COURT FILE NO.: 0117/19
DATE: 20190828
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
William jovani (Cynthia) Garcia
Defendant
Andrew Cox, for the Crown
Graedon Pfeiffer, for the Defendant
HEARD at Toronto: August 26-27, 2019
S.F. Dunphy J.
[1] The charges before me arise from a fire in Ms. Garcia’s rental apartment unit at 35A Henry Lane Terrace in Toronto. Shortly before 11 p.m. on July 10, 2018, Mr. Patrick Prince – a neighbour – called 911 to report a fire in Ms. Garcia’s unit. The fire station was located a very short distance away and firefighters were on the scene within minutes. The fire was a relatively small one on the top of the kitchen stove in her unit. While small in size, this fire produced a large quantity of smoke that filled the apartment to within a few feet of the floor level. The fire was swiftly extinguished and the smoke evacuated. There was some smoke damage in Ms. Garcia’s unit and some damage to the stove itself. There were no physical injuries to anyone.
[2] Ms. Garcia was found inside the apartment by firefighters and was subsequently taken into custody by police. She is charged with intentionally or recklessly causing damage by fire to property not entirely her own at 35A Henry Lane Terrace contrary to s. 434 of the Criminal Code and of willfully causing damage to property at the same property thereby committing mischief that caused danger to the life of occupants of 35 Henry Lane Terrace contrary to s. 430(2) of the Criminal Code. She re-elected trial by judge alone at the outset of trial and was tried before me.
Background Facts
[3] The trial was a short one and few of the facts are subject to any material dispute even if the inferences to be drawn from them are. The parties were able to provide me with an Agreed Statement of Facts that dealt with some of the essential elements of the offences before me and a total of five witnesses were called: two neighbours plus the three attending firefighters.
[4] On July 10, 2018, Ms. Garcia was a tenant of Toronto Community Housing Corporation in at 35A Henry Lane Terrace. The parties agreed that the fire[^1] of July 10, 2019 caused damage to her unit 35A that cost her landlord TCHC $15,890.11 to repair.
[5] The housing development in question is a townhouse complex. The townhouses abut each other in a row and each townhouse is itself divided into four units – two on the first level and two on the second level. There is a common lobby or small vestibule leading to all four units, the two doors at the front leading to the first or lower level A and B units (on the right and left side upon entering), the two doors at the back of the same lobby giving on to stairs leading to the two upper units. The lobby is reached by climbing a small number of stairs – three or four – from the street level.
[6] Witnesses (and photos) described the first level units in this development only. Ms. Garcia’s unit was a compact bachelor suite with a combined bedroom/living room and dining area at the front (nearest the street), a kitchen behind that and finally a bathroom at the back of the unit, the latter two rooms being reached along a hallway (along the wall on the vestibule side of the unit). The only exits from the unit are the door into the small common lobby and sliding glass doors leading to a small balcony area extending the width of the unit. A railing approximately one metre in height separates the balcony from the stairs leading up to the lobby or the short drop from the balcony to the ground itself. There are no windows in the unit beyond the pair of sliding glass doors at the front of the unit (which take up about half of the front wall).
[7] Ms. Garcia had two neighbours on July 10, 2018 who testified at the trial. Mr. Patrick Prince lived at Unit 33A. His unit shared a common wall with Ms. Garcia’s unit. He described the wall as being relatively thin such that sound travelled quite easily between the two units. Across the vestibule from Ms. Garcia was Mr. Murray Hodge at Unit 35B. While he also described the sound insulation between the units as being relatively poor, the intervening lobby area meant that it was relatively difficult for him to know whether sounds he noticed came from Ms. Garcia’s unit or from one of the other two units with doors leading into the same vestibule area.
[8] Mr. Prince and Mr. Hodge were both home for most of the afternoon and evening on July 10, 2018. Mr. Prince was absent from his unit only briefly – once to visit the nearby liquor store (between 5:00 and 6:00 p.m.) and once to visit the nearby grocery store (just before 11 p.m.). Whereas he could normally hear when Ms. Garcia had visitors, he did not recall hearing any visitors to the unit that afternoon or evening apart from one visit mid-afternoon (near 3:00 p.m.). Mr. Hodge was not prepared to speculate about whether Ms. Garcia was alone or not as it was not something he remarked upon given that he could not determine the source of any noises that he did hear from that side of his unit without getting up to look (which he did not do).
[9] I accept Mr. Prince’s evidence as far as it goes, but it does not go very far. There is no evidence that anyone was in Ms. Garcia’s unit after about 3 p.m. on July 10, 2018. However, the lack of positive evidence does not in and of itself establish the negative fact. The unit was obviously not under constant surveillance. I shall return to this question further below.
[10] There was some evidence suggesting that Mr. Prince’s observations may have been impaired by the consumption of prescription medications in combination with alcohol. I have not found this to be a relevant factor. I am satisfied that Mr. Prince’s capacity to observe and report was not impaired at the relevant time and I found him to be a remarkably careful and precise witness. He knew what he knew and he knew what he did not and was not at all shy to be vocal about the difference. While Mr. Prince’s memory may have been impacted to some degree – a fact he candidly admitted – he was clearly able to distinguish between what he could remember and what he could not.
[11] Mr. Prince described returning home to his apartment at about 10:50 p.m. on July 10, 2018 after a brief visit to a nearby grocery store. As he turned the corner he noticed smoke coming from the building. While he thought at first the smoke was coming from his own unit, upon getting closer he realized that the smoke was coming from Ms. Garcia’s unit at 35A. He quickly ran into his own unit to see if his cat was alright or if the fire had spread into his unit. He could smell some smoke inside his own unit but the common wall was not hot and his cat was fine. Having satisfied himself on this front, he then ran next door and tried to ring Ms. Garcia’s doorbell. This achieved nothing because her doorbell was broken – something he knew but had not recalled at the point that he rang the bell. He then rang Mr. Hodge’s doorbell across the lobby from Ms. Garcia’s unit. This was a doorbell that he knew did work. Mr. Hodge answered the ring and Mr. Prince was able to alert him to the fire.
[12] For the next little while, Mr. Prince attempted to gain Ms. Garcia’s attention by knocking on her door (inside the vestibule) or shouting into her unit from the street trying to get her attention and get her out of the unit and away from danger. Somewhere in this time frame he also placed a call to 911 – he was unsure when exactly he did so.
[13] Mr. Hodge for his part did much the same thing. He had not noticed the smell of smoke until he opened the door in response to Mr. Prince’s ring. He too knocked on Ms. Garcia’s door and at one point stepped out of the vestibule far enough to see over into Ms. Garcia’s balcony (directly beside the stairs), taking care to have retrieved his own keys from his apartment to ensure that he would not find himself locked out.
[14] Mr. Prince described the balcony doors to Ms. Garcia’s unit as being closed when he first tried to get her attention by shouting into the unit. After a period of shouting to alert Ms. Garcia of the danger, Ms. Garcia opened the sliding door to the balcony and “crawled” out. There was a great deal of smoke billowing out of the glass doors at this point. She looked up at him with a smirk and said “I think I smoked a joint”. Having made this statement, Ms. Garcia crawled back inside the unit and closed the balcony door.
[15] The balcony to Ms. Garcia’s unit is adjacent to the stairs leading to the vestibule and gives directly on to the street side of the property. Mr. Prince was only a few feet away from Ms. Garcia when he saw her and heard those words. He was unshaken on cross-examination and was quite certain that he quoted her exactly and precisely. I accept Mr. Prince’s evidence regarding this brief encounter.
[16] Mr. Hodge had a slightly different account of this same event but did not contradict Mr. Prince in any material way. Mr. Hodge came outside to the stairs some time after Mr. Prince had done. By the time he came outside, the balcony door was open and he described Ms. Garcia as lying on the balcony, face down. She was half in and half out of her unit. He tried to alert her to the smoke and persuade her to get out. Her voice appeared to him as somewhat garbled and mumbled. He heard her say “something about a joint”. The smoke that he could smell was not marijuana – it reminded him more of an electrical fire. Mr. Hodge did not mention seeing Ms. Garcia return to her unit and close the balcony door.
[17] After this incident, Mr. Hodge and Mr. Prince had a brief discussion about what to do next. Mr. Prince advised that he had already called 911. Mr. Hodge resumed knocking on the door and calling to Ms. Garcia. Shortly thereafter the fire department arrived and took over the scene. The last he saw of Ms. Garcia’s unit was when the fire department appeared to be getting ready to break the door down. He also glimpsed Ms. Garcia when she was being led away but had no further interaction with her.
[18] Both Mr. Hodge and Mr. Prince testified that the smoke detector in Ms. Garcia’s unit had been going off relatively frequently in the days leading up to this incident. Mr. Hodge noted that the detectors are quite sensitive and, in those small bachelor apartments, had a tendency to go off every time the kitchen was being used, requiring the tenant to take steps to clear the air and stop the alarm. In Ms. Garcia’s case, the alarm kept ringing seemingly “until it got tired”. By this Mr. Hodge meant that Ms. Garcia did not appear to take the steps others such as he normally did to clear the alarm when it rang. While Ms. Garcia’s alarm had been heard from frequently in the days leading up to the incident, it was not heard by either witness on the day of the incident.
[19] Captain Centra was captain of the first fire truck to respond to the call. The other two members of his crew were Firefighter Chisholm and Firefighter Dolman.
[20] Having failed to receive any response from Ms. Garcia upon knocking on the door and announcing the presence of firefighters, Captain Centra directed his crew to defeat the lock and open the door. They did so in less than one minute using a pry-bar and the blunt side of an axe. Finding the unit filled with smoke, the three of them donned their breathing apparatus and masks before entering unit 35A. They already wore protective equipment. Captain Centra also had a thermal imaging camera that enabled him to detect heat sources such as fire or people. He was trained in the operation of the TIC and used it frequently as part of his duties.
[21] The first priority of Captain Centra was to locate any humans in the unit in order to evacuate them safely. The unit was quite filled with smoke that extended approximately ¾ of the distance from the ceiling to the floor.
[22] Captain Centra described visibility as very poor due to the smoke. There was a mild level of contradiction between Captain Centra on the one hand and his two crew members on the other hand as regards the density of the smoke. Captain Centra said that he could see only a short distance in front of his face. Firefighter Chisholm and Firefighter Dolman said they could see several feet in front of them. Firefighter Chisolm was able to see his Captain walking in front of him at all times while Firefighter Dolman could see the stove from the entrance to the kitchen. Some of the differences in these observations could be due to differing points of observation. The two junior firefighters reported walking in something of a crouch and the smoke was less dense at lower levels whereas Captain Centra was actively scanning using his TIC. At all events, I find that there was some visibility in the unit when firefighters entered it permitting Firefighter Chisholm and Firefighter Dolman to make the observations they reported having made in their testimony.
[23] The three firefighters followed standard procedure upon entering the smoke-filled unit. They followed the right-hand wall around knowing that this would eventually lead them back to their starting point and a possible safe exit if needed. Captain Centra used the TIC to search for the heat signatures of any people in the unit while the other two examined the apartment physically with hands, feet and eyes to the extent visibility permitted (as it did at ground level). They followed the wall to the balcony doors, followed that wall around to where the bed lay on the ground. No heat signature was detected in the front part of the unit nor did any of the firefighters see anyone (the bed was at ground level).
[24] While in the unit, Captain Centra noticed that the wired-in smoke detector had been removed from the ceiling and was sitting on a chair. None of the witnesses – neither the neighbours nor the three firefighters – heard a smoke alarm emanating from Ms. Garcia’s unit during this incident. I find that the smoke detector had been disabled at some point prior to the fire breaking out.
[25] The three firefighters led by Captain Centra scanning with the TIC continued searching for anyone in the unit, following the kitchen wall to the hallway and from there to the entrance to the kitchen.
[26] Using the TIC, Captain Centra could see some embers and a heat signature in the kitchen. He did not detect the heat signature of a person in the kitchen and so continued his right-hand search further into the unit. Firefighter Chisholm and Firefighter Dolman attended to the embers in the kitchen while Captain Centra continued alone to the next room down the hallway being the bathroom.
[27] Captain Centra’s TIC detected a heat signature in the bathroom. An individual was found standing in the bathtub. That person was identified by Captain Centra as Ms. Garcia. Ms. Garcia was standing with her back to Captain Centra and did not respond to his efforts to persuade her to evacuate. Captain Centra then took the shower curtain, wrapped it around Ms. Garcia and proceeded to evacuate her from the unit.
[28] No other person was found in the unit by any of the firefighters.
[29] Firefighters Chisholm and Dolman dealt with the fire in the kitchen. Firefighter Dolman could see a number of items of fuel that had been wedged under the right front burner. There were visible embers and smoke emanating from this source. He could not tell if the burner was on because the heat of the burner would not penetrate his protective clothing. However, one of the burner knobs was visibly “on” and he turned it off. He could not say what setting the knob was turned to. He then picked up the smoldering items of fuel and the burner itself and brought them all over to the sink where these were doused with water and any fire swiftly extinguished.
[30] Firefighter Dolman was able to identify the items of fuel that he removed from beneath the stove top from a picture taken afterwards of the items in the sink. The items removed were an aluminum foil box, a jar of peanut butter and a dark coloured cloth of some sort. The box was charred and only partly burnt. The jar was somewhat melted on one side while the cloth had some char marks upon it.
[31] The two of them then pulled the stove out and unplugged it. The burners were then removed and Firefighter Chisholm who had the hose with him applied water to the area under the burners to douse the embers that were visible there. Neither was able to identify the source of the charred mess found in the area underneath the burners. Both of them agreed it could have been food although Captain Centra who alone (of the three firefighters) remarked upon the smell of the smoke said that it did not have the smell of a typical pot-on-stove kitchen fire.
[32] The fire was out. There was no sign of any fire anywhere else in the unit but on the stovetop. The fire had not spread to any other place. It was not burning with open flame by the time firefighters arrived – the only thing visible was some embers and of course a lot of smoke.
[33] The three firefighters then left the scene. They were on site for about ten minutes.
Issues to be argued
[34] The identity of the accused and time and place of the offences alleged are all admitted. The fact that the fire caused damage to 35A Henry Lane Terrace, a property owned by TCHC (and not Ms. Garcia) is admitted as is the amount of that damage ($15,890.11). The authenticity of the crime scene photographs was also admitted.
[35] In the case of the first count of the indictment (intentionally causing damage by fire to property not wholly owned by her, contrary to s. 434 of the Criminal Code), the following essential elements are required to be proved by the Crown beyond a reasonable doubt:
a. That the accused caused damage to property by fire;
b. That the accused intended the fire to cause damage to property or was reckless whether damage ensued or not; and
c. That property was in fact damaged that was not wholly owned by the accused.
[36] In the case of the second count of the indictment, mischief to property that caused danger to the life of the occupants of 35 Henry Lane Terrace contrary to s. 430(2) of the Criminal Code, the Crown must prove the following essential elements beyond a reasonable doubt:
a. That the accused interfered with the property identified as 35A Henry Lane Terrace in one of the ways described in s. 430(1)(a)-(d) of the Criminal Code;
b. That her conduct in so doing was without lawful excuse or colour of right;
c. That her conduct was wilful; and
d. That Ms. Garcia’s conduct caused actual danger to life.
Discussion and Analysis
(a) Arson contrary to s. 434 of the Criminal Code
(i) Did the accused cause damage to property by fire?
[37] There are a number of discrete questions to be examined in assessing the evidence in relation to this essential element.
[38] Was there a fire? There was certainly a lot of smoke. The smoke was described by the witnesses who observed it and smelled it as being the product of combustion (i.e. burning of some kind). All three firefighters observed live glowing embers present on the stovetop from which the smoke was emanating. The dousing of those embers caused the production of smoke to cease. There was a fire and it was situate on the stovetop. No other source of fire or smoke was located and the smoke was rapidly evacuated from the unit once the embers on the stovetop were extinguished. There can be no doubt that there was a fire underway at 35A Henry Lane Terrace when firefighters arrived on the scene at about 11:00 p.m. on July 10, 2018. That is the fire that they extinguished.
[39] In addition to the damage to the stovetop itself caused by the fire, the smoke produced by the fire caused further damage to the property at 35A Henry Lane Terrace. What damage to property that occurred that night was clearly caused by the fire that broke out on the stovetop. The fire was the means by which the damage to property occurred.
[40] The principal issue to be examined here is whether the fire was caused by the accused as alleged or by some other means be it accident or the actions of a third party. In examining this question, the evidence is necessarily circumstantial. The accused admitted nothing and no witness saw the fire break out. Where proof of the guilt of the accused depends upon circumstantial evidence, I must of course keep in mind the admonition that we regularly give to juries: the only reasonable conclusion available from an examination of the evidence must be guilt. In other words, if an inference that is not consistent with guilt is reasonably available considering all of the evidence or the absence of evidence, then the matter cannot be taken as proved beyond a reasonable doubt.
[41] Reasonable doubt is founded on the existence of reasonable inferences drawn from the evidence or the lack of evidence. The Crown is not required to contradict every single possible inference no matter how far-fetched in the light of ordinary human experience. Juries are not required to abandon common sense any more than judges are.
[42] What then is the state of the evidence regarding causation of the fire?
[43] I start with the physical evidence of the fire itself. The fire was confined to the stovetop. Whatever fuel was originally present when the fire was first ignited[^2], three items of fuel were still present and smoldering to some degree when observed by Firefighter Dolman: the aluminum foil box, the black cloth and the plastic peanut butter jar. Each of these were found to be charred to some degree and were smoldering. This is why Firefighter Dolman picked them up and brought them to the sink to be doused. These three items had been jammed in under and around the right front burner. One of the burner switches was on.
[44] The defence urged me to consider the possibility of accident arising from a mechanical defect of some sort in the stove. In this regard, I was urged to examine the lack of evidence of any investigation of the make or model of the stove to determine if there had been any recalls or noted defects. The thesis of accident runs up against the hard realities of common sense:
a. There is no evidence of any such defect or recall – the mere prospect that one may have existed absent some evidence does not take the matter beyond mere speculation;
b. The fire in this case was fueled by material that was placed under and around the burner in an unusual and clearly deliberate fashion consistent only with a desire that the burner cause combustion of that fuel; and
c. A burner was actually observed in the “on” position while the fire was underway, a circumstance that strongly suggests that an accidental short or other electrical mishap was not the source of heat that ignited the fuel while the burner found in the “on” position was.
[45] The physical evidence leads ineluctably to the conclusion that the fire was deliberately set. I so conclude. No other explanation is reasonable. Whether the electric burner was in fact sufficient to the task is not relevant – if the burner was broken or had to be supplemented by a match or some other source of heat, that too would be a deliberate act. The fire was deliberately set where it was in fact set – in and around a burner on the stovetop with fuel brought there and arranged for the specific purpose of serving as fuel for a fire. It matters not whether the burner actually did the job or, having failed, was supplemented by something else. It was a deliberate fire in either event.
[46] Having found the fire to have been deliberately set, who set it? Once again, I start by examining the available evidence.
[47] Ms. Garcia was the tenant of the unit. There is no evidence that any other person had access without her permission. She had control of the unit and she was actually inside the unit at the time the fire was discovered. The door was bolted shut when firefighters arrived and had to be forced open. There is no evidence that any other person was in there at the relevant time. No one was observed leaving the unit after the fire was discovered by Mr. Prince and it was under continuous observation from that point until firefighters arrived. They found no one else in the unit either.
[48] Ms. Garcia’s behaviour at the time as observed by witnesses is not reasonably consistent with anyone else having been in the unit at that time. She did not call for help in dealing to deal with a hypothetical intruder at any time, including when she opened the balcony door and spoke to Mr. Prince.
[49] Ms. Garcia’s observed behaviour was also quite consistent with her being aware of the existence of the fire and having no objections to that state of affairs. The apartment was full of smoke. It was impossible not to notice it. Her only response to repeated knocking at her door and shouting directed at her balcony was to open the balcony door and make a comment that was understood by both listeners to attribute the self-evidently heavy smoke to a manifestly impossible source: smoking a joint. Furthermore, after this interchange she then made her way past the kitchen to the bathroom where she was found only a few minutes later standing in the bathtub.
[50] The defence suggested that it was possible some third party had been present in the apartment and set the fire, leaving the unit at some point before Mr. Prince arrived on the scene and called 911. The defence pointed to a visitor having been observed around 3:00 p.m. by Mr. Prince.
[51] The Crown is not held to disprove every possible scenario. It must only disprove those which are reasonable in the circumstances. Mr. Prince neither heard nor observed any visitor after 3:00 p.m. and, despite two relatively brief absences, he was in a position to hear a visitor over the eight hours following that visit before the fire was discovered. A negative fact can never be proved with absolute certainty, but that is not the standard the Crown has to meet. Fanciful or hypothetical possibilities can always be raised, but they must have an air of reality to them that has some reasonable foundation in the evidence. That is simply not the case here. This fire cannot rationally or reasonably be attributed to the actions of a mysterious third party.
[52] In my view, the physical circumstances of the fire, Ms. Garcia’s exclusive control of access to a fully-locked apartment, her presence in that apartment and her observed behaviour after the fire was discovered are all reasonably consistent with only one conclusion: the fire was set by her deliberately.
(ii) Did the accused intend the fire to cause damage to property or was she reckless whether damage ensued or not?
[53] It is now settled that arson pursuant to s. 434 of the Criminal Code is a general intent offence: R. v. Tatton, 2015 SCC 33 at para. 47. The mental element required to be proved is the intentional or reckless performance of the illegal act which in this case is the causing of damage to property by means of fire.
[54] While there is some evidence[^3] - and only some – that Ms. Garcia may have been impaired to some degree at the time the fire was set, intoxication short of automatism is not a defence: Tatton at para. 47.
[55] Having found that Ms. Garcia set the fire deliberately, I also conclude that she had the requisite intent to cause the damage that ensued. This was so whether she foresaw the fire being the instrument of the damage that followed or whether she was merely reckless as to the likelihood of that outcome. The situation is analogous to the one posited in Tatton (at para. 58) of a person who drops a burning towel on a carpet. Having set the towel on fire, it matters not whether the person who dropped it intended to burn the carpet or was simply reckless whether that damage ensued.
(iii) Was the property in fact damaged by fire and was that property not wholly-owned by the accused?
[56] Paragraphs 4 and 5 of the Agreed Statement of Facts contain admissions that TCHC owned the unit (not Ms. Garcia) and that her unit sustained $15,890.11 in damage because of the alleged fire.
[57] In view of my findings that the fire was not an alleged fire (as referenced in paragraph 5 of the Agreed Statement of Facts) but an actual fire, these admissions fully discharge the Crown’s burden of proof as regards this third essential element. The property that I have found was damaged by fire being 35A Henry Lane Terrace was not owned by Ms. Garcia. The fire that actually occurred caused $15,890.11 in damage.
(iv) Conclusion regarding arson
[58] In summary I find that the Crown has proved beyond a reasonable doubt:
a. that Ms. Garcia caused damage to 35A Henry Lane Terrace, a property she did not own;
b. that she caused that damage by means of a fire that she caused to be ignited by her deliberate actions; and
c. Ms. Garcia caused the fire to be ignited knowing that it would cause damage to the property or reckless as to whether such damage ensued or not.
[59] A guilty verdict will accordingly be entered on Count 1 in the indictment.
(b) Mischief causing danger to life contrary to s. 430(2) of the Criminal Code
[60] Mischief is defined in the Criminal Code in s. 430(1), different levels of punishment being prescribed in the subsections that follow based upon the type of property involved (computer data, property in a testamentary instrument, religious property, etc.) or collateral risks arising as a result of the criminal activity.
[61] There can be no reasonable doubt that the actions of Ms. Garcia and the intent with which she undertook those actions reviewed in relation to Count 1 of the indictment (arson) constitutes mischief to property as that crime is described by s. 430(1) of the Criminal Code. The fire that produced the smoke that filled her apartment was intentionally set by her. She did so willfully in that she knew that damage to a property – her apartment – would ensue or she was reckless to that likely consequence. She had neither lawful excuse nor colour of right in setting the fire. A material level of damage to that property actually ensued. The substantial issue remaining to be decided is whether that act of mischief causing damage to property also caused “actual danger to life” within the meaning of s. 430(2) of the Criminal Code.
[62] In the context of a fire set in a dense urban setting, there would not often be much room for doubt as to this last element. Fires are dangerous and can spread. The danger to human life posed by a fire that has spread or has the capacity to spread in a dense urban development such as this one is plain and obvious. When I refer to the “capacity to spread” I mean “without further intervention by the accused”. Holding a lit match in a bare concrete room containing no fuel for a fire poses no risk to human life; walking that lit match into a room containing open containers of gasoline does. For a fire to spread (or persist) it needs fuel, oxygen and heat. Fire supplies its own heat, increasing the prospects of propagation as only two further ingredients instead of three must be found.
[63] In my view, the Crown has not proved this last essential element of the charge beyond a reasonable doubt on the facts of this case.
[64] The fire described by the two firefighters who made detailed observations of it was on a stovetop. It involved a finite, identified amount of fuel: a cloth, a plastic bottle and a carboard aluminum foil box and possibly some other items that had burned to an unrecognizable burnt mass by the time firefighters arrived. This fire had not yet spread anywhere else in the kitchen. Nothing else was burnt. No flammable fuel appears to be located close to it.
[65] There is scant evidence before me that this fire had any capacity to spread further without further assistance from human hands. There was no open flame (apart from smoldering embers) when firefighters arrived. There is no evidence before me from which I might conclude that the fuel that was present was in the presence of a heat source or flow of oxygen able to coax a greater degree of combustion from it than had already occurred. I have grave doubts that this fire could have spread further without some further intervention.
[66] The Crown suggested that embers might spread the fire. To do so, they would have to have a source of energy to move them (wind or convection currents). There is no evidence that this was a risk – the doors were closed and the kitchen was in a side room. The fire was only smoldering and there is no evidence that it was progressing towards a critical mass of heat, fuel and oxygen to fuel a break-out. Stated differently, there is no evidence from which I might conclude that this fire was still growing in intensity as opposed to diminishing. It may have been still been growing and, were that the case, it may have posed an actual risk to human life. Or it may not. That is the stuff of reasonable doubt. I cannot fill that gap with inferences absent solid facts justifying the inference.
[67] There was a great deal of smoke and smoke could endanger human life. However, there is no evidence that there was anyone else in 35A apart from Ms. Garcia. She was ambulatory and conscious. She was in no danger from the smoke unless she chose not to take steps to avoid it either by extinguishing the fire she set or by exiting the building. There is no evidence that a life-threatening quantity of smoke could penetrate any of the other units in the building. Mr. Hodge reported no significant smoke in his unit and there was no evidence regarding any of the other units in 35 Henry Lane Terrace. Mr. Prince lived at 33 Henry Lane Terrace and did not report smoke to more than an annoying level at all events.
(i) Conclusion re mischief
[68] I have found that the Crown has proved beyond a reasonable doubt all of the elements of mischief to property endangering human life save the last one – that any human life was actually endangered. A verdict of Not Guilty will be entered under Count 2 of the indictment. The Crown has proved all of the elements of mischief to property. Since the property in question – 35A Henry Lane Terrace – is not one of the types of property listed in s. 430(3) of the Criminal Code, I must find Ms. Garcia guilty of the included offence of mischief to property simpliciter pursuant to s. 430(4) of the Criminal Code.
Disposition
[69] For the foregoing reasons, I find Ms. Garcia guilty of Count 1, Not Guilty of Count 2 but Guilty of the included offence (under Count 2) of Mischief to property (s. 430(4) of the Criminal Code).
___________________________ S.F. Dunphy J.
Released: August 28, 2019
[^1]: The Agreed Statement of Facts refers to an “alleged” fire. I have found as a fact that the incident that brought the firefighters to this unit was an actual fire even if it produced considerably more smoke than open flame.
[^2]: There was evidence of charred debris under the burner where the fire was found to be burning when firefighters arrived but it could not be said what the source of that debris was.
[^3]: Mr. Hodge referred to Ms. Garcia’s words uttered from the balcony as “garbled” and “mumbling” and said that she did not appear to him to appreciate the severity of the situation.