred a “long time ago” with one Joanne Kormendi (“Joanne”). Mr. Kormendy explained that, as the spelling suggests, the two are not related notwithstanding the similarity of their last names. They had met by chance through Facebook. The relationship had ended because, according to Mr. Kormendy, he “was lazy going back and forth” to Toronto to visit with Joanne.

[29] Mr. Kormendy testified that he and Joanne had two separate telephone conversations on October 24.

[30] The first telephone call with Joanne had occurred at about the time Ms. Rueda was getting home.

[31] According to Mr. Kormendy, immediately upon Ms. Rueda entering the house, he again asked her to discuss the issue of him moving out. Ms. Rueda agreed to discuss the matter after she had put Felicia to bed.

[32] Mr. Kormendy testified that once Felicia was in bed, Ms. Rueda began the process of putting Isabel to bed. He testified that he “was trying to talk to Sheri” but because she was trying to put Isabel to bed “he hung back.” He was sitting in the living room at the time.

[33] Once Ms. Rueda had put Isabel to bed, she was sitting up beside Isabel in that bed reading her a story. The accused stated that he went into the room but only to ask each of them how their day was. In cross-examination, Mr. Kormendy acknowledged that he “wanted to get something off [his] mind” but added “sometimes you don't talk about things in front of the children.” He specifically denied any conversation about him moving out.

[34] Mr. Kormendy said that he then left the room.

[35] Mr. Kormendy testified that the second telephone call with Joanne occurred between 10:45 p.m. and 11:15 p.m. that night. The two talked for about 15 minutes. It was Mr. Kormendy's evidence that he and Joanne had decided to “get back together.”

[36] Mr. Kormendy said that he then went out to the front porch to have a cigarette. He demonstrated the process of lighting the cigarette and in doing so acknowledged that he had used his right hand to manipulate the lighter. He also maintained that he had used Ms. Rueda's pink lighter to light that cigarette.

[37] Mr. Kormendy said that he then returned to Isabel's bedroom. Similar to the evidence of Ms. Rueda, he described Isabel as asleep and facing the wall. Also similar to the evidence of Ms. Rueda, he described Ms. Rueda as laying on her side more or less facing the wall.

[38] It was his evidence that he then broke the news to Ms. Rueda. Mr. Kormendy testified that he told her he had made a mistake by dating her and that he should have stayed with Joanne. Mr. Kormendy agreed with a Crown suggestion that there was nothing pressing that would have caused him to make such a statement at that particular time. He said that the only reason was that he “just wanted to say it.”

[39] According to Mr. Kormendy, Ms. Rueda immediately became teary-eyed. Mr. Kormendy was left with the impression that her reaction had been prompted by the thought of losing him. He testified that her eyes welled up and that she gave him “that angry look” and “yelled” at him. She then asked him to leave the bedroom.

[40] Mr. Kormendy said he then went to the master bedroom and turned on the television. Without sitting or lying down, he immediately went out for another cigarette on the front porch. Approximately 10 minutes later, he went to the master bedroom without any further discussion. He estimated that he did so at about 11:30 p.m. In cross-examination, Mr. Kormendy specifically denied having heard or seen anything as he walked from the front porch back to the master bedroom.

[41] In cross-examination, Mr. Kormendy also said that he had not gone back into Isabel's bedroom because Ms. Rueda had asked him not to. He said he thought that would be best.

b) The evidence of Joanne Kormendi

[42] Joanne's testimony was somewhat consistent with that of Mr. Kormendy as to their relationship. She testified they had met on Facebook, that he had come to Toronto on one occasion, and that she had come to Windsor to see him “a few times.”

[43] According to Joanne, the two had continued talking to each other until about the time Mr. Kormendy's relationship with Ms. Rueda had begun. It was Joanne's evidence that she had stopped communicating with Mr. Kormendy out of respect for Ms. Rueda.

[44] Joanne testified that Mr. Kormendy had contacted her on October 21, 2016 in order to discuss renewing their relationship. According to Joanne, she had responded by saying that she was open to that on October 21, 2016. I reiterate that Mr. Kormendy had left the impression that the agreement to renew the relationship had been reached less than an hour prior to the fire.

c) The evidence of Ms. Rueda

[45] Ms. Rueda also testified that she put Felicia to bed in her crib.

[46] She said that Isabel had asked Ms. Rueda to sleep with her. That was because Isabel normally sleeps with her sister Sarah, who, as said above, was visiting with her grandmother that day. Ms. Rueda agreed and the two got ready for bed. Ms. Rueda read Isabel a book and the two finally went to bed at about 10:00 p.m.

[47] According to Ms. Rueda, Mr. Kormendy persistently came into Isabel's room to talk to her about her request for him to move out. She, however, did not want to talk about the issue in front of Isabel. Ms. Rueda kept asking Mr. Kormendy to leave. Ms. Rueda estimated in-chief that Mr. Kormendy returned to the bedroom approximately eight times to attempt to discuss the issue. That took place over the course of approximately one to one and a half hours.

[48] Ms. Rueda specifically denied in cross-examination that Mr. Kormendy had only come into the room on two occasions that evening. This issue is further considered below in the context of Ms. Rueda's credibility and reliability.

4) Evidence as to the fire

a) Introduction

[49] The evidence of Mr. Kormendy and Ms. Rueda as to the fire itself, and the events surrounding the fire, are irreconcilable. It follows that one and possibly both of those versions of events are partially or completely fabricated.

b) The evidence of Mr. Kormendy

The events leading up to the fire

[50] It was Mr. Kormendy's testimony that he had gone to the master bedroom to lie down and watch TV. He had not yet decided whether to go to sleep, and so he remained fully clothed wearing his running shoes, T-shirt and blue jeans as he lay on the bed. He described the shoes he was then wearing as his “yard shoes”. Mr. Kormendy confirmed that they were one and the same as the running shoes in Exhibit 32, which had been sent to the Center of Forensic Science (“CFS”) and which had tested positive for gasoline.

[51] Mr. Kormendy stated that he was “dozing in and out”, but specifically denied that he had fallen asleep. He estimated the door to be 90 percent closed, which he said resulted in an opening of two to three inches between the door and the door jam.

The fire starts

[52] Mr. Kormendy acknowledged having heard a noise he described as a “woosh”. He compared it to the noise made by a gas fireplace which ignites a short while after the gas has been turned on. Simultaneously, the bedroom door closed, hit the door jam, and then reopened approximately one inch. Mr. Kormendy testified that he was “startled” by these events.

[53] Mr. Kormendy testified that he immediately jumped out of bed and went to the central hallway where he encountered the fire. He denied having seen any gasoline container at the site of the fire in the hallway.

[54] Mr. Kormendy testified that he observed fire consuming the door jams. That is consistent with the evidence of Ms. Skye Lorimer (“Ms. Lorimer”) of the Office of the Fire Marshal and Emergency Management for the province of Ontario (“OFM”). Mr. Kormendy stated that as he approached the fire, he could also see that there were flames inside the room through a crack in the door.

[55] According to Mr. Kormendy, he walked toward the fire and reached out his right arm in an effort to open the bedroom door. He described it as then being “open a hair.” Mr. Kormendy explained that he wanted to try to “help out”, so he reached out his right hand toward the doorknob in an effort to open that door. He said that his hand had been burned as a result of that effort to assist.

[56] Mr. Kormendy, however, steadfastly denied having made any effort to call into the room or to otherwise communicate with anyone in the room. In cross-examination, he said his failure to do so was because he was unsure if anyone was then in that bedroom.

The escape

[57] Within seconds Mr. Kormendy escaped out of the front door of the house.

c) The evidence of Ms. Rueda

The events leading up to the fire

[58] Ms. Rueda testified that just as she was beginning to fall asleep, Mr. Kormendy entered the room for what, by my calculation, would have been about the fifth or sixth time. He knelt beside Ms. Rueda to talk to her. Ms. Rueda testified that he smelled like gasoline. When she asked Mr. Kormendy what the smell was, he said that he had started a campfire in the backyard using gasoline. She asked Mr. Kormendy to go wash his hands and he did.

[59] When Mr. Kormendy returned he still smelled like gasoline. Ms. Rueda testified that in exasperation she then told Mr. Kormendy that they were “over seeing one another.” She again asked him to leave. Mr. Kormendy did leave.

[60] Mr. Kormendy came back yet another time. According to Ms. Rueda, he again asked if the relationship was finished. Ms. Rueda explained that she was tired and wanted to go to bed so she said that it was. Ms. Rueda specifically denied Mr. Kormendy making any threats at any point in time.

[61] Mr. Kormendy left and returned for the final time. This time he had a gas can in his left hand. According to Ms. Rueda, the gas can looked very much like the five litre gasoline container used to fuel the family lawn mower.

[62] Mr. Kormendy began pouring gasoline onto the floor of the room and on the blankets and the bed in which Isabel was sleeping. Ms. Rueda said the gas had been poured for what she estimated to have been 15 seconds. She described the gas as coming out “pretty steady” at first and sporadically after.

[63] Ms. Rueda said that Mr. Kormendy had what she believed to be a lighter in his right hand. He was at the time attempting unsuccessfully to ignite the lighter. Ms. Rueda candidly acknowledged that she had never actually seen a lighter in Mr. Kormendy's hand, but she believed that it was a lighter because of the sound and sparks being produced. Ms. Rueda agreed with a defence suggestion that she had never seen Mr. Kormendy have difficulty operating a lighter. Ms. Rueda, however, explained that Mr. Kormendy at the time seemed to be in “kind of a daze.” I reiterate that Ms. Rueda had testified that there were at the time two lighters in the house. Her pink lighter which she said functioned properly and a multicolored lighter which did not.

[64] Ms. Rueda testified that she jumped up and led Mr. Kormendy out of the room. Once he was out of the room she closed the door and held the weight of her body against it so that he could not gain re-entry.

The fire starts

[65] Ms. Rueda testified that as she was holding the door, she heard the sound of gasoline being poured against the door and falling on the floor. She then heard what she described as a “swoosh”. A fire appeared under the door.

[66] Ms. Rueda's pants caught fire almost immediately because of the gasoline Mr. Kormendy had poured on her.

The escape

[67] Ms. Rueda first moved toward the window where she removed her pants. She then opened the window and pushed out the screen.

[68] Ms. Rueda then woke Isabel up and made her way back to the window. Ms. Rueda testified that it had taken some time to wake up Isabel as she is a very heavy sleeper. Once Ms. Rueda had exited through the window, she was coaching Isabel to follow her. The window was, at the time, engulfed in flames. As a result, when she reached up to take hold of Isabel and pull her out of the window, Ms. Rueda burned her hands. I found that evidence consistent with the injuries to Isabel. Ms. Rueda was not at the time aware of the extent of her or Isabel's injuries.

d) The evidence of Skye Lorimer

Introduction

[69] I reiterate that Ms. Lorimer is a fire investigator with the OFM. She was assigned by that office to investigate this fire.

[70] The Crown sought to qualify her as an expert in these proceedings. The proposed scope and purpose of her evidence relates to the origin of the fire, the cause of the fire and the circumstances of the fire. By the circumstances of the fire, the Crown meant the way the fire developed and spread.

[71] Defence counsel did not take issue with her qualification as an expert. I similarly found it appropriate to qualify her as an expert. Some highlights of my oral reasons given at trial in that regard are as follows.

[72] Ms. Lorimer has been a National Fire Protection Association certified fire investigator since 2005. She works as a supervisor and training officer with the OFM. She has investigated a total of 294 fires, 47 of which involved a total of 62 fatalities. She has also investigated 24 explosions and 41 serious injury fires. Ms. Lorimer has been qualified to testify as an expert regarding fires on five different occasions. Four of those fires involved flammable liquids. She also teaches a five-day program at the Police College involving fire investigation for police officers.

[73] For oral reasons given, I found that the preconditions or threshold requirements laid down by the Supreme Court of Canada in R v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, and reformulated by Doherty J.A. in R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, and most recently reformulated at para. 23 of the decision in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at paras. 23 and 32 had been met. I found her evidence necessary, relevant and absent any other exclusionary rules and that she is qualified to give expert evidence as to the issues delineated above. I also found at the second discretionary gatekeeping step of the qualification analysis that in balancing the potential risks and benefits of admitting the evidence, the benefits justify the risks. See: Abbey, at para. 78.

[74] Ms. Lorimer testified that she considered witness statements, police reports, firefighter’s notes, photographs taken by others and other similar evidence. In the end, however, the conclusions in her report were based upon what she saw at the scene and the application of her training to those observations. In other words, she did not make conclusions based upon any external information that was inconsistent with her own investigation.

Evidence as to the cause, origin and spread of the fire

[75] Ms. Lorimer concluded in-chief that the fire originated in the corner of the hallway where the doors to Isabel's bedroom and the bathroom intersect. Of interest, that is consistent with the evidence of Ms. Rueda and not inconsistent with the evidence of Mr. Kormendy as to where he had observed the fire.

[76] Ms. Lorimer also explained that since gasoline vapours are heavier than air the fire will follow gasoline vapours under the gap in the bottom of a doorway. She concluded that the fire had spread into Isabel's bedroom by following the gasoline vapours which had passed underneath that door in that manner. Again, that is consistent with Ms. Rueda’s evidence.

[77] Ms. Lorimer testified that she had relied upon the information given by Ms. Rueda in reaching her conclusion that the fire had started in the hallway rather than the bedroom. In cross-examination, she acknowledged that the fire could have been ignited on either side of the door and would have traveled to the other side by following the gasoline vapours through the space below the door. In any event, she expressed certainty that the fire had its origin at the base of the handle side of the bedroom door on one side or the other.

[78] After an exhaustive explanation of her investigation and accompanying evidence as to the mechanics of fires and explanations of the evidence she relied upon, Ms. Lorimer concluded that the cause of the fire was open flame coming into contact with gasoline vapours. The highlights of her conclusion are as follows.

[79] As to the issue of ignition being by open flame, Ms. Lorimer testified as to having “dug out the scene”, and finding no evidence of another accidental means of ignition. Accordingly, she concluded that the source of ignition was open flame.

[80] As to the first substance to ignite being gasoline vapours, she began by explaining that when there are several available fuel sources, the most volatile will always ignite first. That is because solids such as the wood floor and door jams cannot burn in their solid state. They require heat to transform the solid fuel into a vapour prior to ignition. She added that there was no evidence of the presence of a solid fuel that would result in these burn patterns. Ms. Lorimer testified that in the course of her investigation, she had ruled out all other possibilities.

[81] In this case, Ms. Lorimer testified that there was significant evidence upon which she could conclude that gasoline was present in the area where the fire started. This included the evidence related to the presence of a gasoline container, which is discussed below; the CFS finding of the presence of gasoline at the base of the bedroom door jam; a lateral burn pattern on the floor consistent with burning gasoline; and an hourglass shaped burn pattern in that corner. She explained that the physics of a fire will not result in such a burn pattern unless there is heat from the fire both at floor level, resulting from the burning of a more volatile fuel source than those generally available at the site, and at the ceiling level, results from rising hot gases.

[82] Her evidence as to the cause, origin and spread of the fire is also consistent with Ms. Rueda's version of events that evening. That evidence is also consistent with Ms. Rueda's evidence that she heard gasoline being poured on the outside of the door.

[83] Given her observations as to the hourglass pattern, Ms. Lorimer also concluded that the bedroom door had been closed at the time the fire had started. That conclusion was, in part, based upon the fact that the bedroom door had been completely consumed in the fire.

[84] Ms. Lorimer also concluded that gasoline had been spilled on Ms. Rueda’s track pants. That conclusion was based upon the reports of Mike Harrison of the CFS. That conclusion is also consistent with Ms. Rueda's evidence.

[85] Finally, Ms. Lorimer testified that the plastic remains identified by evidence markers numbers two and three in Exhibit 14 are polyethylene, and that approved gas containers are predominantly made of polyethylene. They had been discovered in the front yard just outside the front door. She also concluded that gasoline was identified in those items. In reaching those conclusions, she relied upon the reports of Mike Harrison of the CFS and the fact that a gasoline container vent lid was found in the front door threshold. That evidence tended to corroborate Mr. Marcos’s assertion that he had located a gasoline container at Isabel's bedroom door, that it had melted as he tried to remove it, and that in the end he kicked it off of the porch. That evidence also tended to corroborate the evidence of Mr. Muir and Mr. Molyon who also reported seeing that gasoline container directly outside Isabel's bedroom door. The evidence of Mr. Marcos, Mr. Muir and Mr. Molyon is more fully considered below.

[86] Prior to leaving the issue, Ms. Lorimer testified that there was no gasoline identified in a floor sample taken directly beneath that door. It was her evidence that the lack of gasoline is not inconsistent with her conclusion. She explained that the gasoline may have simply been consumed by the fire and, as a result, would not be detected by testing. That explanation is consistent with the notes in the CFS report.

[87] Ms. Lorimer concluded that the bedroom window had been opened at an early stage in the fire. That conclusion is consistent with the evidence of Ms. Rueda. She explained that oxygen is required for the fire to grow and so the fire will seek out oxygen. The burn patterns indicate that that is what occurred in this case. She also observed that the window screen on the ground outside of that bedroom window was free of charring, indicating that it had been removed before the fire had become intense. That conclusion is, again, consistent with Ms. Rueda's version of events.

[88] Defence counsel inquired whether the individual who put the flame to the gasoline in circumstances such as this would have injured themselves in the process. Ms. Lorimer responded that it depends very much on the circumstances, such as proximity to the flame and whether or not the individual carelessly spilled gasoline on themselves. She testified that burns to the individual's hands would not be uncommon and that singeing of the hair and burning of clothing was also possible. In this case, both Ms. Rueda and Mr. Kormendy suffered burns to their hands, and so this conclusion is consistent with both versions of events.

5) The events subsequent to the escape from the fire

a) The evidence of Ms. Rueda

[89] Once Ms. Rueda and Isabel were out of the house, they knocked on the door of the neighbours to the north. There was no response.

[90] Ms. Rueda noticed a taxicab on the street at the front of her home. It was dropping off a neighbour who lived on the opposite side of Balfour Boulevard. She told the cab driver there was a fire and that she needed help because her infant daughter Felicia was still in the house. The cab driver told her neighbour to call 911.

[91] Ms. Rueda observed the cab driver and her neighbour go into the house in search of Felicia. After some time Mr. Kormendy appeared at the front of the house with Felicia in his arms. Ms. Rueda testified that she said something to the effect that Mr. Kormendy started the fire and that he had tried to kill them. Mr. Kormendy responded by denying the assertion.

[92] Ms. Rueda, Isabel, Felicia and the neighbour retreated to the neighbour's front yard. Mr. Kormendy attempted to join them, which Ms. Rueda says she resisted.

b) The evidence of Mazin Marcos

[93] Mazin Marcos (“Mr. Marcos”) is the taxicab driver referred to by Ms. Rueda. Consistent with her evidence, Mr. Marcos testified that he was driving two fares to two separate addresses that night. Both were still in the car when he arrived at the scene. He described the front seat passenger as “John” and the passenger in the rear seat simply as “the rear seat passenger”. These two individuals were John Muir (“Mr. Muir”) and Ernest Malyon (“Mr. Malyon”). Their evidence is considered below.

[94] Consistent with Ms. Rueda's evidence, Mr. Marcos recalled a woman approaching him screaming and holding her arms in front of her. He could not recall whether he had observed injuries on her arms at the time. He did recall her saying that the house was on fire and that there was a child in the house.

[95] About the same time he noticed an individual in the driveway on the north side of 1680 Balfour Boulevard. He could not identify the individual as the accused. According to Mr. Marcos, he could remember a little but not much about that individual. He did believe that the person had tattoos on his arm, a goatee, long hair, and was wearing a T-shirt. To be clear, Mr. Kormendy did not have long hair at the time, although he did have a goatee. Mr. Marcos also said that he believed the person had been drinking but not to the point that he was “stumbling”.

[96] Using his Bluetooth Mr. Marcos contacted 911. He then entered the house with Mr. Muir in search of the child. Once Mr. Marcos and Mr. Muir were inside, Mr. Marcos observed smaller and larger fires throughout the portion of the house within his line of vision. He testified as to two doors that were either fully or almost fully closed on his left hand side just beyond the couch. According to the evidence heard, I find that consistent with the location of the origin of the fire described by Ms. Lorimer. The second door he referred to would be Isabel's bedroom door. He said that there was a gasoline container approximately one inch from that door and that both the door and the spout of the gasoline container were on fire. He attempted to remove the gasoline container but it melted somewhere near the front porch. According to Mr. Marcos, he then kicked the gasoline container off of the front porch.

[97] At point in time, Mr. Marcos noticed an individual emerging from the backyard holding what appeared to be a baby. He testified that it may have been the individual he had earlier seen in the driveway going to the rear of the house but could not say for sure.

[98] Mr. Marcos then re-entered the house to pull Mr. Muir outside. Once outside again Mr. Marcos noticed that the woman who he had initially seen was together with a baby, a little girl, and a small dog. The woman pointed at the individual who Mr. Marcos had seen with the baby and said something to the effect that he had set fire. To be clear, that event did not occur until Mr. Marcos had exited the house for the second time.

[99] Mr. Marcos told the individual not to leave. The individual responded by saying “I got burned too.”

[100] Mr. Marcos himself sustained injuries in the fire. His hair and eyebrows were burned. He also sustained blistering to his face and hands.

c) The evidence of John Muir

[101] Mr. Muir explained that he, Mr. Malyon and his brother Terry had been at the Chrymoto Club for the annual anniversary party. They had all done some drinking that night. Mr. Muir denied being intoxicated. His brother Terry had already been dropped off prior to arriving at the scene.

[102] Mr. Muir confirmed that upon arrival, a woman came to the door of the cab and said that her house was on fire and that her baby was inside. She was at the time wearing only panties and a T-shirt. The woman retreated to the lawn where she sat with her hands open and palms up.

[103] Consistent with the evidence of Mr. Marcos, Mr. Muir testified that he had gone through the front door of the house with Mr. Marcos in order to search for the baby. Once inside, he saw flames up the door jams inside the archway. According to the floor plan in evidence, Mr. Muir was describing the door jams in the hallway that Ms. Lorimer identified as the point of origin of the fire. He observed Mr. Marcos kick a gasoline container several times in the attempt to get it out of the house.

[104] Defence counsel recalled Mr. Muir's evidence to the effect that he believed the gasoline container may have been full because Mr. Marcos had kicked it several times. The implication being that not much gas had been poured from the container. I disagree with that suggestion for two overarching reasons. The first and most obvious is that it flies in the face of the evidence of both Ms. Lorimer and Ms. Rueda. It also flies in the face of Mr. Kormendy’s own evidence as to the intensity of the fire only seconds after it had started. The second reason is that Mr. Muir also postulated that Mr. Marcos may have been kicking the gasoline container in its corner, thereby explaining the slow movement. In other words, Mr. Muir did not purport to definitively state the gasoline container was full but rather only suggest it as a possible explanation for the failure of the can to move further when kicked.

[105] Mr. Muir testified that he was initially delayed in getting further into the house by Mr. Marcos. Mr. Marcos was in front of him and blocking the way. It was not until Mr. Marcos had removed the gasoline container from the house that Mr. Muir was able to penetrate further into the house. The importance of this evidence is further considered below in the context of the time Mr. Kormendy said had lapsed between when the fire started and when he reached the front yard after having rescued Felicia.

[106] Ultimately, Mr. Muir made his way to the rear of the house where he propped the storm door open to ensure an alternate point of egress. He believed that the glass in the back door was already broken when he arrived. That is important because Mr. Kormendy testified that he had broken the glass as he entered the rear door on his way to Felicia's bedroom. Mr. Muir then returned to the front door and asked if the baby was out yet. A male voice replied that the baby was out and so he left the house.

[107] Mr. Muir testified that at one point the woman who had initially approached the taxicab pointed to an individual and said something to the effect of “he tried to kill me, he tried to kill me.” Mr. Muir told the person not to leave and the individual responded, “I am not going anywhere.” Mr. Muir could not identify the accused as being that person.

d) The evidence of Ernest Malyon

[108] Mr. Malyon is known to his friends as Buddy. He lives directly across the street from 1680 Balfour Boulevard. Like his friend Mr. Muir, Mr. Malyon acknowledged having “had a few” that evening.

[109] Like the others, he stated that a woman had come to the door of the cab and said that her house was on fire and that her baby was inside. Like Mr. Muir, he said that the woman was wearing only her “undies”.

[110] Mr. Malyon testified that he also went into the house through the front door. Like the others he said that once inside there was “fire all over the place.” Like the others he testified as to the presence of a gasoline container.

[111] Mr. Malyon was making his way to the rear of the house when he heard footsteps behind him. He said that the individual “went right to the baby”, and then said “I've got the baby.” Although he believed that the individual left the building through the front door, he acknowledged in cross-examination that he could not say that with certainty. He added “it's hard to remember.”

[112] Like the others, Mr. Malyon said that the woman who had approached the taxicab at one point said “he tried to kill me” and pointed to an individual. Mr. Malyon could recall having said to the police to “make sure you hold onto this guy-he started the fire.” He could not recall whether it was the same individual he observed taking the baby from the house, nor could he recall whether it was the same individual as the accused.

e) The evidence of Constable Kenneth Dearsley

[113] Constable Kenneth Dearsley (“Constable Dearsley”) is a Windsor police constable who attended the scene that evening. He described Ms. Rueda and Isabel as screaming hysterically.

[114] Constable Dearsley also testified that the accused was standing five to ten feet away from them on the street. He was within the crowd that had gathered. He described the accused as being in “a bit of a daze”, smelling of gasoline, and having an injury to his right hand. In cross-examination, Constable Dearsley acknowledged that the dazed look may have been as a result of the stress related to the fire.

[115] In cross-examination, Constable Dearsley indicated that the smell of gasoline was coming from the accused’s body. He described it as a “strong smell”. He, however, did not notice that any part of the accused’s clothes were then wet with gasoline.

[116] Constable Dearsley also testified that he could smell alcohol on the accused’s breath but would not describe him as “intoxicated”.

[117] A search incident to arrest revealed a “pink Bic lighter” in the accused’s pants pocket. The officer checked the lighter and found it to be functional. In cross-examination, the officer agreed with the defence suggestion that the lighter had operated properly the first time that the officer tried it. He also agreed that there was no difficulty with its operation.

6) The injuries to Ms. Rueda, Isabel and Felicia

a) The evidence of Ms. Rueda

[118] I reiterate there was no evidence of physical injuries to Felicia.

[119] Ms. Rueda confirmed the photographic evidence of the injuries to Isabel which clearly demonstrate significant burn injuries to Isabel.

[120] She also confirmed the photographic evidence of the injuries to herself. Those photographs demonstrate significant burn injuries to her right hand and also burn injuries to her arms, neck and hip.

b) The evidence of Dr. Christopher George Scilley

Introduction

[121] Dr. Scilley was the treating physician for the injuries suffered by both Ms. Rueda and Isabel and continues to be Isabel's treating physician. Dr. Scilley is a practicing plastic surgeon.

[122] The Crown sought to qualify Dr. Scilley as an expert. The proposed scope and purpose of the evidence relates to the nature and extent of the injuries suffered by Ms. Rueda and Isabel, treatments given, the present state of the injuries, and the prognosis for each of Ms. Rueda and Isabel.

[123] Although the defence did not agree with his qualification as an expert, it did not strenuously oppose him being qualified as an expert.

[124] I found it appropriate to qualify Dr. Scilley as an expert. The following are some highlights of my oral reasons given at trial for that decision.

[125] He has been an associate professor of plastic and reconstructive surgery at the University of Western Ontario since 1989. He has also been the medical director of the burn unit at Victoria Hospital in London since 1989.

[126] For oral reasons given, I found his evidence necessary, relevant and absent any other exclusionary rules and that he was qualified to give that evidence. I also found at the second discretionary gatekeeping step of the qualification analysis that in balancing the potential risks and benefits of admitting the evidence, the benefits justify the risks.

The background evidence as to burn injuries

[127] Dr. Scilley explained that the skin consists of layers. The outer layer is called the epidermis and the layer beneath that the dermis. He explained that partial thickness burns are burns which penetrate through the epidermis into the dermis, but do not penetrate the dermis. These burns were formerly known as second-degree burns. These burns typically heal within approximately two weeks. Dr. Scilley also explained that full thickness burns are burns which have penetrated both layers. These were formerly known as third-degree burns. These burns take much longer to heal. In cases where the estimated healing time is greater than two to three weeks, skin transplant surgery is generally performed.

The injuries to Isabel

[128] Dr. Scilley testified that Isabel had received partial and full thickness burns to approximately 15 percent of her body. She also possibly received inhalation injuries. The areas most affected by the burns were her upper arms, hands, face, an area on her back and her lower extremities, in particular her feet.

[129] The initial focus of treatment was on her breathing and fluid resuscitation. Once Isabel had been stabilized, she underwent surgery to multiple parts of her body, including her arms, her two hands and her two feet. The purpose was to remove burnt tissue and replace it with skin harvested from unburnt areas of her body. That was necessary because scar tissue compromises movement and function. That is because scar tissue does not stretch in the same manner as healthy skin. This result is particularly acute in children because the scar tissue does not grow in the same manner as the healthy skin around it. In the case of children such as Isabel, continuing surgeries are necessary as a result. Even with the benefit of the anticipated surgeries, Isabel will never recover full function in her hands and feet. She will also have a long-term loss of sensitivity in her fingers, the tops of her feet, and her toes. Isabel currently has difficulties simply making a fist. The scars on the child's face will remain for the rest of her life. According to Dr. Scilley, these injuries will impact the child for the rest of her life.

The injuries to Ms. Rueda

[130] Dr. Scilley testified that Ms. Rueda had received burns that were generally partial thickness burns. It was his evidence that such burns are “quite painful”. Dr. Scilley estimated it had taken approximately two weeks for Ms. Rueda's hands to heal. The after effects, such as sensitivity and discomfort, could have lasted much longer. He said that although unusual, the pain and sensitivity could persist indefinitely.

7) The suggestion that Ms. Rueda may have started the fire.

[131] Defence counsel suggested that it may have been Ms. Rueda who had started the fire. Defence counsel put several suggestions potentially capable of supporting that hypothesis to Ms. Rueda.

[132] The first was a suggestion that when Ms. Rueda had broken up with the prior abusive boyfriend, she had asked the accused to “kick his ass”, and that she had similarly consulted her brother-in-law in that regard. Ms. Rueda denied that suggestion.

[133] The second was a suggestion that she may have started the fire to appease her father who she acknowledged does not like smoking and who was likely aware that Mr. Kormendy smokes. Ms. Rueda acknowledged that her father does not like smoking and he was likely aware that Mr. Kormendy smokes but denied that she would have acted out in this fashion to appease her father.

[134] The third was a suggestion that Ms. Rueda told Mr. Kormendy's mother that she had stopped taking her antidepressant medication prescribed by her family doctor. Ms. Rueda steadfastly denied that assertion. There was no evidence to suggest Ms. Rueda's denial was in any way incorrect. She also denied that the antidepressant medications she was prescribed adversely impacted her memory.

[135] I reiterate that the fourth was a suggestion that Ms. Rueda may have started the fire when she learned that Mr. Kormendy intended to get back together with his former girlfriend Joanne. Ms. Rueda denied any recollection of Mr. Kormendy telling her that he intended to get back together with Joanne.

C. ANALYSIS

1) Introduction

[136] I begin with the observation that there is no obligation for the accused to prove anything. It is the Crown who has the obligation of proving each element of the offence beyond a reasonable doubt.

[137] A reasonable doubt is one that logically arises from the evidence, or the lack of evidence. Proof beyond a reasonable doubt is more than proof of probable guilt. However, a reasonable doubt is not a far-fetched or frivolous doubt. Nor is it a doubt based on sympathy. It is a doubt based on reason and common sense. To be clear, it is nearly impossible to prove anything with absolute certainty. Crown Counsel is not required to do that. See: R v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at para. 36.

[138] Once an accused takes the stand, the evidence of the accused must be considered along with all the other evidence presented at trial. The proper approach in analyzing that evidence was set out by the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. At p. 758, Cory J. states the following:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[139] The decision in W.(D.) does not describe three sequential analytical steps, but rather three distinct finding of facts that the trier of fact can make when considering all of the evidence at the end of the case; namely, complete acceptance of the accused's exculpatory account (“step 1”), complete acceptance of the Crown witnesses' inculpatory account (“step 3”), or uncertainty as to which account to believe (“step 2”): see R. v. Thomas, 2012 ONSC 6653, at para. 23; and R. v. Edwards, 2012 ONSC 3373, 93 C.R. (6th) 387, at paras. 13-25. Accordingly, where there are credibility findings to be made on a vital issue, it is not necessary for the trier of fact to believe the defence evidence as to that issue in order to find the accused not guilty; rather, it is sufficient if that evidence, viewed in the context of all of the evidence, leaves the trier of fact in a state of reasonable doubt as to the accused's guilt: see R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 114.

2) The quality of the evidence

a) The defence evidence

Introduction

[140] I did not find Mr. Kormendy to be a credible witness. That is because I often found his testimony as to pivotal issues at odds with the preponderance of evidence that I believed. Also, the versions of events which he proposed were often either impossible or lacked common sense in the context of the preponderance of the evidence that I believed. I also found him both evasive and unresponsive while under cross-examination.

[141] Prior to reviewing the examples below, I would like to make two further observations.

[142] The first is that the evidentiary values of the various examples varied. I gave some more weight than others. Some in isolation could be explained as coincidence. However, even those examples were of some benefit in appreciating the picture painted by the totality of the evidence. In the end, my finding as to Mr. Kormendy's credibility was a product of the totality of the evidence rather than any one individual event.

[143] The second is that Mr. Kormendy, like many of the other witnesses, was exposed to a life-threatening fire that evening. I would expect anyone in similar circumstances to have a less-than-perfect recollection of peripheral details. I would, however, expect witnesses to remember the core facts as to what had happened that night. It follows that the inability of Mr. Kormendy to remember specific collateral details was not given the same weight as it may have received in other less stressful circumstances.

Mr. Kormendy's evidence as to the events immediately prior to ignition of the fire

[144] The two principal differences between Mr. Kormendy's and Ms. Rueda's versions of the events immediately preceding the fire are the number of times Mr. Kormendy entered the room and Ms. Rueda's reaction to what had been said the last time that Mr. Kormendy entered the room.

[145] It was Mr. Kormendy's evidence that he had only gone into Isabel's bedroom on two occasions that evening. I reiterate that it was his evidence that Ms. Rueda reacted very badly when he announced that he and his former long-distance girlfriend Joanne had agreed to renew their relationship. Mr. Kormendy’s evidence left me with the impression that he wanted me to believe that Ms. Rueda was so overwhelmed and distraught at the thought of losing him that she made an impulsive decision to kill herself and her two daughters.

[146] As to the number of times Mr. Kormendy entered the room, I find Mr. Kormendy's evidence lacks harmony with the preponderance of evidence. The text messages clearly demonstrate that during the immediately preceding days, and throughout the day and evening of October 24, Mr. Kormendy had been regularly texting Ms. Rueda, generally without any response. Those text messages make it clear that Mr. Kormendy was not prepared to easily accept Ms. Rueda's request for him to move out of the house. That repetitive behavior is consistent with Mr. Kormendy's evidence to the effect that he becomes “chatty” when he has been drinking, as he had been that night. That repetitive behaviour is also consistent with Ms. Rueda's description of Mr. Kormendy's controlling behaviour. That repetitive behaviour is also consistent with Ms. Rueda's text of October 22 where she says that she was going to come home but that he had started his pity text and she concludes “so I figured you'd be on me all night.” Mr. Kormendy acknowledged that he had immediately upon Ms. Rueda's arrival home that evening asked to again discuss the issue of him moving out and Ms. Rueda had agreed to. I find it difficult to believe Mr. Kormendy’s denial of any further discussion that evening in the context of the totality of that evidence.

[147] As to Mr. Kormendy's suggestion that Ms. Rueda became teary eyed and angry when he announced his reunification with his former girlfriend, I again find that assertion lacks harmony with the preponderance of evidence. Again, the text messages make it clear that Ms. Rueda wanted Mr. Kormendy out of her house. Ms. Rueda’s evidence left no question that she wanted him to leave. There was no evidence to suggest that Ms. Rueda’s romantic feelings for Mr. Kormendy were at all strong at the critical point in time. Mr. Kormendy himself acknowledged that he had been asked to leave and that he was in the process of making preparations for alternate accommodation. It simply defies common sense that Ms. Rueda would be upset enough to kill herself and her daughters at the thought of losing the very person she had been attempting to get out of her life for the then past six weeks, more or less.

[148] Finally, I reiterate that in cross-examination Mr. Kormendy also said that he had not gone back into Isabel's bedroom after what he described as his second entry into the room. He said that was because Ms. Rueda had asked him not to. Mr. Kormendy said he thought that would be best. I repeat my observation throughout these reasons that Mr. Kormendy had continued to pursue the issue on several occasions after becoming aware of Ms. Rueda's decision. As a result, I find it highly improbable that it was at this particular point in time that Mr. Kormendy finally decided to respect Ms. Rueda's wishes.

[149] I conclude that when considered in the context of the totality of the evidence considered below, Mr. Kormendy's version of the number of times he had come into Isabel’s room that evening, and what had occurred on the last of those occasions, was nothing more than an attempt to divert attention from himself by suggesting that it was Ms. Rueda who had potentially lit the fire.

Mr. Kormendy's evidence as to the ignition of the fire

[150] Ms. Rueda described the sound created by the ignition of the gasoline as a “swoosh” while Mr. Kormendy described it as a “woosh”. Notwithstanding the subtly different sounds described, I was left with no doubt that the two were talking about the same event. That was the ignition of the gasoline as a result of the vapours coming into contact with flame. I reiterate that this is consistent with Ms. Lorimer’s conclusions as to the ignition of the fire.

[151] In examination-in-chief and initially in cross-examination, Mr. Kormendy professed to a reasonably detailed recollection of where he was immediately prior to the fire. He specifically recalled that he was in the master bedroom and that he was not asleep. He said that he was dozing on and off.

[152] To the contrary, when he gave his video statement Mr. Kormendy stated on two separate occasions that he did not know where he was when the fire started. When confronted with that apparent contradiction in cross-examination, Mr. Kormendy's explanation was that it was not in his head at the time the police officer had asked him. I find that explanation questionable for two reasons. The first relates to the close temporal proximity between him being in that bedroom and the video statement. I find it difficult to believe that Mr. Kormendy has since grown a memory. The second is that the relevant point in time occurred prior to the fire. It follows that an inability to remember cannot be explained by the stress of the events that followed. To be clear, as said above, any inconsistency such as this regarding collateral details is far from conclusive as to Mr. Kormendy's credibility. That said, it is a factor to be considered in the context of the totality of the evidence.

[153] It was Mr. Kormendy's evidence that he was startled by the “woosh” that he heard at the point of ignition. He described it as a sound similar to that of a natural gas fireplace which ignites a while after the gas been turned on. Mr. Kormendy mentioned that sound on multiple occasions in examination-in-chief and cross-examination. The Crown pointed out that he had said nothing about that sound in the video statement. Again, Mr. Kormendy's only explanation was that it was not in his head at the time.

[154] Mr. Kormendy said that upon hearing the sound he immediately sprung from the bed and exited the master bedroom. He saw what he described as a large fire in the area of the hallway. Consistent with the evidence of Ms. Lorimer, he specifically mentioned that the door jams were on fire.

[155] I reiterate that he testified that as he has approached the fire, he could also see flames inside the bedroom through a crack in the door. Ms. Lorimer testified with certainty that the bedroom door had been closed during the fire. I believed Ms. Lorimer and I did not believe Mr. Kormendy.

[156] Finally, Mr. Kormendy said that he put his hand out through the fire and toward the doorknob in an effort to touch or open the door in order to assist Ms. Rueda and Isabel. His right hand was burned in the process. The believability of this portion of the sequence of events described by Mr. Kormendy is further considered immediately below in the context of Mr. Kormendy’s evidence as to his injuries, and again further below that in the context of where the fire started.

Mr. Kormendy’s evidence as to his injuries

[157] I find that Mr. Kormendy's explanation of the source of the injury to his right hand lacks common sense when considered in the context of Mr. Kormendy's other evidence.

[158] Mr. Kormendy testified that notwithstanding his stated purpose of assisting Ms. Rueda and Isabel, he had not called out to them in an effort to warn them of the fire. It was his explanation that he had not done so because he did not know whether anyone was in the room. That was because the door was almost completely closed.

[159] I make the following observations in the context of his injury regarding that explanation.

[160] The first is that it defies common sense that Mr. Kormendy would have put his arm directly in harm’s way thereby incurring burn injuries to his right arm if he did not know there was someone in that bedroom. Common sense dictates that he would have first called into the room to ascertain whether anyone was in danger prior to injuring himself attempting to open the door.

[161] The second is that if the door was slightly open as Mr. Kormendy maintained, it follows that he would not have to activate the doorknob in order to open the door. It further follows Mr. Kormendy would not have to extend his hand through the heart of the fire toward the doorknob as testified, but could have pushed the door anywhere in order to see into the room. To be clear, I did not believe Mr. Kormendy when he said the door was partially opened.

[162] The third is that for the reasons which follow below, I find that it defies common sense that he did not know Ms. Rueda and Isabel were still in that room.

[163] The fourth is that his explanation lacks harmony with what Mr. Kormendy said in the video statement. There, he told the police officer that he did not know how his hand had been injured. Again, I find it difficult to believe that Mr. Kormendy grew a memory as to that injury between the date of the video statement and the date of trial.

[164] Finally, I find that his injury is consistent with what Ms. Lorimer testified could be expected when the vapours emitted by gasoline are ignited by a flame being held in an individual's hand. I say that because of the manner in which Mr. Kormendy held his hand when he demonstrated how he would light the pink Bic lighter that was found in his pocket during the search incident to arrest.

[165] When considered in the context of the totality of the evidence, I find the explanation given for the burn at trial consistent with a convenient explanation conjured up between the date of the video statement and the date of trial, again intended to support his suggestion that it was Ms. Rueda who had started the fire.

Mr. Kormendy's failure to call into the bedroom

[166] There is another important dimension to Mr. Kormendy's failure to call into the bedroom. I reiterate that it was Mr. Kormendy's evidence that he did not know whether anyone was in the room and so he did not take any effort to warn the occupants of that room of the fire.

[167] That failure must be considered in the context of the other evidence at trial, including Mr. Kormendy’s evidence that he had gone to the bedroom door in an effort to assist Ms. Rueda and Isabel.

[168] As said above, the claim that he was unaware as to whether someone was in bedroom lacks harmony with Mr. Kormendy's own evidence and the preponderance of evidence that I believed. I reiterate that Mr. Kormendy had previously testified that he was aware that Isabel was asleep in that room and at the time facing the wall. Mr. Kormendy testified in cross-examination that he had not seen either of them leave that bedroom.

[169] Common sense dictates that if there was any chance whatsoever that anyone was in the bedroom where he had last seen Ms. Rueda and Isabel, the individual would call out in an effort to warn of danger.

[170] Consistent with that observation, Mr. Kormendy testified that his path from the fire around the north side of the house on his way to Felicia's bedroom took him right past Isabel's bedroom window. He testified that he could see smoke coming out of that window. Notwithstanding the sight of that smoke, and notwithstanding his evidence that he had previously observed fire within the room through a crack in the door, he did not stop to be of assistance. He did not even make the effort to call out as he ran by. Similarly, Mr. Kormendy testified that he went by that same window a second time once he had rescued Felicia. Again, he made no attempt to ascertain whether someone was still in the room, or to assist, or to call out.

[171] I did not believe Mr. Kormendy's evidence to the effect that he was unsure whether there was anyone in Isabel's bedroom. I find his continued failure to make any attempt whatsoever to warn Ms. Rueda and Isabel of the obvious impending danger consistent with the mindset of an individual who intended to kill them.

[172] That conclusion finds support in the fact that notwithstanding Mr. Kormendy had a cell phone in his pocket, he made no attempt to call anyone for help. Not the fire department, not an ambulance, and not the police.

[173] Prior to leaving this issue I would like to address defence counsel's suggestion that it was contrary to Mr. Kormendy's interests for him to testify that he was unsure whether someone was in the room. I disagree. If Mr. Kormendy admitted knowledge that Ms. Rueda and Isabel were in the room, he would have had to explain his failure to warn them of the fire either through the door or through the window when he later passed it on his way to the back of the house. He would also have to explain his failure to use his cell phone to call for emergency help.

Mr. Kormendy's evidence as to the rescue of Felicia

[174] There were two lines of evidence describing the sequence of events which occurred between the time that Mr. Kormendy and Ms. Rueda had heard the sound of the fire igniting and the point in time when Mr. Kormendy took Felicia from her crib and made his way to the crowd gathered in front of the house. They are irreconcilable.

[175] For the following reasons, I find Mr. Kormendy's version of that sequence of events impossible in the context of the preponderance of evidence and, accordingly, lacking in credibility.

[176] Mr. Kormendy said that immediately after burning his hand, he turned around and exited the front door. He testified that there was no one outside when he reached the front door. I took him to mean that the taxicab had not yet arrived and that no crowd had gathered during those intervening seconds

[177] He testified in-chief and during the first part of cross-examination that he immediately went to the rear door, which he kicked a number of times. After a short time he gained entry through the rear door by breaking the glass and turning the inside knob. He then went immediately to Felicia's room, which was a few feet from the back door. According to Mr. Kormendy, he then took Felicia from her crib and ran back through the back door to the driveway. Mr. Kormendy then walked up the driveway to the road where what he described in-chief as a “big crowd” of people had gathered “close to the front of the house.”

[178] Mr. Kormendy testified again and again that he was running the entire time and that he had never stopped. Mr. Kormendy had only stopped running after having exited the house and reached the driveway on its north side. Importantly, Mr. Kormendy testified with some certainty that it had taken him less than, but not more than, one and a half minutes to make the trip from his bedroom to the fire, to outside the front door, to Felicia's room, and back to the front of the house. He repeated that time estimate on several occasions.

[179] That version of events is irreconcilable with the version given by Ms. Rueda. Importantly, it presents a window of time that is much shorter than what would be required for the sequence of events described by Ms. Rueda and the other witnesses present. In other words, Mr. Kormendy's version of those events leaves some time unaccounted for.

[180] As an example, if Mr. Kormendy's version of events were correct, that crowd would have gathered in the less than one and a half minutes that Mr. Kormendy testified passed between the time he heard the ignition of the fire to when he returned to the front yard after rescuing Felicia. I find it difficult to believe that a large crowd could have become aware of the fire and gathered in front of the house in that very short timeframe.

[181] As another example, Mr. Kormendy acknowledged in-chief having heard someone in the house asking if there was anyone else in the house. That was consistent with the evidence of Mr. Malyon as to having met someone in Felicia's bedroom. I find that evidence consistent with Mr. Kormendy and Mr. Malyon having come into close proximity to one another in or near Felicia's bedroom. I reiterate that Mr. Kormendy stated there was no one in the front yard when he reached the front door. It follows that during the same timeframe that it took Mr. Kormendy to run from the front of the house to Felicia's bedroom, the taxi cab in which Mr. Malyon was riding would have to arrive, Ms. Rueda spot the cab and run across the street to it, Ms. Rueda tell the occupants of the fire and her baby inside, and the occupants of the cab respond to that information and make a decision to go in the house to save the baby. Mr. Malyon would then have to leave the cab, go through a house which was then on fire and with which he was unfamiliar, and meet Mr. Kormendy in Felicia's bedroom. The two timelines simply do not fit with one another.

[182] I am aware that later in cross-examination, Mr. Kormendy resiled from the position that he recalled hearing someone inside the house and instead took the position that he was unsure whether the individual who he had heard was inside or outside the house. I did not believe the new position taken by Mr. Kormendy in cross-examination. I concluded that Mr. Kormendy himself had then realized the impossibility of the timeline that he had described and the time it would have taken Mr. Malyon to meet him inside the house. Further, Mr. Kormendy himself stated several times that there was no one outside of the house in either the backyard or the north yard. Felicia's bedroom was at the rear of the house. It follows that there was no evidence of an individual outside the house that Mr. Kormendy could have heard. Accordingly, I find that the individual heard by Mr. Kormendy was inside the house at the time of that exchange.

[183] As another example, I reiterate that Mr. Marcos testified that subsequent to his arrival, but prior to going into the house, he had seen an individual with a goatee go down the driveway on the north side of the house toward the rear of the house. I reiterate that the accused at the time had a goatee.

[184] I am aware that Mr. Marcos also stated the individual had long hair, which Mr. Kormendy did not have at the time. Further, Mr. Marcos was unable at trial to identify that individual as being the accused. In addition, I am aware that Mr. Kormendy denied that was him. Notwithstanding, I find it quite possible that the individual was Mr. Kormendy. I say that for three reasons. The first is, as Mr. Kormendy testified, that was the path that he had taken that evening. The second is that there was no evidence of anyone else in that driveway during the relevant timeframe. The third is that it would have put Mr. Kormendy in Felicia's bedroom within the same timeframe as Mr. Malyon.

[185] While on the evidence before me I cannot say definitively where Mr. Kormendy was between the ignition of the fire and the point in time where he took Felicia from the crib, I have no reasonable doubt that his primary explanation does not account for all of the time that had to have passed between the ignition of the fire and the time he arrived in the front yard with Felicia.

[186] Accordingly, I find that Mr. Kormendy misrepresented where he was during that timeframe, and I find that he was somewhere else for a portion of that time.

[187] Consistent with that conclusion, I observe that after some time under cross-examination, Mr. Kormendy resiled from his position that he had not spent any time in the front yard after leaving the house and before going to the rear of the house to rescue Felicia. I find his second version of events consistent with the preponderance of evidence. That second version is also consistent with the Crown's theory of the case. That is that Mr. Kormendy stopped somewhere in the front of the house and had no intention of returning to rescue Felicia or anyone else. It was not until he realized that others would be going into the house to save Felicia that he himself went to the rear of the house and on to Felicia's bedroom. I find his decision to re-enter the house was consistent with Mr. Kormendy attempting to put distance between himself and an intention to kill Felicia and perhaps also Ms. Rueda and Isabel.

Mr. Kormendy's evidence as to the presence of a gasoline container

[188] Mr. Kormendy also specifically denied having seen the gasoline container in the hallway. Of interest, he said he had traveled six to seven feet toward the fire after exiting the master bedroom. According to the floor plan, that would have put the gasoline container almost directly at his feet. I again find it curious that an individual confronted with a raging fire would not have noticed a container of volatile fuel, either as he was approaching that gasoline container or as he stood with it at his feet. While I am aware that the fire situation was no doubt stressful, each of the three other individuals who had entered the house and proceeded to that hallway area had specifically noticed the gasoline container. Common sense dictates that a gasoline container located within or very near to the fire would gain the attention of an onlooker. That is because of the obvious catastrophic result which would flow from the ignition of the fuel within that container. In other words, the location of that gasoline container was not a collateral fact that would potentially go unnoticed.

Mr. Kormendy's explanation for the “strong” smell of gasoline observed by Constable Dearsley and Ms. Rueda

[189] I reiterate that Constable Dearsley specifically recalled a “strong smell” of gasoline on Mr. Kormendy's body at the time he was being arrested. That evidence, which I believed, is consistent with that of Ms. Rueda.

[190] I reiterate that gasoline was found on Mr. Kormendy's shoes by the CFS.

[191] Consistent with that finding, Mr. Kormendy agreed that the smell of gasoline was from his shoes. It was initially his evidence that while working on the lawn mower the day before, he had turned the lawn mower on its side to work on it. While it was on its side, he was supporting it by placing his shoes underneath it. He said that gasoline had dripped onto his shoes from what he described as the small vent on the lawn mower gasoline tank. Of interest, Ms. Rueda acknowledged in cross-examination that it was Mr. Kormendy who would cut the grass and that the lawn mower had been giving him trouble. She acknowledged that she had seen him with the lawn mower on its side. Finally, she acknowledged that when the lawn mower is on its side it sometimes leaks gasoline.

[192] For the reasons which follow, while I believe that Mr. Kormendy did have gasoline on his shoes that night, I did not believe Mr. Kormendy's explanation for that gasoline accounting for the “strong smell” of gasoline described by both Constable Dearsley and Ms. Rueda. The following are my reasons.

[193] The first is that Mr. Kormendy testified the repairs had been conducted on Friday, October 23, and not Saturday, October 24. That would make it more than 24 hours prior to the events in question. He had also lit a bonfire on Friday night using gasoline. Mr. Kormendy specifically denied having come into contact with any other gasoline in the interim. Both the text messages and Mr. Kormendy's evidence at trial confirmed that the clothes that he was wearing during the day, Saturday, had been washed that evening because he had been caught in the rain. In other words, that repair activity and bonfire could not explain any gasoline on any part of this clothing other than his shoes. Consistent with that observation, the CFS investigation had not found any traces of gasoline on the shirt and pants that Mr. Kormendy was wearing at the time he was arrested. As a result, the only thing Mr. Kormendy was wearing that may have had gasoline spilled on it the night before or which could have come into contact with gasoline was his shoes. As said above, I find that small amount of gasoline could not explain the strong smell described by Constable Dearsley and Ms. Rueda.

[194] The second and perhaps most important reason is that there was no evidence that Ms. Rueda had smelled gasoline on Mr. Kormendy prior to the third from last time that he entered Isabel's bedroom that night. That evidence is consistent with the conclusion that the source of the “strong smell” of gasoline occurred immediately prior to the fire having been lit. In other words, Mr. Kormendy had come in contact with gasoline after he had worked on the lawn mower but immediately before the fire had started.

[195] The third is that in cross-examination, Mr. Kormendy resiled from the proposition that he had been using his feet to support the lawn mower while it was on its side. He said that it was supported by its handle. He said that his shoes were simply up against the lawn mower. If this was the case, I do not find it a stretch to conclude that not much gasoline could have dripped on Mr. Kormendy’s shoes during that repair operation. Such a small amount of gasoline could not account for the strong smell described by Constable Dearsley and Ms. Rueda.

[196] The fourth is that Mr. Kormendy testified as to a shower late in the day on Saturday. It follows that the smell could not have come from gasoline on his body as a result of the repairs conducted the day before.

[197] The fifth is that Mr. Kormendy specifically denied in cross-examination that his shoes had become “infused” with gasoline as he was repairing the lawn mower. That evidence is inconsistent with the gasoline spilled during the repair process being the sole source of the strong smell of gasoline described by Ms. Rueda and Constable Dearsley

[198] The sixth is that even if Mr. Kormendy had poured gasoline on shoes while repairing the lawn mower, much of it would have evaporated over the following day.

[199] As a result, I find that the strong smell of gasoline described by Constable Dearsley and Ms. Rueda was consistent with Mr. Kormendy spilling gasoline on his shoes, and/or stepping in the gasoline that he had poured on the floor, and possibly also with his spilling gasoline on exposed parts of his body such as his hands while handling the gasoline container in the timeframe immediately preceding the fire

Mr. Kormendy's conduct during the relationship

[200] I reiterate that Ms. Rueda testified that two of the three primary reasons underlying her request for Mr. Kormendy to move out were his “controlling” and “clingy” conduct.

[201] Mr. Kormendy knew precisely what Ms. Rueda meant by the words “controlling” and “clingy”. I reiterate she had testified as to what those terms meant to her. Mr. Kormendy was specifically asked in cross-examination whether his conduct met the definition of those words given by Ms. Rueda. Mr. Kormendy steadfastly denied that his behaviour was either.

[202] I rejected Mr. Kormendy's denial that his conduct was controlling or clingy as those terms had been defined by Ms. Rueda.

[203] As to Mr. Kormendy being “controlling”, I reiterate that Ms. Rueda testified that by that she meant that Mr. Kormendy did not want her visiting her friends and family during the daytime while he was at work. Mr. Kormendy also did not like Ms. Rueda talking to her friends on the phone.

[204] In the 19 pages of Exhibit 1 there are slightly less than 200 text messages displayed. Of those, approximately 75 percent were initiated by Mr. Kormendy and 25 percent by Ms. Rueda. On one occasion Mr. Kormendy sent 10 texts in a row without a reply. I find that conduct inconsistent with a mutual conversation or relationship. Mr. Kormendy was clearly driving that interaction. I also observed that there was no suggestion that the record of text messages was in any way inaccurate. I find that those text messages tend to support Ms. Rueda's assertions that Mr. Kormendy was controlling and tend to contradict Mr. Kormendy's denial. The following are examples.

[205] The first is that in one text message, Mr. Kormendy said, “you should go with your man before your friends.” That language fits precisely within the definition of controlling given by Ms. Rueda. When that language was put to Mr. Mr. Kormendy, he denied the obvious and maintained that he is not controlling within Ms. Rueda's definition, but rather that he has “strong opinions”.

[206] Similarly, in cross-examination, Mr. Kormendy candidly acknowledged that he had some objection to Ms. Rueda going out with her friends, although he maintained that he did not object to her meeting with her family members. Again, that conduct fits within the definition of controlling put to Mr. Kormendy.

[207] The second is that on October 22, Ms. Rueda texted Mr. Kormendy and said, “you need control but I told you I'm very independent…” Mr. Kormendy responded, “and I'm changing.” Mr. Kormendy steadfastly maintained that his response was not to the immediately preceding question but rather a response to another matter that had been discussed at another point in time. Given the close temporal proximity of those two texts, I find Mr. Kormendy's explanation defies common sense. I find it obvious that by that response Mr. Kormendy had acknowledged that he is controlling. I also find that he was attempting to convince Ms. Rueda that he was changing his controlling conduct in an effort to continue living in her house.

[208] As a third example, later on October 22, Mr. Kormendy texted, “we are both controlling whether you agree or not.” I find that to be a clear admission of the controlling conduct described by Ms. Rueda.

[209] Prior to leaving the issue of Mr. Kormendy’s controlling behaviour, I reiterate that Ms. Rueda testified that Mr. Kormendy had told her that she could not go with her father for a birthday celebration. I believed Mr. Rueda’s evidence in that regard. I cannot think of any circumstances in which that conduct would be anything but controlling.

[210] As to Mr. Kormendy being “clingy”, I reiterate that by that Ms. Rueda meant that he wanted to spend all of his time with her. Ms. Rueda explained that she needed some time to be alone and with her friends and family.

[211] In cross-examination, Mr. Kormendy was asked whether he is “clingy” and he steadfastly denied that assertion. At one point he answered the question by saying that he “likes to be around people” and added that “no one is happy when a relationship ends.”

[212] On October 22, Ms. Rueda texted that she wished Mr. Kormendy could have been somewhat normal instead of always so clingy. Mr. Kormendy responded, “I was changing that Sheri.” I, again, find it obvious that by that response Mr. Kormendy acknowledged that he was clingy and he was aware of Ms. Rueda's objection to that conduct. Again, I find that he had vowed to change in an effort to continue living in her house.

[213] In the end, I found Mr. Kormendy to be a controlling and clingy individual as had been asserted by Ms. Rueda.

[214] I also found him to be relentless in his attempts to convince Ms. Rueda to let him stay.

[215] Consistent with that observation, Mr. Kormendy testified that he had been aware for some time that Ms. Rueda wanted him to move out so that she could have some space. Although from time to time Mr. Kormendy through the exchange of text messages expresses a willingness to comply with that request, he inevitably reverts to an attempt to convince Ms. Rueda to allow him to stay. As an example, Mr. Kormendy texted Ms. Rueda and said, “come home hun.can make you happy.” That text was earlier in the day on the very day the fire had been set. That conclusion also finds support in Ms. Rueda's text of October 22. There she said, “I was gonna come home but you started your pity text so I figured you'd be on me all night.”

[216] Importantly, I found Mr. Kormendy's persistent and continuous efforts at trial to distance himself from that conduct were consistent with an attempt to mask his personality from myself as the trier of fact.

[217] I also found Mr. Kormendy’s unwillingness to accept Ms. Rueda’s decision for him to move out to be a potentially dangerous combination when considered in the context his controlling conduct.

Mr. Kormendy's evidence regarding Joanne Kormendi

[218] I reiterate that Mr. Kormendy maintains that in a telephone call which occurred between 10:45 p.m. and 11:15 p.m. on October 24, he and Joanne had agreed to “get back together”. He maintained that when Ms. Rueda heard the news her eyes welled up with tears, she began to cry and she became angry asking him to leave the room. I reiterate the defence implied that it had been Ms. Rueda who ignited the gasoline, presumably as a result of hearing the news that Mr. Kormendy was leaving her to reunite with Joanne.

[219] I find that proposition lacks harmony with the preponderance of evidence. The following are examples of why I came to that conclusion.

[220] The first is that on several occasions in the video statement, Mr. Kormendy suggested to the investigating officer that they should be looking to Ms. Rueda as a suspect. He was asked several times why she would be a suspect. Notwithstanding those multiple opportunities, Mr. Kormendy never mentioned any conversation with Ms. Rueda regarding Joanne that evening. Importantly, that conversation is central to the defence hypothesis that Ms. Rueda had a motive to light the fire. To the contrary, in that video

statement Mr. Kormendy specifically described Joanne as a “friend”. In other words, there is no suggestion of a then current romantic relationship as of the time of that interview. It is difficult to escape the conclusion that Mr. Kormendy conjured up this story sometime between the date of that video statement and the date of trial for the express purpose of deflecting attention to Ms. Rueda.

[221] The second is that during his video statement, Mr. Kormendy told the police officer that he had asked Ms. Rueda if she was coming to bed to sleep with him that night and that Ms. Rueda had responded that she would. That statement is irreconcilable with Mr. Kormendy’s evidence as to Ms. Rueda’s reaction to having been told Mr. Kormendy was leaving her.

[222] The third is the timing of the announcement that Mr. Kormendy was getting back together with Joanne. I reiterate that Mr. Kormendy had left the impression that the arrangement for him and Joanne to get back together had been reached less than an hour prior to the fire. I find that evidence as to the timing of his arrangement with Joanne convenient to Mr. Kormendy's version of the events immediately preceding the fire. That evidence is also inconsistent with that of Joanne who testified that the arrangement had been reached on October 21, 2016.

[223] Given the stark difference between the evidence of Mr. Kormendy and the evidence of Joanne, it is unclear whether that agreement was ever reached and, if so, when it was reached. I reiterate that I was unable to ascertain whether Joanne was a credible witness. She did not give any evidence that was internally inconsistent, but, as said above, it was inconsistent with that of Mr. Kormendy.

[224] On the frail evidence before me, I am unable to ascertain which, if any, version is correct. In any event, I do not find the evidence as to the rekindling of the relationship with Joanne of much assistance to Mr. Kormendy.

Conclusions as to Mr. Kormendy's evidence

[225] For the reasons above, I did not believe Mr. Kormendy’s evidence as to the core issues of what happened that night, either when his evidence was considered in isolation or when it was considered in the context of the totality of the evidence. Simply put, I did not find him at all credible.

[226] Further, for the reasons above and below, I was not left with any reasonable doubt by Mr. Kormendy's evidence as to the core issues in this trial, either when that evidence was considered in isolation or when it was considered in the context of the other evidence at trial.

b) The evidence of Sheri Rueda

Introduction

[227] The evidence of Sheri Rueda was less than perfect. The defence raised several issues potentially related to Ms. Rueda's credibility and reliability.

Inconsistencies with what Ms. Rueda had said on other occasions

[228] There were occasions when the evidence at trial differed from what Ms. Rueda had said on prior occasions about the same events. For the following reasons, I did not find any of these inconsistencies either considered in isolation or in the context of each other and/or the totality of the evidence to be indicative of a lack of credibility.

[229] Perhaps the most important inconsistency was her professed recollection at trial that when Mr. Kormendy had come into the bedroom for the final time with the gasoline container and lighter in hand that she had “led him” out of the room. To be clear, it was her evidence that he had been removed from the room and that she had never left the room in that process. At the preliminary inquiry, Ms. Rueda had on two separate occasions expressed a recollection of having pushed him out of the room. Pushing someone and leading someone are different things.

[230] I begin with the observation that I agree with the defence proposition that if Ms. Rueda had less than a perfect memory, she should have simply said so. That said, I did not find this inconsistency to be fatal to Ms. Rueda’s credibility. There are several reasons that I come to that conclusion.

[231] The first is that nothing turned on this particular issue. It does not matter whether she pushed him or led him out of the room. In other words, Ms. Rueda had nothing to gain by lying about this particular issue.

[232] The second is that, as observed above in the context of Mr. Kormendy evidence, Ms. Rueda was at that moment in a particularly stressful situation. According to her testimony, she had been doused with gasoline and was being confronted with an individual who she believed possessed a lighter and who she believed was attempting to ignite the gasoline. I find that anyone in that situation would likely not be focused on the subtleties of the moment.

[233] As another example of a potential inconsistency as to what Ms. Rueda had said about the same event on different occasions, defence counsel pointed out that in-chief Ms. Rueda estimated Mr. Kormendy had returned to the bedroom approximately eight times to attempt to discuss the issue. Defence counsel put the transcript of the preliminary inquiry to Ms. Rueda. There, she had estimated he came back in the room approximately four to five times. Ms. Rueda explained that he had come back into the room four to five times prior to Mr. Kormendy coming in smelling of gasoline and three times after that. In other words, the gasoline smell represented a fundamental change in the events of the evening. I found that explanation reasonable.

Inconsistencies with other evidence

[234] Defence counsel put the transcript of Isabel's video statement to Ms. Rueda. There, Isabel purportedly states that Mr. Kormendy had entered the room hiding something in his hand, and that her mother had an angry face and was talking angry. Defence counsel suggested that language contradicted Ms. Rueda's evidence that she had not been “yelling” at Mr. Kormendy or expressing anger with him that night. I make the following observations regarding that assertion.

[235] The first is that the statement referred to was taken from a seven-year-old child several months after she had experienced what can only be described as severe trauma. The statement was never subjected to cross-examination or other questioning which may have given context to the child's words, or tested its reliability. The second is that according to Ms. Rueda, Mr. Kormendy had come into the room on approximately eight occasions that evening. For the reasons above, I believed that evidence. Isabel had fallen asleep after what I estimate to have been the third or fourth entry into the room. Again, I believed Ms. Rueda's testimony in that regard. Consistent with that evidence, Mr. Kormendy could not possibly have had something as large as a gasoline container hidden in his hand at any point in time when Isabel would have been awake and could have observed him. It follows that whatever the child may have observed had occurred at some point prior to the final words which had been exchanged by Mr. Kormendy and Ms. Rueda before the fire.

[236] Ms. Rueda did in cross-examination acknowledge that she was angry with Mr. Kormendy that evening because he would not let her go to sleep. Ms. Rueda did not deny that her language may have been somewhat terse. She, however, did deny having “yelled”.

[237] I make the following observations regarding Ms. Rueda's evidence in that regard. The first is that I do not find her answers in cross-examination strikingly different than those given during her examination-in-chief. In examination-in-chief, I had been left with the impression that she was fed up with Mr. Kormendy constantly coming into the room to discuss the issue of his moving out. That was the reason Ms. Rueda had given for finally telling Mr. Kormendy the relationship was over. Further, I find terse language and yelling to be different things. I believed Ms. Rueda's evidence as to her demeanour that evening. There was nothing upon which I could conclude that Ms. Rueda purposely attempted to mislead the court in that regard, nor had I been misled. My impression as to her demeanour that evening was not materially different at the conclusion of examination-in-chief than it was at the conclusion of cross-examination.

Conclusions as to Ms. Rueda's credibility and reliability

[238] I agree with defence counsel that there were a few inconsistencies in what Ms. Rueda had said about the same thing on different occasions.

[239] The occasions when there were discrepancies were, however, very isolated. In other words, they were not part of a pattern of inconsistency but rather a rare exception to a pattern of consistency.

[240] Each of the discrepancies related to issues that had little or no bearing on the ultimate outcome of this trial. They were all related to collateral and unimportant issues.

[241] In conclusion, I found Ms. Rueda's evidence to be almost always internally consistent and consistent with the preponderance of evidence that I believed. I found that her evidence as to the core issues was always consistent. I also found her evidence was logical and consistent with common sense.

[242] As a result, I found her to be a credible witness.

c) The evidence of Dr. Christopher George Scilley

[243] I found Dr. Scilly to be a reliable and credible witness. His evidence was internally consistent and consistent with the preponderance of other evidence that I believed.

[244] Dr. Scilly did not come across as an advocate, notwithstanding his involvement with Ms. Rueda and Isabel. Rather, he came across as a dispassionate, objective and neutral third-party observer.

d) The evidence of Skye Lorimer

[245] I similarly found Skye Lorimer to be a reliable and credible witness. Again, I found her evidence internally consistent and consistent with the preponderance of evidence that I believed. I also found that she testified in a dispassionate, objective and neutral fashion.

e) The evidence of Mazin Marcos

[246] I begin with the observation that there were several important issues that Mr. Marcos was unable to recall. He, however, generally acknowledged the same when that was the case.

[247] I am aware that on one occasion, Mr. Marcos testified as to a belief that the couch had some fire on it when he entered the house. I am also aware that that evidence was contrary to Ms. Lorimer's findings. I find that Mr. Marcos was wrong as to that testimony. I, however, did not give excessive weight to that error for three overarching reasons. The first was that this inconsistency was a very isolated incident. The second is that nothing turned on the evidence. In other words, it is related to a collateral and unimportant issue. The third was that, like Mr. Kormendy and Ms. Rueda, Mr. Marcos was in a very stressful situation that evening.

[248] In the end I found Mr. Marcos to be a credible witness. I found his evidence as to the core issues of what happened that night consistent with the preponderance of evidence that I believed. I also found his evidence reliable as to the core issues, notwithstanding that there were some inconsistencies in Mr. Marcos evidence as to peripheral issues.

f) The evidence of John Muir

[249] My observations as to the evidence of Mr. Marcos above apply equally to Mr. Muir.

g) The evidence of Ernest Malyon

[250] My observations as to the evidence of Mr. Marcos above apply equally to Mr. Malyon

h) The evidence of Constable Kenneth Dearsley

[251] I found the evidence of Constable Dearsley to be internally consistent and consistent with the evidence that I believed. Accordingly, I found him to be a credible and reliable witness. I also found that he testified in a dispassionate, objective and neutral fashion.

3) The cause of the fire

a) Introduction

[252] I reiterate that Ms. Rueda testified that the fire had resulted from the accused pouring gasoline on her, on the bed in which Isabel was sleeping, on the floor of the bedroom and on the outside of the door to the bedroom and then igniting that gasoline.

[253] I reiterate that according to Ms. Rueda, she was at the time on the inside of the door attempting to keep Mr. Kormendy from entering, and that Mr. Kormendy had ignited the fire from the hallway.

[254] That evidence has three components. The first is how the fire was ignited, the second is where it was ignited and how it spread and the third is who lit the fire.

b) How did the fire start?

[255] As to how the fire was started, I accept Ms. Lorimer's conclusion that the fire was ignited by open flame coming into contact with gasoline vapour. Ms. Lorimer gave extensive reasons for belief that gasoline was present. She also explained that her investigation had not disclosed any solid, liquid or other fuels which would have ignited before gasoline in the circumstances observed. She also ruled out accidental sources of ignition. I accepted that evidence as true.

[256] Both the Crown and defence counsel also accepted that evidence.

[257] For all of these reasons, I find that the fire started in the manner described by Ms. Lorimer; that is open flame coming into contact with gasoline vapour.

c) Where did the fire start?

[258] Ms. Lorimer expressed no doubt the fire started in the area of the bedroom door jam. She also expressed no doubt that the bedroom door was then closed, as Ms. Rueda had testified.

[259] I reiterate that Ms. Lorimer testified in chief that the fire had started in the hallway at that door jam to the bedroom door in the corner of the hallway where that door and the bathroom door intersect. I will refer to that area as the outside of the bedroom door. She

testified that the flames had followed the gasoline vapours under the space at the bottom of the bedroom door into the bedroom where Ms. Rueda and Isabel were at the time.

[260] In cross-examination, Ms. Lorimer acknowledged that her conclusion as to the point of ignition being in the hallway outside of the bedroom door was based upon Ms. Rueda’s statement to her. She also acknowledged that if that statement was incorrect, the fire may have started at that same door jam but on the inside of the bedroom door. In the end, although Ms. Lorimer could not say with certainty the fire had started directly inside or directly outside that bedroom door, she did express certainty that the fire had started at the base of the door jam on the doorknob side of the bedroom door. Neither the Crown nor the defence took issue with that finding.

[261] Accordingly, I find that the fire had its origin at the bottom of the bedroom door jam on the doorknob side of that door.

[262] As to the issue of whether the fire had started on the inside or outside of the door, I believed Ms. Rueda when she said that the fire had started on the outside of the door and not the inside.

[263] I found her evidence in that regard logical. Her evidence was clearly not inconsistent with the evidence of Ms. Lorimer.

[264] I reiterate that I found Ms. Rueda to be a credible witness.

[265] For all of these reasons, I had no reason to disbelieve her.

[266] Nor was I left with any reasonable doubt as a result of the evidence of Mr. Kormendy. He testified that there were flames in the corner of the hallway in precisely the location that Ms. Rueda said the fire had started.

[267] It was Mr. Kormendy’s evidence that he could see flames inside the room through a crack in the door. I, however, did not believe that Mr. Kormendy could have seen flames in that room from outside of the bedroom. That was because I believed the evidence of Ms. Lorimer that the door was closed at the time the fire was ignited. I find Mr. Kormendy's professed observation of a fire inside the room consistent with an intention to create doubt as to the location of origin of the fire in an effort to substantiate his suggestion that Ms. Rueda had set fire to herself and Isabel.

[268] For these reasons, and my reasons below in support of my finding as to who lit the fire, I believe that the fire started in precisely the location that Ms. Rueda testified that it had. Further, for these reasons and the reasons below, I am left with no reasonable doubt as to that conclusion by the evidence of Mr. Kormendy or any other evidence heard.

d) Who lit the fire?

Introduction

[269] Ms. Lorimer’ investigation excluded accidental ignition. There was no evidence to suggest that Ms. Lorimer’s conclusion was incorrect. As a result, I accept Ms. Lorimer's evidence that the fire was deliberately set.

[270] I reiterate that both the Crown and defence counsel also accepted Ms. Lorimer's conclusion that the fire had been ignited by open flame coming into contact with gasoline vapours. Again, there was nothing to suggest that conclusion was incorrect and, accordingly, I accepted it.

[271] It is common ground that there were only four people in the house that night. There was no evidence to suggest the contrary. No one has suggested that either Felicia or Isabel ignited the gasoline vapours nor was there any evidence to suggest that possibility.

[272] It follows that it was either Ms. Rueda or Mr. Kormendy who intentionally put an open flame to the gasoline vapours thereby igniting the fire.

The evidence as to Ms. Rueda having lit the fire

[273] I reiterate that the defence implied that it was Ms. Rueda who had started the fire. The defence put several hypotheses to her in cross-examination in an attempt to either prove that assertion or raise a reasonable doubt that it had been Mr. Kormendy who lit the fire.

[274] The first was a suggestion that Ms. Rueda had asked Mr. Kormendy to kick the “ass” of the former boyfriend. That suggestion was denied by Ms. Rueda. I had no reason to disbelieve Ms. Rueda. There was no evidence from Mr. Kormendy or anyone else confirming the conversation had ever taken place. Even if it had taken place, I do not see a connection between that conduct and Ms. Rueda killing herself and her children by deliberately setting the house on fire. Accordingly, I gave this hypothesis no further consideration.

[275] The second was a suggestion that she may have started the fire to appease her father. That is because her father does not like smoking and was likely aware that Mr. Kormendy smokes. Ms. Rueda denied having set the house on fire to appease her father. There was no evidence whatsoever to suggest that she was the kind of person who would react in that way. There was no evidence to suggest that her relationship with her father was such that such a reaction would be possible. There was only a bald assertion in that regard. Accordingly, I gave this hypothesis no further consideration.

[276] The third hypothesis was the suggestion that Ms. Rueda had told Mr. Kormendy's mother that she had stopped taking her antidepressant medication. I make the following observations regarding that hypothesis. The first observation is that the assertion was denied by Ms. Rueda. Again, I had no reason to disbelieve Ms. Rueda. The second observation is that Mr. Kormendy's mother was not called as a witness in support of that assertion, and there was no other evidence from anyone else to support that the statement had ever been made. The third observation is that there was no evidence as to the nature of Ms. Rueda’s depression and the likely symptoms which would result if she stopped taking the medication. Accordingly, there was no evidence as to how she would have reacted if it was true that she had stopped taking her medication. As a result, I gave this hypothesis no further consideration.

[277] The fourth hypothesis put forth was Mr. Kormendy’s inference that Ms. Rueda had lit the fire in desperation when she learned that Mr. Kormendy was leaving her. I rejected that hypothesis for the reasons above.

[278] There was no other evidence consistent with Ms. Rueda having any reason to set herself, the bed in which her daughter Isabel was sleeping, and the house on fire. It defies common sense and logic to suggest that she would have done so without any reason whatsoever.

[279] Finally, all of Ms. Rueda's evidence was consistent with the evidence of Ms. Lorimer.

[280] In summary, I rejected each of the potential reasons suggested by defence counsel for Ms. Rueda having lit the fire. Given the lack of an evidentiary basis for the first three and my reasons above for rejecting the fourth, none of those hypotheses left me with a reasonable doubt that it may have been Ms. Rueda who had lit the fire.

The evidence as to Mr. Kormendy having lit the fire

[281] I begin with the observation that there was no evidence that anyone had actually seen Mr. Kormendy light the fire. The only evidence that he had done so is circumstantial evidence.

[282] In order to convict, I must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused lit the fire: see R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 33; and R. v. Fleet (1997), 1997 CanLII 867 (ON CA), 36 O.R. (3d) 542 (C.A.), at para. 20; R. v. Guiboche, 2004 MBCA 16, 180 Man. R. (2d) 276, at paras. 108-10; and R. v. Tombran (2000), 2000 CanLII 2688 (ON CA), 47 O.R. (3d) 182 (C.A.), at para. 29.

[283] I find the circumstantial evidence overwhelming.

[284] I accepted Ms. Rueda's testimony that the accused was in the bedroom with her and Isabel and what occurred while he was in that room. I was left with no reasonable doubt as a result of Mr. Kormendy’s evidence or any other evidence that I believed that the events unfolded in the manner she described.

[285] Ms. Rueda testified that Mr. Kormendy had persistently re-entered the room on four to five separate occasions that evening. I found that evidence consistent with the preponderance of evidence, including Mr. Kormendy's conduct throughout the exchanges of text messages and his own evidence as to the relationship. I believed Ms. Rueda when she said that in a desperate attempt to get some sleep she finally told Mr. Kormendy that the relationship was over. I also believed Ms. Rueda when she said that Mr. Kormendy had then entered the room on two separate occasions that night smelling of gasoline prior to the final entry where he began spreading the gasoline and ultimately lit it on fire. Again, her evidence was consistent with the preponderance of evidence in that regard, including the evidence of Constable Dearsley regarding the strong smell of gasoline present on Mr. Kormendy at the time of his arrest. I reiterate my above rejection of Mr. Kormendy's explanation for that strong smell.

[286] I believed Ms. Rueda when she testified that Mr. Kormendy had entered the room for the final time with a gasoline container in his left hand and what she believed to be a lighter in his right hand. I believed Ms. Rueda when she said that he then poured gasoline on her pants, on the bed, and on the floor for approximately 15 seconds. He was at the time holding what she believed to be a lighter and unsuccessfully attempting to light it.

[287] Ms. Rueda testified that when she realized what Mr. Kormendy was doing, she excluded him from the room by either pushing him or leading him out. I reiterate that Ms. Rueda said she could hear him on the other side of the bedroom door. She could hear him pouring gasoline. As said above, there was no one else in the house. Again, I found that evidence consistent with the preponderance of evidence and I believed it.

[288] Consistent with that evidence, Mr. Kormendy acknowledged that he had used a five litre lawn mower gasoline container to start a campfire the night immediately prior to the events of October 24. He also acknowledged that he had left that container near or on the back porch or on the back porch steps. That evidence is significant because he would have known where that gasoline container had been left, and it would have been handily available to him that night. Because the container was not in its usual place, Ms. Rueda would not have known where it was. She would have had to either ask Mr. Kormendy or go out in search of the gasoline container.

[289] Finally, I find that the presence of gasoline on Mr. Kormendy’s shoes is consistent with Ms. Rueda's evidence as to the manner in which Mr. Kormendy had spread the gasoline both inside and on doorway to the bedroom.

[290] There are three issues raised by defence which I would like to address at this point.

[291] The first issue raised by the defence was a suggestion that the gasoline that would have come out of the gasoline container over 15 seconds would have consumed the carpet, and that the carpet had not been completely consumed by the fire. I make the following observations in that regard. The first is as to defence counsel’s assumption that Ms. Rueda's evidence was that the gasoline had been poured continuously for 15 seconds. That is not how I recall Ms. Rueda's evidence. Ms. Rueda had described the gas as coming out “pretty steady” at first and “sporadically” after that. The second is that Ms. Lorimer explained that debris from sources such as the ceiling may have covered parts of the carpet thereby protecting it from burning.

[292] The second issue raised by the defence was that the evidence of Constable Dearsley to the effect that the pink lighter found in the possession of Mr. Kormendy was functioning properly, debunks Ms. Rueda's evidence regarding apparent inability of Mr. Kormendy to light what she believed was a lighter.

[293] I disagree with that assertion. There are three reasons. The first reason is my finding above that there were two lighters in the house, the pink lighter and the second lighter which did not function properly. Mr. Kormendy testified that he had found his own lighter only a few hours before the fire started. I do not find it a stretch to conclude that Mr. Kormendy’s lighter was the second lighter referred to by Ms. Rueda and which she said did not function properly, and that it was that lighter which Mr. Kormendy had in Isabel's bedroom. The second reason is that I do not find the operation of a lighter in the casual setting of lighting a cigarette in any way comparable to operating a lighter in the process of trying to kill someone by setting gasoline on fire. It follows that if it was the pink lighter in Mr. Kormendy's hand within the bedroom, he may well have had difficulty lighting it in that stressful situation. The third reason is that Mr. Kormendy was simultaneously using his left hand to pour gasoline. That effort would have no doubt taken some of his concentration.

[294] The third issue raised by the defence relates to potential sources of ignition. I reiterate that Ms. Rueda testified that there were only three potential sources of ignition in the house, two lighters and some matches. The evidence of Mr. Kormendy was consistent with Ms. Rueda's in that regard. He testified as to three sources of ignition. The pink lighter which had been found in his possession on the search incident to arrest, a second lighter which belonged to Mr. Kormendy and which he testified that he found after he texted Ms. Rueda and asked her to bring home a lighter, and finally the matches which, according to Mr. Kormendy’s text, were inoperable because they were wet.

[295] I reiterate that late in Mr. Kormendy’s testimony he asserted that there were other matches in the house which he had discovered after having texted Ms. Rueda asking her to bring home a lighter. I found that evidence suspect for three reasons. The first was that it had not come until a point in the trial when Mr. Kormendy would have become aware of the significance of him having been in control of the only two remaining sources of ignition in the house. The second is that if Mr. Kormendy had matches, there would have been no reason for him to have had Ms. Rueda's lighter in his possession at the time of his arrest. He could have simply used those matches to light cigarettes that he wanted to smoke. The third is that there was no evidence that matches have been discovered by Ms. Lorimer during the excavation of the fire scene which she had conducted in the course of her investigation.

Conclusions as to who lit the fire

[296] In summary, I believed Ms. Rueda's evidence as to the sequence of events surrounding the ignition of the fire. I found it logical, credible, and consistent with the preponderance of evidence that I believed. That belief was not shaken as a result when considered in the context of the totality of the evidence, including the evidence of Mr. Kormendy and the other evidence which I believed.

[297] The circumstances described by Ms. Rueda left me with no reasonable doubt that the only rational inference that can be drawn from that circumstantial evidence is that it was Mr. Kormendy who was on the other side of the door that evening, and that it was Mr. Kormendy who had poured gasoline on the door and then lit the fire. Finally, I was left with no reasonable doubt that he did so deliberately.

4) Counts one and two - Attempted murder of Ms. Rueda and Isabel Rueda by arson contrary to [section 239(1)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html).

a) Introduction

[298] In order for me to find the accused guilty of attempted murder by arson, Crown counsel must prove each of these essential elements beyond a reasonable doubt:

1. That the accused meant to kill Ms. Rueda and/or Isabel Rueda.

2. That the accused set fire to 1680 Balfour Boulevard, Windsor, Ontario in an attempt to accomplish that end.

[299] The mens rea for an attempted murder cannot be less than the specific intent to kill: see R. v. Ancio, 1984 CanLII 69 (SCC), [1984] 1 S.C.R. 225. It follows that subjective foreseeability is required and objective foreseeability insufficient: see R. v. Logan, 1990 CanLII 84 (SCC), [1990] 2 S.C.R. 731, at p. 733-734.

[300] The actus reus is completed upon the first act beyond preparation: see R. v. Gordon, 2009 ONCA 170, 94 O.R. (3d) 1, per Watt J. (appeal to S.C.C. refused, 243 C.C.C. (3d) vi).

b) Did the accused mean to kill Ms. Rueda and/or Isabel Rueda?

[301] I reiterate that subjective foreseeability is required and objective foreseeability insufficient: see R. v. Logan, at p. 733-734.

[302] In this case, Mr. Kormendy has denied that intention. There is only circumstantial evidence in that regard. As said above, I must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from that evidence is that the accused subjectively intended to kill Sheri Rueda and Isabel Rueda.

[303] “Common sense dictates that people are usually able to foresee the consequences of their actions. Therefore, if a person acts in a manner which is likely to produce a certain result it generally will be reasonable to infer that the person foresaw the probable consequences of the act.” See: R. v. Seymour, 1996 CanLII 201 (SCC), [1996] 2 S.C.R. 252, at para 19.

[304] There is a presumption of fact or a permissive inference (although not a presumption of law) that a person intends the natural and probable consequences of his acts: see R. v. Mulligan (1974), 1974 CanLII 1662 (ON CA), 18 C.C.C. (2d) 270 (Ont. C.A.), at para. 18, aff’d, [1977] 1 S.C.R. 632; R. v. Giannotti, 1956 CanLII 160 (ON CA), [1956] O.R. 349 (C.A.); R. v. Brent (1972), 1972 CanLII 1261 (BC CA), 7 C.C.C. (2d) 232 (B.C.C.A.); Stapleton v. The Queen (1952), 86 C.L.R. 358 (Aus. H.C.), at p. 365; Smythe v. The Queen (1957), 98 C.L.R. 163 (Aus. H.C.).

[305] I find the actions of Mr. Kormendy that night lead to an inescapable inference that he intended to kill both Ms. Rueda and Isabel.

[306] Mr. Kormendy had entered the room on three separate occasions smelling of gasoline. In other words, I am left with no reasonable doubt that his actions may have been spontaneous, accidental, or anything else than considered and deliberate.

[307] On the third of those occasions he deliberately poured gasoline directly onto Ms. Rueda, onto the bed in which Isabel was sleeping, and onto the floor of that room for what Ms. Rueda estimated to have been 15 seconds, albeit at times sporadically. He then doused the door, which was the primary means of egress from that room, with gasoline. After having done so, he lit it on fire.

[308] Mr. Kormendy testified that he saw the fire. According to Mr. Kormendy, the fire was raging seconds after it had been lit. The fire that he described was consistent with the evidence of both Ms. Rueda and Ms. Lorimer. The fire Mr. Kormendy himself described would clearly burn down the house in a very short period of time.

[309] By Mr. Kormendy's own admission he made no attempt to call out and warn the occupants of the room of the impending doom. He had three separate opportunities to warn them. The first was when he was on the outside of that door lighting the fire. The second was when he passed the window to Isabel's bedroom on his way to the back of the house. The third was when he again past Isabel's window on his way from the back of the house to the front of the house. Mr. Kormendy's failure to call into the window or to attempt to assist in any way is consistent with his continuing intention to let Ms. Rueda and Isabel die in that fire.

[310] Consistent with that observation, Mr. Kormendy had a cell phone in his pocket but by his own admission did not make any attempt to contact anyone for help.

[311] Accordingly, I am left with no reasonable doubt that the deaths of Ms. Rueda and Isabel were subjectively foreseeable by Mr. Kormendy as a direct consequence of his deliberate actions.

[312] Accordingly, I find that the Crown has demonstrated beyond a reasonable doubt that the accused meant to kill both Ms. Rueda and Isabel Rueda

c) Did the accused set fire to 1680 Balfour Boulevard, Windsor, Ontario?

[313] As said above, I find that the accused deliberately set fire to 1680 Balfour Boulevard, Windsor, Ontario.

d) Conclusions as to counts one and two

[314] For all of these reasons, I find that the Crown has proved each element of the offence of the attempted murder by arson of Sheri Rueda and Isabel Rueda.

5) Count three - Attempted murder of Felicia Bioh by arson contrary to [section 239(1)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html).

a) Did the accused mean to kill Felicia Bioh?

[315] The Crown's case for the attempted murder of Felicia Bioh by arson differs somewhat from its case for the attempted murder of Ms. Rueda and Isabel.

[316] I say that for two distinct reasons.

[317] The first is that Felicia was not in the bedroom in which the fire occurred. In fact, there was no evidence that the fire ever reached the bedroom in which Felicia was sleeping. I reiterate that gasoline had been poured directly onto Ms. Rueda and onto the bed in which Isabel was sleeping. Their primary means of egress, being the door, was then doused with gasoline and lit on fire.

[318] Notwithstanding, I find the conclusion inescapable that the fire would have in very short order killed Felicia either as a result of smoke inhalation or the fire reaching her bedroom but for her rescue. The inability of a one-year-old to understand the nature and dangers of the fire and to escape that fire on her own leads to the inescapable inference that Mr. Kormendy intended to kill her. That is the natural and probable consequences of his deliberate actions. I can think of no other ending for the scenario.

[319] As to Mr. Kormendy's subsequent rescue of that child, I make the following observations.

[320] As said above, Mr. Kormendy had a cell phone in his pocket yet made no effort to contact the police, ambulance, or the fire department.

[321] Also as said above, I rejected Mr. Kormendy's evidence as to the immediacy of that rescue. I reiterate that the timeline suggested by him was impossible in the context of the preponderance of evidence. Mr. Kormendy clearly spent some time on the outside of the house prior to returning to rescue the child. There is nothing from which I could conclude that Mr. Kormendy had an immediate intention to rescue that child. I find that Mr. Kormendy’s initial intention was to leave Felicia in the house to die. I also find the evidence supports the conclusion that it was the action of the brave three individuals in the taxicab which was the precipitating event in Mr. Kormendy's decision to go back into the house to rescue the child.

[322] Even if after Mr. Kormendy had left the house, and while he was standing outside, he had changed his mind about killing Felicia, that change of mind does not vitiate his intention to kill her. The critical point in time for the intention to kill was at the time the fire was started. Once an individual forms the intention to kill and acts upon that intention, the crime is complete.

[323] For these reasons, I am left with no reasonable doubt that the death of Felicia as a direct consequence of his deliberate actions was subjectively foreseeable by Mr. Kormendy. Accordingly, I find that the Crown has demonstrated beyond a reasonable doubt that the accused intended to kill Felicia.

b) Did the accused set fire to 1680 Balfour Avenue Windsor Ontario?

[324] As said above, I find that the accused deliberately set fire to 1680 Balfour Boulevard, Windsor, Ontario.

c) Conclusions as to counts three

[325] For all of these reasons I find that the Crown has proved each element of the offence of the attempted murder by arson of Felicia Bioh.

6) Count four – Arson with disregard for human life contrary to [section 433](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)(a) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html).

a) Introduction

[326] Arson is a crime of general intent: see R. v. Tatton, 2015 SCC 33, [2015] 2 S.C.R. 574, at para. 47. “For general intent crimes, the mental element simply relates to the performance of an illegal act. Such crimes do not require an intent to bring about certain consequences that are external to the actus reus”: see Tatton, at para. 35; R. v. Bernard, 1988 CanLII 22 (SCC), [1988] 2 S.C.R. 833, at p. 863; and R. v. George, 1960 CanLII 45 (SCC), [1960] S.C.R. 871, at p. 877 (per Fauteux J.). “The mental element is the intentional or reckless performance of the illegal act - the causing of damage to property. No additional knowledge or purpose is needed.” See: Tatton, at para. 48.

[327] “The actus reus is the damaging of property by fire.” See: Tatton, at para. 48.

[328] In order for me to find the accused guilty of arson with disregard for human life contrary to section 433(a) of the Criminal Code, the Crown must prove each of the following elements of that offence beyond a reasonable doubt:

1. That the accused caused damage to property by fire;

2. That the accused caused the damage intentionally or recklessly; and

3. That the accused knew or was reckless whether the property was occupied.

b) Did the accused cause damage to property by fire?

[329] For purposes of this offence, “property means real or personal corporeal property.” See: s. 428, Criminal Code. Damage for purposes of this section is to be given its ordinary meaning. In other words, “An individual causes damage by fire to property when he causes harm by fire to that property.” It is not necessary that the value of the property be reduced as a consequence: see R. v. M.V. (1998), 1998 CanLII 4374 (ON CA), 39 O.R. (3d) 217 (C.A.), at para 25.

[330] In this case, the fire caused by the accused clearly caused damage to 1680 Balfour Boulevard. The Crown and defence agreed that the value of that damage was in excess of $99,000.

c) Did the accused cause the damage intentionally or recklessly?

[331] I have no reasonable doubt that the accused actually knew that the damage to 1680 Balfour Boulevard was the probable consequences of him spreading gasoline throughout the bedroom area and hallway and then igniting that gasoline. Mr. Kormendy was well aware that the substance in the gasoline container was gasoline and that it was highly volatile. I say that because only the night before he had used gasoline from that container to ignite a bonfire.

d) Did the accused know or was he reckless as to whether the property was occupied?

[332] I reiterate my finding above that the accused knew that Sheri Rueda, Isabel Rueda, and Felicia Bioh were all in the house at the time he lit the fire.

e) Conclusions as to count four

[333] For all of these reasons, I find that the Crown has proved each element of the offence of arson with disregard for human life beyond a reasonable doubt.

7) Counts five and six– Arson causing bodily harm to Sheri Rueda and Isabel Rueda contrary to [section 433](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)(b) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html).

a) Introduction

[334] In order for me to find the accused guilty of arson causing bodily harm contrary to section 433(b) of the Criminal Code, the Crown must prove each of the following elements of that offence beyond a reasonable doubt:

1. That the accused caused damage to property by fire;

2. That the accused caused the damage intentionally or recklessly; and

3. That the fire caused bodily harm to the complainants.

b) Did the accused cause damage to property by fire?

[335] I reiterate my finding above that the accused caused damage by fire in excess of $99,000 to 1680 Balfour Boulevard.

c) Did the accused cause the damage intentionally or recklessly?

[336] I reiterate my finding above that I have no reasonable doubt that the accused actually knew that damage to 1680 Balfour Boulevard was the probable consequences of him spreading gasoline throughout the bedroom area and hallway and then igniting that gasoline.

d) Did the fire or explosion cause bodily harm to the complainants?

[337] Section 2 of the Criminal Code defines “complainant” as the victim of an alleged offence and “bodily harm” as “any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature.” Functional impairment may result from bodily harm but is not a necessary component. Any pain causing discomfort is sufficient provided it is more than trifling and transient: see R. v. Moquin, 2010 MBCA 22, 251 Man. R. (2d) 160, at para. 31.

[338] As to the complainant Isabel, I find that she has suffered lifelong injuries in accordance with the testimony of Dr. Scilley above. Those injuries include extensive scarring which will never heal. Consistent with the evidence of Dr. Scilly, I find that the scarring to her face will no doubt impact her for the rest of her life. Her injuries also include loss of function in the hands and loss of normal sensation in the hands and feet.

[339] As to the complainant Ms. Rueda, I find that she suffered significant burns to her hands which were more than transient or trifling in nature. The injuries were no doubt extremely painful. I accept Ms. Rueda's evidence that she continues to suffer symptoms notwithstanding that approximately one year has passed since the fire.

e) Conclusions as to counts five and six

[340] For all of these reasons, I find that the Crown has proved each element of the offence of arson causing bodily harm to Sheri Rueda and Isabel Rueda beyond a reasonable doubt.

8) Count seven – Arson causing damage to property namely 1680 Balfour Boulevard, Windsor, Ontario, contrary to [section 434](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

a) Introduction

[341] In order for me to find the accused guilty of arson causing property damage contrary to section 434 of the Criminal Code, the Crown must prove each of the following elements of that offence beyond a reasonable doubt:

1. That the accused caused damage to property by fire or explosion;

2. That the accused caused the damage intentionally or recklessly; and

3. That the accused was not the only person who owned the property.

b) Did the accused cause damage to property by fire or explosion?

[342] I reiterate my finding above that the accused caused damage to the property by fire.

c) Did the accused cause the damage intentionally or recklessly?

[343] I reiterate my finding above that I have no reasonable doubt that the accused actually knew that damage to 1680 Balfour Boulevard was the probable consequences of him spreading gasoline throughout the bedroom area and hallway and then igniting that gasoline.

d) Was the accused the only person who owned the property?

[344] I find that the accused was not the only person who owned the property. I reiterate that to the contrary, the Crown and defence agreed that it was José Rueda who owned 1680 Balfour Boulevard during the relevant time frame.

e) Conclusions as to count seven

[345] For all of these reasons, I find that the Crown has proved each element of the offence of arson causing damage to property, namely 1680 Balfour Boulevard, Windsor, Ontario, beyond a reasonable doubt

9) Count eight - Possession of the incendiary materials and incendiary device for the purpose of committing an offence under [section 433](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) contrary to [section 436.1](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the Criminal Code.

a) Introduction

[346] On consent, the indictment was amended to read “did possess an incendiary device and incendiary material.”

[347] Section 436.1 of the Criminal Code provides that “[e]very person who possesses any incendiary material, incendiary device or explosive substance for the purpose of committing an offence under any of sections 433 to 436 is guilty of an indictable offence….”

[348] Mr. Kormendy's charge relates specifically to an offence under section 433.

[349] The Crown and the defence directed argument to possession of an “incendiary device”, in particular the pink lighter. I observe that the charge as worded relates to possession of “incendiary material” which I presume to be gasoline. I do not find that anything turns on the distinction because, for the reasons which follow, I find that the lighter in Mr. Kormendy's possession meets the definition of an incendiary device and the gasoline in Mr. Kormendy's possession meets the definition of incendiary material.

[350] As to an incendiary device, s. 431.2 (1) of the Criminal Code defines “explosive or other lethal device” as follows:

(a) an explosive or incendiary weapon or device that is designed to cause, or is capable of causing, death, serious bodily injury or substantial material damage; or

(b) a weapon or device that is designed to cause, or is capable of causing, death, serious bodily injury or substantial material damage through the release, dissemination or impact of toxic chemicals, biological agents or toxins or similar substances, or radiation or radioactive material.

[351] I find the lighter meets that definition.

[352] As to incendiary material, on the evidence before me I find the dictionary definition adopted by Hill J. at para. 59 of his decision in R. v. Wilk, [1995] O.J. No. 2463 applicable. That is an “inflammatory ... substance for causing a fire or conflagration.” Similarly, the 11th edition of the Concise Oxford Dictionary defines “incendiary” as “designed to cause fires.” Again, I find that the gasoline present that night fits that definition.

[353] In order for me to find the accused guilty of possession of incendiary material and possession of an incendiary device contrary to section 436.1 of the Criminal Code, the Crown must prove each of the following elements of the offence beyond a reasonable doubt:

1. That the accused was in possession of incendiary materials and device;

2. That the accused knew the materials and device were incendiary; and

3. That the accused possessed the incendiary materials and device for purposes of an offence under section 433.

b) Was the accused in possession of incendiary materials?

[354] At section 4(3) of the Criminal Code, possession for purposes of the act is defined as follows:

(a) a person has anything in possession when he has it in his personal possession or knowingly

(i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person;

[355] I find that the accused was in “actual possession” of gasoline and the lighter. Within the definition of possession above. That is because, as said above, it was he who brought the gasoline container from the back porch area where he had left it the night before to the bedroom and hallway area where Sheri Rueda observed him spreading the gasoline, and because the lighter was found in his pocket in the search incident to arrest.

c) Did the accused know the device and materials were incendiary?

[356] I find that the accused clearly knew the device and materials were incendiary. It is common knowledge that gasoline is highly flammable. In this case, the accused was well aware that the materials in the gasoline container were highly flammable. He testified that he had used gasoline from that same gasoline container only the night before to light a bonfire. Similarly, I find that the accused knew the incendiary nature of the lighter. He testified that he had used that same lighter on several occasions to light cigarettes.

d) Did the accused possess the incendiary materials and device for purposes of an offence under sections 433 to 436?

[357] For the reasons above, I find that the accused possessed the incendiary materials and incendiary device for the purposes of an offence under section 433 of the Criminal Code, namely arson causing bodily harm to Sheri Rueda and Isabel Rueda, in that he used the gasoline as an accelerant and used the lighter to ignite the gasoline vapours.

e) Conclusions as to counts three

[358] For all of these reasons, I find that the Crown has proved each element of the offence of possession of incendiary materials for purposes of committing an offence under section 433 of the Criminal Code beyond a reasonable doubt.

D. JUDGMENT

[359] For all the above reasons, I find as follows:

1. As to count one - guilty

2. As to count two - guilty

3. As to count three - guilty

4. As to count four - guilty

5. As to count five - guilty

6. As to count six - guilty

7. As to count seven - guilty

8. As to count eight - guilty

Original signed by Justice Christopher M. Bondy

Justice Christopher M. Bondy

Released: November 21, 2016

CITATION: R. v. Kormendy, 2016 ONSC 6856

COURT FILE NO.: CR-16-3627-0000

DATE: 20161121

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Kenneth James Kormendy

REASONS FOR JUDGMENT

Justice C. M. Bondy

Released: Oral Decision: November 21, 2016