Court File and Parties

COURT FILE NO.: CR-18-19 DATE: 2020/06/29 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Brandon Aubin

COUNSEL: Ron Turgeon, Counsel for the Federal Crown David Isbester, Counsel for the Provincial Crown William Wade, Counsel for the Accused

HEARD: April 12 and April 15, 2019 and March 9 and March 10, 2020

AMENDED REASONS FOR JUDGMENT

LEROY, J.

Introduction and Issues

[1] Mr. Aubin faces four charges. The first three are Criminal Code offences and involve a residential basement fire where he resided on April 6th, 2017, called in at 11:28 a.m. The fourth is under the CDSA involving an allegation of Butane honey oil production.

[2] Conviction requires a finding of fact that Mr. Aubin introduced liquid Butane into the basement of 620 First Street in the City of Cornwall prelude to the fire on the morning of April 6th, 2017.

[3] The context lies in the production of Butane honey oil. Although Mr. Aubin, who testified, acknowledges some familiarity with honey oil production process and had the ingredients and equipment to produce honey oil at his disposal that day, he denies the discharge of Butane as required to convict on any count.

[4] In essence, Mr. Aubin said he awakened that morning between 9:30 and 10:00. He was hung over and decided to mitigate by smoking ground cannabis bud in a bong. The bud was in the basement on a table situated in the northerly area of the northwest quadrant of the basement. He removed a quantity of bud and ground it as he went upstairs where he smoked the shake in a bong. He returned to sleep and was awakened one and a half hours later by noise and smoke.

[5] The Crown case is circumstantial and rests on the evidence of Jason Williams, an investigator with the Office of the Fire Marshall for Ontario. Mr. Williams was offered and accepted on consent as an expert in the assessment and investigation of the origin and cause of fires as well as fire dynamics and explosions including the investigation of tetrahydrocannabinal (thc) extraction processes.

[6] The defence produced a report into the cause and origin of the fire written by Normand Matte, ascribing a different cause and origin of the fire. Mr. Matte became involved in the investigation on behalf of the tenant’s insurer. After voir dire, the Crown agreed to Mr. Matte’s expertise in the field, but not to the reliability of his conclusions which were to be challenged on cross-examination at trial of the substantive issues.

[7] Counsel agreed to the threshold requirements of relevance, necessity, the absence of an exclusionary rule and that both gentlemen were properly qualified in their field. Both witnesses declared an understanding of their primary duty to the Court in the qualification process.

[8] Although Mr. Matte attended for the qualification voir dire and was cross-examined vigorously in respect to his expertise and understanding of his duty to the Court, he did not testify about the content of his report during the trial and has not been cross-examined on its substance.

[9] In that context, Mr. Matte’s report is part of the trial record as a lettered exhibit. Of the hearsay concerns, the concern regarding admissibility of the report is centered on the reliability of Mr. Matte’s perception and sincerity. Mr. Matte did not inspect the site until April 21, 2017. Questioning necessarily would have involved concerns for bias as investigator for the tenant, his assumptions and concern for site integrity by the time he was able to view it.

Essential Elements of the Offences Charged

[10] The essential elements of counts one and two: Arson (disregard for human life – s.433(a) and Arson causing property damage - s. 434 are:

• Mr. Aubin caused damage to a property by fire or explosion;
• Mr. Aubin caused the damage intentionally or recklessly; and
• Mr. Aubin knew or was reckless whether the property was occupied.

[11] To recklessly cause damage by setting fire or causing an explosion is to set the fire or cause the explosion aware of the risk that damage will occur as a result and to proceed in the face of that risk.

[12] As Mr. Aubin resided in the premises with his mother, he knew she was living there at the time of the fire.

[13] As Mr. Aubin resided in the premises as guest of his mother, herself a tenant, Mr. Aubin was not the sole owner of the property.

[14] The questions going to the essential elements of count 4: Mischief Endangering Life – s. 430(1)(b) are:

• Did Mr. Aubin interfere with property;
• Was Mr. Aubin’s conduct unlawful;
• Was Mr. Aubin’s conduct willful; And
• Did Mr. Aubin’s conduct cause actual danger to life?

[15] Wilful conduct is conduct knowing the act will probably cause the occurrence and being reckless whether the event occurs or not.

[16] Subsection 430(2) requires subjective intention to endanger life.

[17] The evidence all in is that although Mr. Aubin would be alert to the risk of damage as the result of introducing butane into the basement, he did not know it would probably cause the destruction of property, nor did he have the subjective intention to endanger life. This charge is dismissed.

[18] Count 6 relates to the Federal Crown allegation that on April 6, 2017, Mr. Aubin unlawfully produced cannabis resin, a section II substance under the Controlled Drugs and Substances Act (CDSA), contrary to s. 7(1) thereby committing an indictable offence under s 7(2)(a.1) of the said Act.

Context

[19] The circumstantial evidence suggesting a Butane vapor ignition flashover is ubiquitous.

[20] The method involved in Butane honey oil production is simple enough. A how-to you tube video was entered as an exhibit at trial. Mr. Aubin owned the requisite equipment including extractors, Pyrex or glass baking dishes, the cannabis inventory, an oil bong and Butane canisters.

[21] Mr. Aubin acknowledged having experience in the past with production but denied expertise.

[22] High quality Butane is the solvent of choice to extract thc from cannabis. The point is to enhance the thc concentration in the end product. Typically, marijuana shake is inserted into an extractor; that is a cylinder fitted with a filter at one end and a fitting to accommodate the Butane canister dispensary nipple at the other. Butane in liquid form is injected into the extractor tube in liquid form. The Butane strips the thc from the cannabis within the extractor. A collection bowl receives the sticky oil resinous product. One pound of thc-quality cannabis will produce between 1/10th to 1/5th of a pound of concentrated thc oil. This varies directly with the thc content of the raw shake in the extractor.

[23] I accept Mr. Aubin’s contention that the cost to process cannabis with low thc levels is disproportionate and that different components of a cannabis plant bear different thc levels. The cannabis buds bear the highest thc concentration and trimmings the lowest.

Butane

[24] Butane’s chemical properties are uncontroverted and are simply summarized.

[25] Butane boils at -1 C (31 F). At room temperature, the liquid Butane injected at one end of the extractor will have largely turned to vapour as the thc oil passes through the filter at the bottom largely unencumbered by Butane residue. The density of Butane vapour is double that of air. This signifies that the Butane vapour will descend through the extractor and subsequently within the compartment in which it is dispensed. Once the receiving vessel fills with vapour the overflow spills over, descends into and diffuses through the surrounding area.

[26] As the vapour diffuses through the surrounding area, it stratifies across the surface of the floor. The flammable range of Butane is 1.8-8.4% per volume of air with ignition temperature of 482 – 538 degrees Celsius. If the concentration of Butane vapour in the ambient air achieves the flammable range, an ignition source generates an explosion or flash fire depending on concentration. An ignition source can be as innocuous as a spark from a switch or static electricity.

Jason Williams’ Forensic Observations

[27] On April 7th, 2017 Mr. Williams entered the scene with warrant and observed:

i. In the laundry room on the main floor, an extractor containing cannabis, a baggie of cannabis and Pyrex dish containing Butane honey oil residue; ii. In the north-west quadrant of the basement (back), immediately south of the natural gas fired hot water tank and furnace, a lounge area (two couches and a coffee table) drug paraphernalia including a grinder, super-slick sheet, cannabis and shatter, a receptacle dish with BHO trace and razor blades. Razor blades are the preferred tool for scraping honey oil from the receptacle; iii. At the southerly end of the south-west quadrant (front), a glass table with three empty 300 ml Butane cylinders together with nine empty London brand 300 ml. Butane cylinders scattered on the floor contiguous to the table. iv. West of the table, a cardboard box containing four empty Butane cylinders, a homemade extractor, cannabis trim in a child’s swimming pool, a Walmart bag full of the same material and two disconnected 1000-watt grow lights. The homemade extractor appears to be a plastic mayonnaise container fitted for thc extraction containing cannabis trim.

[28] The content of the basement was otherwise cluttered. There was a home gym and workshop on the east hemisphere, not recently used. There were boxes and boxes of stored household items piled floor to ceiling on the west side.

[29] Mr. Williams was able by standard testing to exclude a natural gas leak and methane osmosis as sources of flammable vapour in the basement. He was able to identify the area of fire origin and exclude the remainder of the building.

[30] Subsequent testing confirmed the presence of Butane, Iso-Butane and Propane within the two extractors and presence of Butane honey oil (BHO) in the two dishes.

[31] Mr. Williams observed possible ignition sources within the area of fire origin, including non-intrinsically safe electric lighting, the grow lights and the lighters in the room. He did not notice the damaged/failed extension cord connector servicing the aquarium light and pump and the air purifier immediately contiguous to the charred ceiling joists detailed in the Matte report.

Mr. Aubin

[32] Mr. Aubin and his mother, Wanda said that Mr. Aubin had been back in the house for three weeks preceding April 6, 2017 after a hiatus of three months.

[33] Wanda, Mr. Aubin and Keith had resided in the three-bedroom First Street home for between two and three years. Wanda and Keith were attached to the work force. Keith and Mr. Aubin are step-brothers and clashed time to time. Mr. Aubin attributes Keith’s angst to Mr. Aubin’s use/misuse of Keith’s belongings in the home. Wanda attributed discord to one of the dogs. Mr. Aubin was evicted by Wanda after an incident between her sons.

[34] In the interim, Keith obtained employment in the Ottawa area and only returned to Wanda’s home sporadically on weekends. Mr. Aubin’s room had been converted to storage. It contained the mattress photographed on the living room floor after the fire. Mr. Aubin confirmed he slept on the mattress in the living room as it was depicted in the police photographs and the hutch next to the mattress served as his night table. The content of the hutch belonged to Mr. Aubin, including the oil bong, grinder, lighter.

[35] Mr. Aubin is 27 with grade 10. He was unemployed in April 2017. Wanda left the home on the 6th for work before Mr. Aubin awoke between 9:30 and 10:00 a.m. As noted, Mr. Aubin offered an exculpatory explanation. He wanted to return to sleep but the sun shone too brightly in the living room, so he went to Keith’s bedroom where he returned to sleep. The house was otherwise vacant. He heard a sound and arose to investigate, discerned the smoke, realized the house was on fire and removed the dogs. He was wearing gym shorts and a night shirt.

[36] In an interview with one of the firemen (Lamer/Power) Mr. Power understood Mr. Aubin told them he made shatter in the back yard with his brother earlier in the week and Wanda was aware of that. They recall Mr. Aubin telling them that when he went to the basement to grab the bud, he noticed the fish tank was cloudy. Mr. Power was asked on cross-examination if he could be mistaken about when it was that Mr. Aubin said he made shatter in the back yard. He denied.

[37] Mr. Aubin said he told Lamer and Power the truth when he said he tried to make shatter in a prior rental unit back yard years ago. Mr. Power misunderstood if he thought he heard “last week” or the back yard at 620 First Street as part of that discussion.

[38] He acknowledged:

i. Smoking cannabis frequently at all material times; ii. Knowledge of a recent incident in Cornwall where a man died after a shatter production related explosion; iii. He used shatter and honey oil two years prior for pain related to kidney stones. iv. That the cylinder of Butane beside his bed was his – Wanda bought it for him the week before; v. The cannabis and cocaine in the storage room were his; vi. The extractor and cannabis in the laundry room were his – he said the extractor had been placed where it was found before he moved out four months before. He knew the extractor’s purpose was to extract honey oil but he did not know how to do it efficiently; vii. Knowing the correlation between thc content of the shake and the thc content of honey oil – he iterated that the thc concentration of the trimmings in the pool and area was nominal. It had no value for smoking or for efforts at extraction. Rather than a yield of one to ten, it was one to one hundred; viii. The bud on the basement table was his. He put it there because of bud’s strong aroma and he wanted to keep Wanda happy after returning to the home; ix. Ownership of the large quantity of cannabis trim in the child’s pool at the southwest quadrant of the basement. He said he and friend discovered a small grow operation on their 4-wheelers and liberated it. He harvested the best part of these plants and this was trim of no value to him. The only reason it was there was because no one threw it out; x. Ownership of the honey oil bong and lighter on his night table; xi. That honey oil provides better relief whether it be pain or hangover; and xii. That the super slick sheet found on the lounge table is used for cutting honey oil into consumable squares, but that parchment is cheaper;

[39] Mr. Aubin denied:

i. Ownership of the bongs and pipes in Keith’s room; ii. Knowing how to make honey oil efficiently; iii. Using the Pyrex bowl found in the laundry room to make honey oil. He said when he made honey oil, he used an ordinary baking bowl – the Pyrex bowl was returned by a friend as it was found; iv. Ownership of the cannabis found in the laundry room extractor. He loaned it to a friend after unsuccessful attempts at honey oil production – he did not know why it was returned with the bud in it; v. That the 1000-watt glow lights in the basement were functional; vi. Visiting the basement for recreation during the three weeks after return unless with someone to vouch he did not touch Keith’s belongings; vii. Sleeping in Keith’s room fifty percent of the time – he said it was a one-time event because of the hangover and the bright sunlight in the living room. Wanda said 50/50. viii. That the vials on the lounge table next to the Butane torch were his; ix. That he made honey oil with Keith; x. Ownership of the 16 or so empty Butane cylinders in the basement. Those were collected by Keith to fabricate a chimney for his fish hut; xi. That he owned honey oil at the time of the fire as he was impecunious, and it was expensive to buy; xii. Ownership or ever using the superslick in the basement; xiii. Ownership or having ever seen the homemade extractor populated with what appears to be cannabis trimmings found in the southwest quadrant of the basement in the box with empty Butane canisters; xiv. Having ever used the razor blades found on the glass table – he said when he tried to make honey oil, he tried to scrape the oil off the glass with a putty knife; xv. Any Butane extraction activity on April 6, 2017; and xvi. That he extracted honey oil from trim because the relative cost was disproportionate when he could buy the same for $10.00.

Jason Williams and the Photographs – Assessment

[40] I approached Mr. Williams’ testimony, opinions and report with healthy scepticism. The circumstantial evidence noted earlier and Mr. Lamer’s opinion as to the cause of the fire communicated to Mr. Williams raise concern for confirmation bias in his investigation.

[41] Maurice Lamer of the local fire investigation team formed the opinion immediately on investigation that this was a flash fire and, on that basis, contacted the Ontario Fire Marshall’s office. Mr. Williams understood from the initial contact this was a shatter production fire. Mr. Williams is an expert in the investigation of fires caused by Butane gas ignition. As well, I had the benefit of Mr. Matte’s investigation and opinions as to the cause of the fire even though not in evidence. The photographs taken by Detective Carole Walker (Lalonde), numbers 125 and 126, show the epicenter of ignition was in the northerly area of the south-west quadrant and that is consistent with where Mr. Matte discovered failed extension cord connections. The failed connections were on the basement floor immediately south of the hutch.

[42] As our process is intended to get the truth, if process and observational flaws or ambiguities became apparent in how Mr. Williams reached the conclusions he did as to the cause of the fire, it would not do to summarily dismiss Mr. Matte’s opinions.

[43] Mr. Williams is an experienced and qualified investigator into fire origin, cause and circumstances including fire dynamics and explosions, including those arising from thc extraction from cannabis. He is a quality assurance officer for his office and has been qualified now thirteen times as an expert witness on these topics. He has published and lectured across the province on the topic of fire scene Butane honey oil investigation. In the last eight years, he has completed 42 production type fires.

[44] Mr. Williams inspected the scene the day after the fire. Fire prevention officer Lamer sealed the scene as soon as the fire was out.

[45] Mr. Williams described his approach to fire cause analysis. He said, “A fire scene investigation requires the formulation and consideration of various possible theories regarding origin, cause and circumstances…The scientific method was used to make the determination of the origin, cause and circumstances of this fire.”

[46] The scientific method is a well-established protocol that purports to ensure conclusions withstand rigorous objective challenge and review. Mr. Williams emphasized the importance of testing hypotheses at every step.

[47] Mr. Williams depicted the interior flame patterns at pages 7/8 of the report. He considered the fire pattern evidence on the exposed wood floor joists of the basement ceiling caused by the flame front of a flash fire, the fire pattern evidence formed on the combustible cardboard boxes – photo 122, the charring evident in the ceiling joists caused by the fire plume generated by the same combustible cardboard boxes and paper goods and the localized damage to plastic permanent electrical wiring from heat transfer from the flash fire and the same combustible paper products.

[48] He said the only way to achieve the damage depicted in photo 122, exhibit 13 is by flash fire.

[49] A flash fire is a sudden, intense fire caused by ignition of a mixture of oxygen and a dispersed flammable substance such as a flammable gas. It is characterized by high temperature, short duration and a rapidly moving flame front.

[50] Mr. Williams looked for other sources of flammable substances. He excluded methane after exterior bar hole testing. He excluded natural gas for three reasons. Leak testing was negative. He said natural gas is lighter than air and the fire patterns observed in the basement could not have been the result of a flash fire originating from the ceiling. He said that if there was a natural gas leak the fire fighters would have observed a torch effect at the release point and they did not. He inspected the 16 empty Butane containers looking for evidence of rupture that might explain unintentional introduction of Butane into the basement air. The tanks were intact.

[51] He said the fire patterns from this fire were the result of all aspects of the situation in the basement. He believed that the concentration of Butane in the basement was at the lower end of the combustible range. Without ignition, the Butane would have diffused to a concentration beneath the flammable range. The implication is that the Butane was recently introduced into the basement. Without the combustible material as depicted in photograph 122, the flash would have consumed the oxygen in the room and the swoosh would have been the end of the matter with a little charring from pyrolysis.

[52] Mr. Williams was asked to comment on Mr. Matte’s report. He responded by noting the difference between ignition sources, origin and cause. The necessary elements of combustion are a suitable fuel package, competent ignition source and oxygen. He distinguished the ignition source from cause. He analogized by offering that when a person pours gasoline into a confined area and something sparks, for example, the hot water tank heater switches on to ignite the gasoline vapour, the resulting flash or even explosion was not caused by the ignition; rather by the introduction of gasoline to the contained area. No gasoline no fire. The igniting spark was just the ignition source.

[53] Mr. Williams agreed that electric extension cords and connectors do fail. He noted that it is hard to ignite a solid with an arc. If the heat source was the failed connector, the plug may ignite. The fuel source would be the plastic connector which would be two inches square so another fuel source would be required to sustain a long-term burn. His observations were there were none in the immediate vicinity of the failed connector. Mr. Matte neglected to address the ignition properties of the available fuel and as such did not test his own hypothesis.

[54] Mr. Williams noted further that Mr. Matte’s investigation began after the scene was compromised by fire mitigation initiatives.

[55] Mr. Matte said he was advised that Mr. Aubin had not accessed the basement on the morning of the fire. Under the Fire Cause section 5.4 of the Matte report, he wrote:

“The circumstantial information collected by the main witness, Mr. Aubin, indicates that he did not access the basement in the morning and was sleeping at the time of the onset of the fire. In particular, based on the results of our own investigation thus far, we have found no evidence to suggest that Mr. Aubin’s declaration could be false, misleading or inaccurate in relation to the circumstances of the fire. We do reserve the right however to modify or amend our opinion of the witness provided information should the results of the official investigation provide significant evidence supporting other ignition scenarios related to human activities of any kind.”

[56] As to his own observations in section 5.1 page 10 and the four bullet points:

• Bullet 1 and 3: The fire propagation appeared normal and un-accelerated based on the fuel available in the area of the fire origin – Mr. Matte did not identify the “fuel available”. He did not try to explain away the hypothesis of a low-level Butane “swoosh”. The same applies to bullet #3.
• Bullet 2: The fire damage at the low-level was limited to the centre of the basement behind the hutch where the aquarium was installed, while everywhere else the charring and thermal damage was spread at a higher level of the contents and ceiling. This could be that the minimally charred stored materials were dislodged in the fire mitigation process.
• Mr. Matte did not address the fire marshal hypothesis of a low concentration Butane ignition and the ensuing singeing brief flash fire. Photographs 94, 102, 103 and 106 do not match with Mr. Matte’s hypothesis.
• Bullet 4: The flashover transition was not reached in the basement during the fire. When certain organic materials are heated, they undergo thermal decomposition – pyrolysis and release flammable gases. Flashover occurs when the majority of the exposed surfaces in a space are heated to their autoignition temperature and emit flammable gases. If I understand the fire dynamic depicted by Mr. Williams correctly, this fact tends to support the flash fire hypothesis advanced by the Fire Marshal’s office.

[57] In the end, I am satisfied that Mr. Williams brought considerable credible reliable expertise and he would recognize a fire cause distinct from a flammable vapour-based one when he investigated it. He followed the evidence and considered various hypotheses and tested them. His observations were made when the scene was intact and have to be preferred to those of Mr. Matte. His explanation of the flaws in Mr. Matte’s analysis were fair and, in my view, dispositive.

[58] This was the first time Mr. Matte was qualified as an expert witness. Mr. Matte did the best with what he had with a compromised fire scene and there is no reason to question his sincerity. That said, even if Mr. Matte had testified given the caveats in his report, presented with the evidence buttressing Mr. Williams’ opinions, he would not have answers that eroded the reliability of Mr. Williams conclusions.

[59] In summary, Mr. Williams proved that the cause of this fire was the ignition of a flammable vapour heavier than air.

The Governing Principles

Base Principles

[60] The basic premise which is fundamental to all criminal trials is that Mr. Aubin is presumed innocent, unless and until Crown counsel proves his guilt beyond reasonable doubt. This presumption stays with him throughout the trial. The burden of proof is always on the Crown regardless of what evidence defence provides, fails to provide or chooses not to provide. Mr. Aubin does not have to prove anything. I have to determine whether all the evidence has proved that Mr. Aubin introduced Butane into the basement as prelude to the fire.

[61] The standard of proof beyond a reasonable doubt is inextricably intertwined with the presumption of innocence. This is a case of having to assess the credibility of witnesses and involves application of the presumption of innocence. The test is not which side I believe but whether, on the totality of the evidence viewed as a whole, the Crown has proven each essential element of the offense beyond a reasonable doubt.

[62] In this case, both sides can’t be true, but my task is not to solve the question as to which side’s version is more reliably truthful.

[63] The message from the SCC in R. v. W.(D.) is first and foremost that in cases where the defence calls evidence, I am not allowed to approach the determination of guilt or innocence as a credibility contest. The error to avoid is to proceed directly from findings of credibility to finding of guilt beyond reasonable doubt. There is a distinction between findings of credibility and proof beyond reasonable doubt. The burden of proof is always on the Crown and never shifts to the accused. If I believe defence evidence on an element of an offence or if I am not sure about that evidence, I must acquit. Even if defence evidence fails to raise a reasonable doubt about an element, I still have to determine whether Crown evidence, in the context of all the evidence, has proved each element beyond a reasonable doubt.

[64] This means that an adverse finding as to the credibility of the accused or evidence offered on his behalf does not lead inescapably to a finding of guilt nor does it in any way relieve the Crown of the burden of proving the case against the accused beyond a reasonable doubt.

[65] The decisive question is whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. The focus remains on the principle of reasonable doubt.

[66] That said, an outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond reasonable doubt of the truth of the conflicting credible evidence is as much an explanation for the rejection of the accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence – R. v. J.J.R.D., 2006 ONCA 40088, [2006] O.J. No. 4749 (ONCA) – para 53.

[67] A reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice. A reasonable doubt is a doubt based on reason and common sense which must logically be derived from the evidence or absence of evidence. While more is required than proof that the accused is probably guilty, a reasonable doubt does not involve proof to an absolute certainty, R. v. Lifchus, 1997 SCC 319, 118 C.C.C. (3d) 1 (S.C.C.). Proof beyond reasonable doubt falls closer to sound deduction than to proof on a balance of probabilities.

Approach to Credibility and Reliability of Testimony

[68] This is a case where Justice of Appeal O’Halloran’s succinct summary of the test of the truth of a story of a witness in Faryna v. Chorny, 1951 BCCA 252, [1952] 2 D.L.R. 354 at page 357 is on point. He wrote that the real test of the truth of a story of a witness …must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place in those circumstances.

[69] That statement implicitly factors in indicators of reliability and credibility such as whether a witness has reason to give evidence more favourable to one side than to the other, the inherent reasonableness of testimony, internal consistency, uncertainties in respect to details, plausibility and myriad considerations involving a witness’ objectivity, ability to observe, remember and communicate and consistency with other evidence and availability of other sources of information.

[70] There are various potential sources of error when a witness describes events he claims to have observed or experienced: perception; memory; communication; and sincerity. Credibility and reliability are different. Credibility has to do with witness veracity. Is the witness worthy of belief? Are we confident the witness was trying to be truthful and not deceiving us? Reliability has to do with the accuracy of the witness’ testimony. Accuracy engages consideration of the witness’ ability to accurately observe, recall and recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence. Credibility is not a proxy for reliability; a credible witness may give unreliable evidence; R. v. C.(H.), [2009] ONCA 56 – per Watt J.A.

[71] The proper approach to the burden of proof is to consider all of the evidence together and not to assess individual items of evidence in isolation.

[72] I can believe some, none or all of a witness’ testimony.

[73] Mr. Aubin testified. His evidence is assessed in the same way as the testimony of any witness.

Discussion

[74] The Matte written report (not in evidence) does not raise issues about the reliability of Mr. Williams’ process and conclusions.

[75] The essential defining features of hearsay are that the out-of-court statement is adduced to prove the truth of its contents and the absence of contemporaneous opportunity to cross-examine the declarant. It is cross-examination that best exposes defects in perception, memory, ambiguity in communication and want of sincerity.

[76] Out-of-court statements offered for their truth must either fall under a traditional exception to the hearsay rule or the proponent must meet the requirements of reasonable necessity and threshold reliability. Mr. Matte’s report does not qualify under the traditional exceptions. Mr. Matte was available for a fee. Admission is not necessary in that context. In terms of reliability, this is a situation whereby denying the other partiers of the opportunity to cross-examine is fatal. For example:

• Mr. Matte’s theory of the fire does not identify a fuel source. The noted failed extension cord junction may have provided the spark that ignited the Butane gas and originated the fire but the fuel source is unexplained.
• Mr. Matte’s view of the fire scene was compromised by the clean-up work done after Mr. Williams inspected the basement;
• Mr. Matte’s premise as to the absence of human activity in the basement on the morning of the fire is mistaken.

[77] Mr. Wade argued that the defence evidence of Mr. Aubin and Wanda lamenting regular breaker response to overloaded fuses was a possible explanation. With respect, the opposite is the case. A fifteen-ampere line subjected to 16 ampere load is dangerous. That a fifteen-ampere breaker breaks the circuit when the load exceeds fifteen amperes is evidence of user overload, not breaker or wiring deficiency.

[78] It is possible, maybe even likely, that at some point the not-intrinsically-safe extension cord supplement to the home’s permanent wiring would fail and lead to a fire. The fire pattern did not support that conclusion.

[79] Although the hearsay rules are properly relaxed when hearsay is propounded by defence, I had the benefit of both reports and viva voce testimony by Mr. Williams which assisted in assessing the reliability of the Matte report on its face and there is no evidence to doubt Mr. Matte’s sincerity my concern is with his perception and that cross-examination could have turned Mr. Matte’s written untested conclusions. On its own standing, however; the reliability of the report is not readily apparent from the trustworthiness of its content nor capable of being meaningfully tested by the trier of fact.

[80] The Matte report was properly not offered as evidence in the trial and has to be disregarded.

Similar Act and Propensity Reasoning

[81] There is no issue that Mr. Aubin is and has been a confirmed consumer of thc product or that he has experience with the production of Butane honey oil and possibly shatter together with the tools. The issue is whether the evidence connects Mr. Aubin to the introduction of Butane into the basement on April 6, 2017. The Crown correctly did not ask for application of propensity logic in submissions. I am alert to the risk of moral and reasoning prejudice.

[82] I am satisfied that the reference by Mr. Williams to “Person 1 made an utterance that they were not producing “shatter” at the time of the incident, but had produced it before” and reliance on the discovery of 16 Butane cylinders and the two extractors containing cannabis and Butane, Iso-Butane and Propane in the cause analysis section of his report were referenced for narrative and do not derogate from the direct real evidence that drove his opinions.

The Credibility and Reliability of Mr. Aubin’s Evidence

[83] Wanda Aubin provided the sense of ambience that only a loving mother can. She knew her son suffered from kidney stones and the symptoms of nausea and extreme pain and he had a medical prescription for cannabis-based medication.

[84] The Crown submission is that Mr. Aubin tailored his evidence to whatever he thought the Court might buy into. Mr. Aubin’s purpose was to distance himself from recent Butane honey oil production.

[85] Mr. Aubin was consistent from the first interview in denial of having intentionally introduced Butane into the basement of their home during the morning of April 6th, 2017. That said, there are internal inconsistencies in his positions on other areas of the case that tended to be needlessly self-serving or gratuitous when measured against the larger mosaic of the narrative.

[86] Examples included:

• Mr. Aubin asserted storing the baggie of cannabis bud on the table of the basement lounge for olfactory reasons. He offered that cannabis bud, even contained in a sealed baggy, emits a strong aroma so it was better for the relationship with Wanda to store it out of her living area. He respected her space and wanted to keep her happy with his presence in the home. On its face that was laudable policy. He was living in the home on the basis of her good grace and it was in his interests to keep her happy. Yet there were at least two other baggies of cannabis on the main floor in open placement. He said the extractor found in the laundry room had been in the same place since before he was evicted months before because he was too busy to retrieve it. Mr. Aubin said he smoked cannabis in the house when Wanda was out, as if the lingering smell of burnt cannabis and smoke generally are inoffensive to the olfactory senses. None of those suggest sensitivity to Wanda’s sensibilities.
• Mr. Aubin said the expense to extract thc from low concentrate trim was prohibitive. He said he would not waste thousands of dollars on product you could buy for $10. Mr. Aubin said he did not have shatter after return to the house because it is expensive and he was impecunious; Wanda said Mr. Aubin told her he bought shatter in the week before the fire to help with sleep. The premises for each of the three positions are irreconcilable.
• On cross-examination Mr. Aubin initially attempted to distance himself from the content on the shelves of the hutch next to the floor mattress in the living room which included the hash oil bong. He said he moved the mattress in and out of the living room on a daily basis suggesting the living room served the dual purposes of living room and his bedroom. The implication was the content of the hutch could belong to anyone in the home. Wanda said the mattress was a comfortable accessory to watch television in the living room and that Mr. Aubin slept there and in Keith’s room on an equal basis. Ultimately, once plausible denial evaporated, Mr. Aubin acknowledged that the hutch shelf served as his night table and the contents were his alone.
• Mr. Aubin said the 13 empty Butane canisters found strewn on and around the glass table at the southwest quadrant belonged to Keith who was saving them to construct a fish hut chimney. Mr. Aubin asserted that he salvaged two or three containers for Keith under this rubric. The implication is that Keith acquired the empty cannisters from other sources. With respect, the haphazard dispersal of the canisters where they were uncovered belies that assertion. If Keith introduced those containers to the home for the legitimate purpose of chimney construction the cannisters would not be strewn as they were found. It is no coincidence that the bulk of the empty canisters were found scattered in and around the round glass table next to the water pool filled with trim and the home-made extractor. That whole story was a construct intended to diffuse the inference that Mr. Aubin produced honey oil from the cannabis in the pool.
• The same can be said about the explanation for the extractor, cannabis and the honey oil residue on the Pyrex container as found in the laundry room. He loaned the extractor to a friend long ago after failed extraction attempts on Mr. Aubin’s effort. The friend returned the extractor and Pyrex dish to an empty home filled with presumably thc stripped bud and who chose the laundry room sink to deposit the extractor and top of the cupboard for the Pyrex dish. On the one hand Mr. Aubin said he had trusted friends who had access to the home. On the other in response to why the friend would not empty the extractor before returning it he said some people have manners and some don’t. That was misdirection. So was the suggestion that the extractor had been on the sink for over four months.
• Initially, Mr. Aubin said he was too busy to move the laundry room extractor from the sink. After acknowledging he was not employed and demands on his time were nominal in that he had monthly OW appointments, he was looking for an apartment and had periodic medical appointments, Mr. Aubin relented and agreed he had a lot of uncommitted time then. The line about being too busy was a gratuitous attempt to gloss over the unreasonableness of the assertion the extractor had been in the found place for over four months.
• Mr. Aubin asserted that the cannabis in the tub discovered in the southwest quadrant was found. At the time cultivation was an offence. The grow lights, presently functional or not were not there by coincidence. Simple possession was less serious than cultivation. His credibility would have been more intact if he had admitted cultivation of the product in the basement where it was found under the presently disabled grow light.
• That there was cannabis trim much like the content of the Walmart bag and the swimming pool in the homemade extractor tends to refute Mr. Aubin’s disclaimer about trying to enhance the thc content of the trim by washing the thc into a more concentrated form along the way.

Conclusion

[87] Having regard to the circumstantial evidence on scene, Butane vapour could not be excluded. The fire spread depicted in paragraph 3.1.4 of the Williams report was consistent with a low-density Butane flashover as opposed to the long term burn of a faulty extension cord connector. Given that with time, the gaseous substance would diffuse to less than the flammable range the only conclusion is that it was introduced into the basement shortly before the fire.

[88] The circumstances here are, although in a different context, similar to the JJRD reasoning; namely that an outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond reasonable doubt of the truth of the conflicting credible evidence is as much an explanation for the rejection of the accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.

[89] Defence evidence did not raise reasonable doubt as to fire cause. The deficiencies in defence credibility are such that there is little foundation on which to accredit belief or reliance on it. The substance of Mr. Aubin’s testimony was self-serving and gratuitous.

[90] Jason Williams with all of his experience called the incident incendiary as he saw it. Mr. Aubin’s exculpatory version was unsupported by the facts on the ground.

[91] I am satisfied beyond reasonable doubt that Mr. Aubin produced a small amount of Butane honey oil shortly before the fire on April 6, 2017. The Butane vapour ignited, and the fire was the result.

[92] Accordingly, there will be findings of guilt on counts one, two and six.

The Honourable Mr. Justice Rick Leroy Released: June 29, 2020