COURT FILE NO.: CR-18-0069-000
DATE: 2019-11-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen
J.A. McGill, for the Crown
- and -
Cody Plummer
R. Poirier, for the Accused
Accused
HEARD: September 6, 2019, at Thunder Bay, Ontario
Madam Justice T. J. Nieckarz
Reasons For Judgment
OVERVIEW
[1] Mr. Plummer stands charged with arson contrary to s. 434 of the Criminal Code, and conspiracy to commit arson contrary to s. 465(1)(c) of the Code.
[2] The Crown alleges that Mr. Plummer conspired with Emilie Rossi to have her set a fire at an abandoned home located in Gorham Township, Ontario on March 27, 2017.
[3] Ms. Rossi also faced charges with respect to the incident and has admitted that it was she who went to the property and started the fire. Prior to the date of the trial she plead guilty and has served her sentence. No particulars of her plea were provided. She was sentenced to 89 days’ custody. She served part of her sentence in jail on weekends, and part of it under house arrest.
[4] Ms. Rossi alleges that while she was the only one to start the fire, Mr. Plummer was active in planning it – right down to the date, time, location and instruction on how to do it. She claims that in March of 2017, she was a vulnerable young woman who was seeking the ‘wrong kind of attention’. She executed the plan with the hope it would engender a romantic relationship with Mr. Plummer.
[5] The defence argues that the court ought to be suspicious of Ms. Rossi’s evidence and her motives. The defence suggests that she has a motive to fabricate her evidence.
[6] The defence alleges that, after occasionally joking with Mr. Plummer about setting fires, Ms. Rossi took things too far in order to get his attention and forge a romance with him. When the romantic connection failed to materialize and she was facing criminal charges for her actions, Ms. Rossi felt angry and betrayed and pointed the finger at Mr. Plummer. The defence urges me to reject Ms. Rossi’s uncorroborated evidence for that of Mr. Plummer. Mr. Plummer adamantly denies the allegations.
[7] The parties offer competing versions of the events. An assessment of credibility is thus central to determining whether the Crown has proven its case beyond a reasonable doubt.
THE EVIDENCE
Background
[8] Mr. Plummer and Ms. Rossi had mutual friends and interests. They met through a car club group, that gathered periodically, and through the Lappe Fire Department. They became friends who met occasionally. Most of their interaction was via social media: text messaging or Snapchats. They did not have a romantic relationship. However, Ms. Rossi testified that she found Mr. Plummer attractive and hoped for something more.
[9] In March of 2017, Mr. Plummer worked as a security officer and he was also a volunteer firefighter at the Lappe Fire Department.
[10] Ms. Rossi lived in Lappe and was, at one point, a volunteer firefighter herself. Mr. Plummer and Ms. Rossi shared an interest in fires and firefighting.
Discussions About Fire
[11] Ms. Rossi testified that early to mid-March, she and Mr. Plummer watched videos of fires. They also talked about how they had heard of firefighters starting fires to create work for themselves. The conversation turned to Mr. Plummer asking Ms. Rossi if she wanted to help him set a fire that he could fight. Ms. Rossi acknowledged that the conversation began as a joke.
[12] As the date for the fire approached, they increasingly discussed the details. Ms. Rossi no longer felt it was a joke. She felt that Mr. Plummer was “harassing her” by social media and by phone. He wanted a fire set but did not want to be the one to do it.
[13] Ms. Rossi testified that approximately a week before she set the fire, the plan became more real, as she and Mr. Plummer discussed different buildings in the area as the target. She claimed that Mr. Plummer became excited when she raised the prospect of an abandoned home.
[14] Many of the discussions are alleged to have taken place over Snapchat – a social media platform in which messages disappear after having been read, unless a screenshot is taken of them.
[15] Ms. Rossi testified that March 27 was the agreed-upon date of the fire. Mr. Plummer chose the date and she confirmed her availability. They agreed that Mr. Plummer would call her that day to let her know when he was finishing work and when he would be available if paged by the fire department. It was very clear to Ms. Rossi that Mr. Plummer wanted the fire to happen and that this was not a joke.
[16] According to Ms. Rossi, the plan was for her to set the fire and alert Mr. Plummer. He would fight the fire and they would meet after.
[17] Mr. Plummer’s evidence differs from Ms. Rossi’s. He did not deny having discussions with her about fire, an interest they shared. However, he said the conversations were generic musings about firefighters wanting to fight fires instead of sitting around at the fire station, about how fires are started, and about fire-fighting tactics. He denied that there was anything more than these casual conversations. Nor was there any talk of a specific target, or a confirmed date, or of burning anything down. He further denied any plan to meet following the fire.
March 27, 2017
[18] Mr. Plummer testified that March 27 started with him making a social media post that he was “bored on a Monday”. Ms. Rossi responded, “feeling reckless on a Monday”.
[19] That day Mr. Plummer worked from morning until 9:30 p.m. Both parties agreed that they had Snapchat conversations throughout the day. Ms. Rossi claimed that the discussions pertained to their plans to set the fire that night. Mr. Plummer claimed that they pertained to various topics, including generic firefighter topics.
[20] Phone records confirm that Mr. Plummer telephoned Ms. Rossi on March 27, 2017 at 6:14 p.m. Ms. Rossi said that Mr. Plummer called to verify whether the plan to set the fire was still on. She confirmed that it was.
[21] Mr. Plummer testified that there was no real purpose for the call. The two were friends and he called her simply to chat.
[22] The next call took place at approximately 8:55 p.m. Mr. Plummer called Ms. Rossi again. Ms. Rossi testified that it was during this call that he instructed her on how to set the fire to achieve maximum burn. She testified that he also told her to wait down the road for a few minutes, once the fire was set to ensure that it grew. She should then call him to confirm that it was set and then call the fire department.
[23] Mr. Plummer denied having any such conversation. He testified that they did not speak at all about fire during these calls. They simply spoke of what each was doing for the night.
[24] Ms. Rossi stated that following the call, she drove out to the property, went to the back, and lit some tissues. She then drove down the road to a church where she waited a few minutes until she saw the glow of the fire. She called Mr. Plummer at 10:23 p.m. and told him she had set the fire. She asked him what to do. Mr. Plummer instructed her to call the fire department, which she did.
[25] Mr. Plummer acknowledged having received the call at 10:23 p.m. He had picked up his girlfriend, Mallory Hyatt, after finishing work and they were out for a drive. When Ms. Rossi called, he answered through the Bluetooth speakerphone in his car. Ms. Hyatt could hear the conversation.
[26] Ms. Hyatt testified that this was the case. She further testified that Ms. Rossi said words to the effect of “You’re going to love me, I did it”. When Mr. Plummer asked what she had done, she replied that she “lit the fire”. Mr. Plummer then asked if she had called the fire department and she said “no”. He then told her she needed to “call it in”. Minutes later he was paged to the fire.
[27] The police were led to Mr. Plummer through an anonymous CrimeStoppers tip. Mr. Plummer provided the police with Ms. Rossi’s name and some screenshots of social media conversations they had in which she agreed to turn herself in to police.
THE LEGAL FRAMEWORK
The Presumption of Innocence and Proof Beyond a Reasonable Doubt
[28] Mr. Plummer is presumed innocent unless and until the Crown proves beyond a reasonable doubt that he is guilty. This standard of proof is stringent. The Supreme Court of Canada confirmed it in R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320.
[29] The court explained, at para. 39 of Lifchus, that belief in the probable or likely guilt of the accused is insufficient to demonstrate guilt beyond a reasonable doubt. Belief of probable or likely guilt amounts to the failure of the Crown to meet its onus. As a result, acquittal must follow.
[30] If the Crown fails to convince me beyond a reasonable double that Mr. Plummer is guilty, I must acquit him. While I am mindful that it is virtually impossible to prove anything to an absolute certainty, I cannot convict Mr. Plummer unless, based on the evidence before the court, I am sure that he committed the offences with which he is charged.
[31] This case turns on the credibility of the parties in the context of their competing versions of the events. The Supreme Court provided direction on the proper analysis for cases turning on credibility in R. v. W.(D.), [1991] 1 S.C.R. 742, 1991 CanLII 93 (SCC) at para. 28:
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.
[32] In deliberating the case, I may believe all, some, or none of each witness’ evidence.
[33] I must also consider the evidence of Mr. Plummer in the context of all the evidence in the case, including the evidence of the Crown witness, Ms. Rossi when applying the W.D. framework. If, after considering all the evidence I am uncertain as to whom to believe, the presumption of innocence and burden of proof on the Crown require me to acquit: R. v. S. (J.H.), 2008 SCC 30, [2008] 2 S.C.R 152 at para. 11.
Arson
[34] To find Mr. Plummer guilty of arson causing property damage, the Crown must prove each of the following elements beyond a reasonable doubt, per s. 434 of the Criminal Code:
(a) That Mr. Plummer caused damage to property by fire;
(b) That he caused the damage intentionally or recklessly; and
(c) That he was not the sole owner of the property.
Conspiracy
[35] The crime of conspiracy seeks to prevent the harm caused when two or more people agree to act together to achieve a common unlawful purpose: R. v. Nicholson, 2018 SKCA 62, 2018 CarswellSask 374 at para. 10. The actus reus of the crime lies in the formulation of the agreement, tacit or express, to act together in pursuit of a mutual criminal objective: R. v. Alexander, 2005 CanLII 32566 (ONCA) at para. 46. To prove conspiracy, the Crown must show beyond a reasonable doubt both a genuine intention to agree and an intention to achieve the common unlawful purpose: Nicholson at para. 10. A meeting of the minds to affect the common scheme must be established: Alexander at paras. 46-48.
Analysis
[36] The primary question in the circumstances of this case is whether the Crown has proven beyond a reasonable doubt that Mr. Plummer contemplated and formulated an agreement with Ms. Rossi to start an unlawful fire.
[37] The Crown and the defence acknowledge that this turns on an assessment of the credibility of Mr. Plummer and of Ms. Rossi.
[38] The Crown submits that there are significant reasons to disbelieve Mr. Plummer and to conclude that despite Ms. Rossi having physically set the fire, her doing so was a “team effort” as between her and Mr. Plummer. Specifically, the Crown argues that:
(a) Ms. Rossi has nothing to gain from her testimony: she has plead guilty and served her sentence. Her evidence was clear that while she chose the place of the fire, she discussed it with Mr. Plummer, agreed on when it would happen, and followed his advice on how best to set and grow it before calling the fire department.
(b) There are reasons to disbelieve Mr. Plummer’s version of events. His explanation that he called Ms. Rossi at 6:14 p.m. and 8:55 p.m. for apparently no reason, in the context of a day of fire-related social media discussions is not credible. Further, it is incredible that Mr. Plummer – a volunteer firefighter – did not feel the need to call the police or the fire department after Ms. Rossi informed him that she had set the fire. Such a proposition undermines the veracity of his version of the events.
[39] The defence argues that the Crown’s case is premised on Ms. Rossi’s speculation as to the intentions of Mr. Plummer. The defence submits that Ms. Rossi wanted Mr. Plummer’s affection, so she made assumptions about something she thought would kindle a romantic reward.
[40] The defence submits that Ms. Rossi internalized jokes and generic discussions about fires, assumed that Mr. Plummer wanted her to set a fire, and then carried out the act unbeknown to him. When the reward she anticipated did not materialize, Ms. Rossi became angry and turned on Mr. Plummer.
[41] The defence further argues that there are inconsistencies in Ms. Rossi’s evidence, implausible timelines, and references to additional phone calls alleged to have been made on March 27 that are not supported by the telephone records obtained by the police. In addition, Ms. Rossi appeared confused about the timing of some of the March 27 events and about whether certain discussions took place by Snapchat or by phone. Given the evidence of each party that they had multiple discussions on the date of the incident by both phone and social media, and given the passage of time, I find that this confusion is understandable and does not undermine Ms. Rossi’s evidence.
[42] Finally, the defence submits that Mr. Plummer’s evidence is credible and can only lead to the conclusion that he had no plans with Ms. Rossi the night of the fire, as she alleged, nor did he know what she was planning.
[43] I have concerns with aspects of each party’s version of the events. With respect to Mr. Plummer, I am not convinced that his calls to Ms. Rossi during the night of March 27 were as innocent as he claims. There was no evidence that he and Ms. Rossi would phone each other randomly or call to discuss their plans for the night. Both Mr. Plummer and Ms. Rossi testified that most of their communication was by text or social media. They also both acknowledged that a theme of their social media communications, throughout the day, was fire. It is therefore hard to believe that they would not have discussed fire when they spoke.
[44] It is also disconcerting that Mr. Plummer did not appear alarmed on learning, when Ms. Rossi phoned him at 10:23 p.m., that she had set fire to a building. He did not appear surprised nor did he react as would ordinarily be expected of someone hearing from an acquaintance that he or she had just committed arson. This suggests that there were arson-related discussions between him and Ms. Rossi.
[45] I have little doubt that Mr. Plummer was reckless with Ms. Rossi’s affections. However, despite my concerns about his version of the events, when I consider his evidence against the totality of the evidence – including that of Ms. Rossi and Ms. Hyatt – I have doubts that Mr. Plummer intended to agree with Ms. Rossi to realize any discussions they may have had about committing arson. The totality of the evidence does not establish that he had the requisite intention to make out the crime of conspiracy contrary to s.465(1)(c) of the Code.
[46] Our Supreme Court is clear that merely discussing a crime is insufficient to establish the requisite intent for conspiracy contrary to s.465 of the Code. There must be an intention to put the common design into effect: Nicholson at paras. 30-32, citing R. v. O’Brien, 1954 CanLII 42 (SCC), [1954] S.C.R. 666 (S.C.C.). In other words, the Crown must establish both intention and agreement to affect the common unlawful purpose: Nicholson at para 33, citing Mulcahy v. The Queen, (1868), L.R. 3 H.L. 306 at 317.
A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties [is] punishable if [it was] for a criminal object …
[47] While there may have been fire-related discussions between Ms. Rossi and Mr. Plummer, I cannot conclude with the certainty required to convict that those discussions were more than musings which may have been misunderstood by Ms. Rossi.
[48] Fatal to the Crown’s case is Mr. Plummer and Ms. Hyatt’s evidence that they had made plans to spend the night together, once Mr. Plummer had finished work. Ms. Hyatt was with Mr. Plummer when he accepted Ms. Rossi’s 10:23 p.m. call via Bluetooth speakerphone. Ms. Hyatt heard the entire conversation.
[49] There was no evidence or allegation that Ms. Hyatt participated in the conspiracy to commit arson.
[50] It makes no sense that Mr. Plummer would plan to commit arson with Ms. Rossi and then rendezvous with her afterward, only to arrange to be with his girlfriend at the same time. Nor does it make sense that he would accept Ms. Rossi’s call – on speakerphone – with his girlfriend overhearing the entire conversation.
[51] It is implausible that a conspirator to arson would discuss the event in the presence of a potential witness. Mr. Plummer’s actions suggest that he did not know that Ms. Rossi would set the fire that night. They likewise suggest that there was no rendezvous plan to follow the arson, as Ms. Rossi claimed.
[52] I find Mr. Plummer not-guilty of conspiracy to commit arson.
[53] That Mr. Plummer is also not guilty of arson follows logically in the circumstances of this case.
“Original signed by” The Honourable Madam Justice T.J. Nieckarz
Released: November 5, 2019
COURT FILE NO.: CR-18-0069-000
DATE: 2019-11-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen
Crown
- and –
Cody Plummer
Accused
REASONS FOR JUDGMENT
Nieckarz J.
Released: November 5, 2019
/lvp