COURT FILE NO.: CR-15-006 DATE: 2017-01-17

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Mr. P. Keen, for the Crown

• and -

CONNIE ROSE GORDON Mr. D. Dubinsky, for the Defendant Accused

HEARD: October 17, 18, 19, 2016 in Fort Frances, Ontario Mr. Justice J.S. Fregeau

Reasons for Judgment

INTRODUCTION

[1] Connie Rose Gordon (the “defendant”), has pled not guilty to the single count on the indictment alleging that she did, on or about March 13, 2014, intentionally or recklessly cause damage by fire to Reid’s Voyageur Inn Motel (the “Voyageur Inn”) situate at 525 Portage Avenue, Fort Frances, Ontario, which fire did cause bodily harm to Dallas Jason Bluebird, contrary to section 433 (b) of the Criminal Code of Canada.

SUMMARY OF THE EVIDENCE

[2] Mr. Tom Reid (“Reid”) was the owner of the Voyageur Inn on March 13, 2014. He lived in a second floor room in the motel on that date. Reid’s room was next to Room #20, which was occupied by Dallas Bluebird (“Bluebird”). Janet Bluebird, Dallas Bluebird’s mother, occupied Room #8, on the main floor, at the time.

[3] According to Reid, he was in his room between 6:30 and 7:00 pm on March 13, 2014, when he heard a loud banging and a female voice coming from the hallway outside his door. He opened the door and observed a female trying to get into Room #20. Reid asked the female who she was and she identified herself as Connie Gordon. He then recognized her from when she had stayed at the motel four or five years earlier. Reid identified Gordon at trial as the female he saw outside Room #20 on March 13, 2014.

[4] The female asked Reid to let her into Room #20. He refused and told her to leave. Reid then saw Janet Bluebird come upstairs, at which time Bluebird opened the door to Room #20. Gordon tried to push her way into Bluebird’s room and he closed his door on her. Reid then observed Gordon leaving down the stairwell, hearing her say, more than once, that she was going to “burn him out of there” or words to that effect. Reid testified that he next observed a black truck leaving the motel parking lot which he assumed was Gordon’s because it was the only vehicle in the lot.

[5] Reid returned to his room to watch television. Soon thereafter, his dog became “restless” and he heard a “crackling noise” in the hallway or staircase. As he got up to investigate this noise, he observed fire outside the motel in the vicinity of the motel sign. Reid opened his door and black smoke “poured” into his room. He then called 911 and exited his room through the window.

[6] Janet Bluebird was employed as a housekeeper at the Voyageur Inn in March 2014 and resided in Room #8. She also heard a “banging” noise upstairs from her room and assumed it was at or near her son’s room. She went upstairs to see what was going on and saw her son, Reid and the defendant outside her son’s door. Ms. Bluebird was familiar with the defendant because the defendant and her son had been in a four year relationship, ending in 2010.

[7] Janet Bluebird observed the defendant trying to push her way into Room #20 and her son resisting by pushing on the door. Janet Bluebird heard the defendant state, during her interaction with her son, “I’ll get you into trouble” and “I’ll burn the place down” and/or “I’ll burn you up”. Janet Bluebird told the defendant to leave and pushed past her into her son’s room, closing the door. A few minutes later she returned to her room on the main floor.

[8] Soon thereafter, her son telephoned her saying that the upstairs was full of smoke. She left her room and tried to get upstairs but was prevented from doing so by smoke. She then exited the building.

[9] Neither Reid’s nor Janet Bluebird’s identification of Gordon as the female outside Room #20 of the Voyageur Inn on March 13, 2014 was challenged on cross examination.

[10] Dylan Patterson is a 22 year old construction worker who returned to the Voyageur Inn, Room #14, opposite Room #20, at approximately 6:40 pm on day of the fire. At approximately 7:20 pm that evening he opened his door when he heard arguing and then “pounding” that he thought was on his door. He observed a female he identified as the defendant asking “Tom” (Reid) to let her into Room #20. Mr. Patterson also heard this woman saying that she would “burn it down” after Reid and Janet Bluebird persuaded her to leave.

[11] Shortly thereafter, Mr. Patterson observed the police arrive and talk with Dallas and Janet Bluebird. Approximately five minutes after the police left, Mr. Patterson noticed a red “jerry can” on fire about 20 feet from the outside door of the motel. He marked the location of the burning jerry can on photo #3, exhibit #2. “Instinct” suggested to Mr. Patterson that he get himself and his girlfriend out of the motel. When he opened the door between his room and the motel hallway, he observed fire coming up the stairwell and onto Bluebird’s door. He returned to his unit and left through his window. He then called both 911 and the fire department.

[12] On cross examination, Mr. Patterson conceded that he had never met the defendant prior to this incident and that he never saw her face on March 13, 2014.

[13] The Voyageur Inn suffered extensive smoke, water and structural damage. The total loss was $421,281.36; Reid was reimbursed $419,281.36 by his insurer after absorbing his $2,500.00 deductible.

[14] Exhibit #1, tab 3, filed on consent, is the Fire Investigation report of Mr. John Montgomery, Fire Investigator, May 26, 2014. Mr. Montgomery concluded that the March 13, 2014, fire at the Voyageur Inn was initiated through the intervention of open flame to combustible material located within the north side stairwell. Mr. Montgomery also concluded that a “volatile liquid” may have been used to initiate the fire in the stairwell.

[15] On March 13, 2014, John Singleton resided with his parents at Couchiching First Nation, just outside Fort Frances. He was at home on the evening of March 13, 2014. He testified that he “kinda not really” knows the defendant as a family friend of his mother and stepfather. According to Mr. Singleton, the defendant showed up at his home at between 7:00 and 7:30 pm on March 13, 2014 and asked for a gas can. When he repeatedly asked her why she needed a gas can, she eventually replied that she was “going to start a fire”. Mr. Singleton testified that the defendant was “jumpy” and that he refused to give her a gas can after which she left in a “greyish” truck.

[16] Aaron Keller was a retail clerk at the Husky gas station in Fort Frances on March 13, 2014, working a 3:30 – 11:00 pm shift. He testified that at approximately 7:50 – 8:00 pm that night an Aboriginal female purchased a small red gas can and a bottle of water and paid with a $100.00 bill. Within about 30 minutes, Mr. Keller observed a short Aboriginal male enter the store with a brand new red gas can which was missing the yellow “stopper cap”. Mr. Keller was asked by this male how to operate the gas pumps. Mr. Keller advised him how to do so. The male then stepped outside, pumped approximately $5.00 of gas into the can, returned inside, paid Mr. Keller and left. Mr. Keller identified the defendant as the female who purchased the gas can from him that night.

[17] Exhibit #5 was a copy of excerpts from the Husky gas station security tapes. Mr. Keller identified a female on the tape at a time stamp of 18:46:10 (6:46:10 pm) as the female who entered the store that night and purchased the gas can, leaving at 18:48:32 (6:48:32 pm). He then identified the male who purchased the gas, first entering the store at 18:52:02 (6:52:02 pm) and then again at 18:54:43 (6:54:43 pm) when he returned to pay for the gas. Mr. Keller next identified exhibit #4, a red gas can missing the yellow stopper cap and funnel insert, as identical to the one he had sold to the Aboriginal female that night.

[18] William Gushalak was the owner of the Fort Frances Husky gas station in March 2014. He testified that the date stamps on the station’s security cameras were one hour and seven minutes behind the correct time on March 13, 2014. He identified exhibit #6, a March 13, 2014 till receipt for a gas can and a bottle of water purchased at 7:55:58 pm and paid for with a $100.00 bill. He also identified exhibit #7, a March 13, 2014 till receipt for a $5.01 gas purchase at 8:03:31, paid for with a $20.00 bill.

[19] Corbin Archie resided with Kelvin Jourdain on Couchiching First Nation on March 13, 2014. He had been at home that day when a female he identified as the defendant showed up at approximately 7:00 pm. Mr. Archie accepted the female’s offer of a ride into town and they left in her truck shortly after 7:00 pm. According to Mr. Archie, the female asked him if he would buy her some gas if she gave him the money. He agreed to do so. Mr. Archie testified that the female drove to the Husky gas station, parked by the “air pump”, went into the store and returned to the truck with a gas can. She then threw the “nozzle piece” away and gave him $20.00 to purchase gas.

[20] According to Mr. Archie, he then had to ask the clerk how to pump the gas, after which he pumped and paid for $5.00 worth of gas. He placed the gas can in the back of the truck with the “lid” on it but missing the “yellow pieces”. Mr. Archie testified that the female then drove them to McDonald’s where he purchased a burger and fries with the change from the gas purchase, following which he was dropped off at a bar in downtown Fort Frances.

[21] Mr. Archie identified the female in the Husky security tapes as the woman who gave him a ride that night. He agreed that she was wearing glasses, a purple shirt, purple pants and a black jacket. He also identified, from a security tape, a truck at the McDonald’s drive thru at 19:08 (7:08 pm) March 13, 2014, as the truck he was in that night with the defendant.

[22] Constable Richard Ivanovich of the Ontario Provincial Police was working the night shift on March 13, 2014. At 7:20 pm on March 13, 2014 he and his partner were dispatched to the Voyageur Inn regarding an “unwanted person” call from Dallas Bluebird. He arrived at the motel at 7:23 pm, attended Room #20 and spoke with Bluebird. As a result of what Bluebird told him, the officer left the motel at 7:27 pm and began to look for the defendant. He was unable to locate her that night.

[23] At 8:31 pm on March 13, 2014, police dispatch received a call reporting a fire at the Voyageur Inn. Constable Ivanovich and his partner re-attended at the Voyageur Inn and observed smoke coming from the second floor and flames around the doorway on the north side of the motel. Constable Ivanovich noticed that Bluebird was not accounted for among the occupants who escaped the motel. He advised firefighters where Bluebird’s room was located. The firefighters went in and removed Bluebird from the motel after which he was taken to hospital by ambulance.

[24] Constable Ivanovich then assisted in the fire investigation. Firefighters directed the officer to a red, five litre septor can in the parking lot on the north side of the motel, opposite the outside door adjacent to the stairwell leading to Room #20. The officer observed that the septor can did have the black collar on it but did not contain the typical spout or yellow stopper. He observed the black collar to be slightly melted. Constable Ivanovich identified Exhibit #5 as the gas can that he observed in the motel parking lot that night. Constable Ivanovich also seized a green Bic lighter which he found outside and next to the motel wall, several feet from the outside door adjacent to the stairwell leading to Room #20.

[25] At 5:22 am on March 14, 2014, Constable Ivanovich received a call from dispatch advising him that Connie Gordon was being detained by Canadian Border Services agents at the Fort Frances border entry from the United States. The officer arrived at this location at 5:28 am and observed the defendant and a black truck which she indicated she had been driving. The defendant admitted having consumed alcohol and subsequently failed an Alert test. She was arrested and her truck, registered to Ronald Gordon, was seized. The defendant’s blood alcohol level was thereafter determined to be in excess of 200 millilitres of alcohol in 100 millilitres of blood.

[26] At the time of her arrest, the defendant was wearing a purple, three quarter length top, black jeans and black shoes. This clothing was seized and entered into evidence at trial. Two lighters were seized from the defendant at the time of her arrest. On March 20, 2014, Constable Ivanovich searched the truck that the defendant was driving on March 14, 2014. A McDonald’s takeout bag was found inside the truck on the passenger seat. Within this bag, the officer found a McDonald’s receipt dated March 13, 2014, 8:05:30 pm. The receipt was for:

• 1 cheeseburger;
• 1 double cheeseburger;
• 1 medium fries.

[27] Constable Ivanovich attended at the Fort Frances McDonald’s restaurant on March 26, 2014, and downloaded the March 13, 2014 security tape. He confirmed that the time stamps on the McDonald’s tapes were one hour behind the correct time on March 13, 2014. When he viewed the McDonald’s tape, the officer noted a black truck pass through the McDonald’s drive-thru at a date stamp of 7:05 pm on March 13, 2014, which was actually 8:05 pm on that date.

[28] On March 20, 2014, Constable Ivanovich attended at the Fort Frances Husky gas station. He observed that the gas can he seized from the motel parking lot on March 13, 2014 was identical to two other gas cans in inventory at that outlet. He further observed that the production date stamp on the seized gas can was the same as the other two at the store, namely 21 March 2013.

[29] Marlena Gaune is a Fort Frances resident and an admitted alcoholic. She described herself as a “drinking buddy” of Bluebird. She testified that she was drinking with Bluebird at her residence during the afternoon of March 13, 2014 and that Bluebird left at about 3:00 pm.

[30] Gaune testified that, in March of 2014, she had known the defendant for “a few years” through Bluebird. According to Gaune, the defendant came to her home on March 13, 2014 after Bluebird left. Gaune testified that the defendant was upset to the extent that Gaune eventually told her to leave. According to Gaune, the defendant threatened to burn down her house and stated that she was going to the Voyageur to burn it down.

[31] On cross examination, Gaune acknowledged that she had not told the police, when interviewed on March 14, 2014, anything about the defendant having said she was going to burn the Voyageur Motel. She explained that she either “forgot that fact or that it had slipped her mind” when talking to the police.

[32] Trevor McQuay was employed as a Canadian Border Services officer in March of 2014. He testified that he had observed the defendant on March 13 and 14, 2014. Exhibit #20 was identified by Officer McQuay as a “passage history” printout for March 13 and 14, 2014. Officer McQuay explained that this document recorded that Connie R. Gordon entered Canada at the Fort Frances border crossing at 7:08 pm on March 13, 2014 in a vehicle with Ontario plate number 4520WC. Exhibit #20 also recorded that Ms. Gordon again entered Canada March 14, 2014 at 5:11 am driving the same vehicle.

[33] The evidence of Ronald Gordon was read into the record on consent. Mr. Gordon resides in Ear Falls, Ontario and is the father of the defendant. His admitted evidence is that the defendant took his black truck without permission and left Ear Falls on March 11, 2014. The defendant also admitted the truth of evidence from U.S. border officials that Connie Gordon entered the U.S. at the Fort Frances/International Falls border crossing on March 13, 2014 at 8:25 pm, operating a vehicle with Ontario plate 4520WC.

[34] The defendant testified in her own defence. According to the defendant, she travelled from Ear Falls to International Falls, Minnesota on March 12, 2014, re-entered Canada at Fort Frances at approximately 7:10 pm on March 13, 2014, and crossed back into International Falls at about 8:25 pm the same day. Upon entry into Canada on March 13, 2014, the defendant testified that she went to “Marlena’s” for a 10 minute visit to “say hello and chit chat”. According to the defendant, from Marlena’s she travelled to Kelvin Jourdain’s residence on Couchiching First Nation, said hello and left and then travelled to the Fort Frances McDonald’s restaurant where she purchased a “cheeseburger, fries and a drink” at the drive thru. She then returned to the U.S. The defendant testified that she did not go to either the Husky gas station or the Voyageur Inn that night.

[35] The defendant acknowledged her previous relationship with Bluebird and having known his mother well as a result. She also acknowledged that she knew Reid from having resided at the Voyageur Inn in 2007. She testified that she did not go to see Bluebird on March 13, 2014 and that she did not start a fire at the Voyageur Inn on March 13, 2014.

[36] On cross examination, the surveillance video of the Aboriginal female entering the Husky gas station at 18:46:08 on March 13, 2014, was played for the defendant to observe. When asked if the female was her, the defendant scrutinized the still image for a significant period of time before denying that it was. She did acknowledge that the female in the video had the same build and facial features as her and that the female in the video was wearing clothes similar to the clothes she was wearing when she was arrested on March 14, 2014.

[37] According to the defendant, she did not know Corbin Archie and did not drive him to either the Husky gas station or to McDonald’s on March 13, 2014. She was unable to explain how Mr. Archie had been able to testify as to what she had purchased at McDonald’s on March 13, 2014.

[38] Crown counsel concluded his cross examination of the defendant by having her confirm, according to her evidence, that:

• Janet bluebird incorrectly identified her;
• Tom Reid incorrectly identified her;
• Dylan Patterson incorrectly identified her;
• John Singleton incorrectly identified her as asking to borrow as gas can; and,
• Corbin Archie’s evidence was entirely fabricated.

THE DEFENDANT’S POSITION

[39] The defendant concedes that the fire at the Voyageur Inn started at approximately 8:15 pm on March 13, 2014, and that Dallas Bluebird suffered bodily harm as a result of the fire. The defendant denied that she started the fire. The defence submits that there is no evidence of her or her truck having been seen at the Voyageur Inn after 8:00 pm on March 13, 2014. The defence submits that there is no direct evidence that the defendant started the fire and no forensic evidence to connect her to the gas can or lighter found at the Voyageur Inn. The defendant also submits that the clothing seized from the defendant upon her arrest on March 13, 2014 was not linked to either the fire or an accelerant.

[40] The defence submits that even if the evidence of the defendant is not accepted, on all of the evidence a reasonable doubt exists as to whether or not she started the fire at the Voyageur Inn on March 13, 2014.

THE CROWN’S POSITION

[41] The Crown submits that three eyewitnesses – two of whom the defendant acknowledged knowing – identified the defendant as arguing with Bluebird outside of his room shortly after 7:00 pm on March 13, 2014 and threatening to set fire to the motel at the conclusion of the argument. A short time later, with the aid of an accelerant, a fire was lit near the location of Bluebird’s room. A red, five litre gas can, without a spout or lid, but with a slightly melted black collar, was found in the motel parking lot.

[42] The Crown submits that the unchallenged timelines are entirely consistent with the testimony of the Crown witnesses:

• the defendant entered into Canada at 7:08 pm on March 13, 2014;
• the police received the complaint about an unwanted person at the Voyageur Inn at 7:20 pm on March 13, 2014 and attended at the motel at 7: 23 pm at which time they were advised that the defendant had left;
• the defendant is seen on the Husky security video tape at approximately 7:55 pm on March 13, 2014;
• the defendant’s vehicle is seen on the McDonald’s security video at 8:05 pm on March 13, 2014;
• the fire is acknowledged by the defence to have started at approximately 8:15 pm on March 13, 2014.

[43] Corbin Archie testified that he was given a ride from Couchiching First Nation into Fort Frances by the defendant on March 13, 2014. The defendant admits to having gone to Kelvin Jourdain’s residence on Couchiching First Nation during the evening of March 13, 2014. Corbin Archie testified that he was asked by the defendant to purchase gas at the Husky gas station which he did. Archie confirmed that it was he and the defendant on the Husky security tape. The Crown submits that Archie could not possibly have known what the defendant purchased at McDonald’s unless he was present. His evidence as to this purchase was consistent with and supported by the McDonald’s March 13, 2014 receipt seized from the defendant’s vehicle on March 14, 2014.

[44] The Crown submits that all evidence pertaining to the gas can found at the scene is also compelling. Corbin Archie testified that he was given a small red gas can after the defendant purchased it and threw away the spout and stopper cap. The gas can seized at the scene was missing the spout and stopper cap. The black collar was slightly melted. Constable Ivanovich traced this can back to identical ones in inventory at the Husky gas station.

[45] In summary, the Crown submits that the evidence, while all circumstantial, proves beyond a reasonable doubt that the defendant’s guilt is the only reasonable inference to be drawn from the proven facts.

DISCUSSION

[46] The defendant has conceded that a fire was intentionally set at the Voyageur Inn at approximately 8:15 pm on March 13, 2014 and that Dallas Bluebird suffered bodily harm as a result of that fire. The defendant testified in her own defence that she did not start the fire. The issue for the court is whether it has been proved beyond a reasonable doubt that the defendant started the fire at the Voyageur Inn on March 13, 2014.

[47] Given that the defendant has testified and denied responsibility, her credibility is in issue. The rule of reasonable doubt applies to the issue of the defendant’s credibility. Pursuant to R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.), if I believe the evidence of the defendant, I must acquit. If I do not believe the evidence of the defendant but am left in a reasonable doubt by it, I must acquit. Even if I am not left in reasonable doubt by the evidence of the defendant, I am required to ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the defendant.

[48] As pointed out by the defendant, there is no evidence of the defendant or her vehicle having been seen at the Voyageur Inn after 8:00 pm on March 13, 2014. There is also no direct evidence that the defendant started the fire and no forensic evidence linking her to either the gas can or the lighter found at the scene. Finally, there is no forensic evidence linking the defendant’s clothing seized March 14, 2014, to either the fire or an accelerant. In other words, the Crown’s case is entirely circumstantial.

[49] Circumstantial evidence is any item of evidence, testimonial or real, other than the testimony of an eyewitness to the material fact. It is any fact from the existence of which the trier of fact may infer the existence of a fact in issue. In a circumstantial case, it is critical to distinguish between inference and speculation. An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established. There can be no inference without objective facts from which to infer the facts that one seeks to establish. If there are no positive proven facts from which an inference may be drawn, there can be no inference, only impermissible speculation. (Watt’s Manual of Criminal Evidence, 2016, pg. 50).

[50] As the Crown is relying on circumstantial evidence in the case at bar to establish the material fact in issue – that the defendant started the fire at the Voyageur Inn on March 13, 2014 – I must be satisfied beyond a reasonable doubt that the defendant’s guilt is the only reasonable inference that can be drawn from the proven facts.

[51] I accept the following unchallenged evidence as to timelines and identity to have been proven beyond a reasonable doubt:

1. The defendant entered Canada at Fort Frances at 7:08 pm on March 13, 2014;
2. The defendant was seen by three witnesses, two of whom were familiar with the defendant, at the Voyageur Inn in the hallway outside Dallas Bluebird’s room, shortly after 7:00 pm on March 13, 2014. She was described as belligerent and argumentative, threatening to burn Mr. Bluebird out of his room or words to that effect;
3. The police were dispatched to the Voyageur Inn at 7:20 pm on March 13, 2014, in response to a disturbance. They were advised that the defendant had left. The police left the motel at 7:27 pm the same evening;
4. The defendant was identified by Mr. Singleton as having come to his house on Couchiching First Nation just outside of Fort Frances between 7:00 pm and 7:30 pm on March 13, 2014, asking to borrow a gas can;
5. The defendant was identified by Mr. Archie as arriving at Kelvin Jourdain’s home on Couchiching First Nation at approximately 7:00 pm on March 13, 2014. Mr Archie further testified that the defendant thereafter gave him a ride into Fort Frances and asked him if he would purchase gas for her if she gave him the money to do so;
6. Mr. Kellar identified the defendant as the Aboriginal female who attended the Husky gas station in Fort Frances at approximately 7:50 – 8:00 pm and purchased a small red gas can and a bottle of water and paid with a $100.00 bill, followed shortly thereafter by a short Aboriginal male with an identical small red gas can missing the yellow “stopper cap”. Mr. Kellar testified that this male asked how to operate the pumps and then purchased $5.01 worth of gas which was pumped into the can;
7. Mr. Kellar was shown excerpts from the security videos from the Husky gas station for March 13, 2014. He identified the defendant as the Aboriginal female on the tape who entered the Husky store at 7:53:10 pm (corrected time) and left the store at 7:55:32 (corrected time). Mr. Kellar then identified, on the security video, the Aboriginal male who purchased the gas as first entering the store at 7:59:02 pm (corrected time) and then again at 8:01:43 pm (corrected time) when he returned to pay for the $5.01 worth of gas;
8. Mr. Gushalak, owner of the Husky gas station, identified a March 13, 2014, till receipt for a gas can and a bottle of water purchased at 7:55:58 pm with a $100.00 bill. He also identified a March 13, 2014 till receipt for a $5.01 gas purchase at 8:03:31 pm, paid for with a $20.00 bill;
9. Mr. Archie testified that he was then driven by the defendant to McDonald’s, where he purchased a burger and fries, following which he was dropped off by the defendant at a bar in downtown Fort Frances;
10. Constable Ivanovich seized and viewed the security video from this MacDonald’s restaurant for the evening of March 13, 2014 and testified that a black truck passed through the drive-thru at 8:05 pm (corrected time) that evening. Mr. Archie was shown this video and identified the black truck as the one the defendant was driving on March 13, 2014;
11. It was conceded that the fire was started at approximately 8:15 pm on March 13, 2014;
12. It was conceded that the defendant entered the U.S. from Fort Frances at 8:25 pm on March 13, 2014.

[52] Mr. Archie’s evidence was not challenged on cross examination. He identified the defendant as the person that drove him into town and asked him to purchase gas for her on March 13, 2014. He did so, as described above. He further testified that the defendant gave him a small red gas can without the yellow stopper cap or spout, which he used to purchase gas and put in the back of the defendant’s truck. Mr. Archie was also able to testify as to what he and the defendant purchased at McDonald’s, which was in turn confirmed by a MacDonald’s receipt seized from the defendant’s truck.

[53] Constable Ivanovich’s investigation of the gas can seized at the scene of the fire – without stopper cap or spout - confirmed beyond a reasonable doubt that it was identical to and from the same production lot as two others he observed at the Husky station on March 20, 2014.

[54] The defendant testified that she did enter Canada at Fort Frances at approximately 7:10 pm on March 13, 2014, and that she crossed back into the U.S. at about 8:25 pm the same evening. The defendant denied having gone to the Voyageur Inn that evening and getting into a confrontation with Mr. Reid and Ms. Bluebird. She did acknowledge that she knew both Mr. Reid and Ms. Bluebird. It was her evidence that both Mr. Reid and Ms. Bluebird incorrectly identified her. It was also her evidence that Mr. Singleton incorrectly identified her and that Mr. Archie’s evidence was entirely fabricated.

[55] The defendant testified that she did not attend the Fort Frances Husky gas station while in Fort Frances between 7:10 pm and 8:25 pm on March 13, 2014. On cross examination, the defendant was shown the Husky security tape depicting an Aboriginal female entering the store and purchasing a small red gas can at 7:53 pm -7:55 pm on March 13, 2014. When asked if the female in the video was her, the defendant took several moments to scrutinize the image before testifying that it was not. If the defendant had not gone to the Husky gas station as she testified, I am at a loss as to why she would take so long to confirm that it was not her in the video.

[56] I do not believe the evidence of the defendant nor am I left in a reasonable doubt by it. I accept the evidence of the Crown witnesses as referred to above. This evidence, while circumstantial, is overwhelming. In particular, the defendant’s suggestion that Mr. Archie’s evidence is entirely fabricated is impossible to accept, corroborated as it is by numerous other witnesses and pieces of evidence. The only reasonable inference to be drawn from all the evidence is that the defendant started the fire at the Voyageur Inn on March 13, 2014. On the basis of this evidence, I am convinced beyond a reasonable doubt that the defendant returned to the Voyageur Inn on March 13, 2014 immediately after she dropped Mr. Archie off. I am also satisfied beyond any reasonable doubt that she then started the fire using the gas purchased for her by Mr. Archie. She then left the gas can in the parking lot and returned to the U.S., crossing the border at 8:25 pm.

[57] The defendant is found guilty of Count 1 of the indictment.

The Hon. Mr. Justice J.S. Fregeau Released: January 17, 2017