Her Majesty the Queen v. Serdjo Mocibob
COURT FILE NO.: CR-18-40000410-0000
DATE: 20210108
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
-and-
SERDJO MOCIBOB
COUNSEL: Mr. Brad Burgess, for the Crown Mr. Paul Mergler, for the Defendant
HEARD: November 30, 2020
BEFORE: Justice J. Copeland
REASONS FOR JUDGMENT
[1] Serdjo Mocibob is charged with arson endangering life, and arson damaging property, contrary to ss. 433(a) and 434 of the Criminal Code.
[2] The allegations relate to a fire in his apartment, where he lived alone, which occurred on the afternoon of May 3, 2016. When fire crews responded, the apartment door was locked and chained. After entering using a sledgehammer, and taking initial steps to put out the fire and clear the smoke, firefighters discovered Mr. Mocibob unconscious in the dining room, covered in soot. He suffered first and second degree burns, and was in hospital for months after the fire.
[3] After investigation, the fire investigator from the Office of the Fire Marshall concluded that the fire was intentionally set, and that there were two separate locations of ignition of the fire (the expert evidence is discussed below). Mr. Mocibob testified that he has no memory of the events of the fire. He also testified that at the time of the fire he was content with his life, that he had no financial concerns, and that he had no reason to want to harm himself by setting fire to his apartment with himself in it.
[4] I will not delve into detail about all the elements of the offences under s. 433(a) and 434. The central difference between the two offences is that in addition to proof that damage was caused by a fire was intentionally or recklessly set by a defendant, s. 433(a) also requires proof that the person who set a fire knew or was reckless as to whether the property was inhabited or occupied, and s. 434 requires proof of damage to property not wholly owned by the person who set the fire.
[5] Proof of the elements that distinguish the two offences from each other is not in dispute in this case. What is in dispute is the element common to both offences – whether the Crown has proven beyond a reasonable doubt that the fires in the apartment were intentionally or recklessly caused by the defendant.
[6] In the circumstances of this case, the issue of whether the fires were intentionally or recklessly caused raises two legal and factual issues.
[7] The first legal and factual issue relates to an asserted defence of automatism. In very summary form, this defence is based on the following evidence and submission. Mr. Mocibob testified that he has no memory of the fire (I describe this in more detail below). He also testified that he had no motive to set the fires. He was happy in his life, and had no financial or other troubles. Thus, if the court finds that the fires were intentionally or recklessly caused, the defence argues that Mr. Mocibob must have acted in an automatic state.
[8] The second legal and factual issue is whether, on the whole of the evidence before the court, the Crown has met its burden to prove beyond a reasonable doubt that the fires were intentionally or recklessly caused.
Is an Automatism defence available?
[9] I will deal with automatism at the outset, because I can dispose of it briefly. R. v. Stone, 1999 688, [1999] 2 S.C.R. 290, is binding authority that sets out the requirements for a defendant to put forward a defence of non-insane automatism.
[10] The burden of proof for a defence of non-insane automatism is different than for most defences. The burden of proof rests on a defendant on a balance of probabilities: Stone at paras. 173-182.
[11] Further, there are specific evidentiary requirements for the defence of non-insane automatism (applicable both to whether there is an air of reality to the defence, and to whether the defence has been established on a balance of probabilities). First, a defendant must testify that they acted involuntarily: Stone at paras. 183-84. Second, there must be expert evidence to support the automatism claim: Stone at paras. 183-184, 187, 192. Third, even where the first two evidentiary hurdles are met, the court must also consider whether there is other evidence capable of supporting or confirming the defence (for example, a medical history of dissociative states on the part of a defendant; evidence about a defendant’s appearance/state at the time of the alleged offence; evidence an absence of motive to commit the alleged offence): Stone at paras. 187-191).
[12] In this case, Mr. Mocibob has testified that he has no memory of the events of the fire. I accept his evidence, which I explain further in my findings with respect to his credibility below. It is not entirely clear whether a defendant testifying that they have no memory of events meets the first requirement of Stone, that a defendant must testify that they acted involuntarily. I tend to think that it would meet the first requirement, since as a practical matter is probably often the case that a person acting in an automatic state will not remember the events at issue. [^1] However, it is not necessary for me to decide this issue in this case. For the sake of argument, I assume that Mr. Mocibob’s evidence that he does not remember the events of the fire is sufficient to meet the first threshold in Stone.
[13] Mr. Mocibob fails to meet the second threshold requirement in Stone, the mandatory requirement of expert evidence to support the automatism claim. As there is no expert evidence to support Mr. Mocibob’s defence of automatism, the defence must fail.
[14] Mr. Mergler argues that the evidence of absence of motive on the part of Mr. Mocibob is sufficient to engage the defence. I deal with my assessment of the credibility of Mr. Mocibob’s evidence below. For now, I will simply state that I believe Mr. Mocibob’s evidence that he had no motive to start the fire.
[15] In my view, the defence argument that the evidence of absence of motive is sufficient to raise a defence of automatism rests on a misreading of Stone. The defence relies on paragraph 191 of Stone to argue that evidence of an absence of motive to commit an offence is relevant to assessing a defence of automatism. Paragraph 191 of Stone does say this, but it must be read in context. In that paragraph, the majority is speaking about types of confirmatory evidence that a court should consider in assessing a defence of automatism, after the first two thresholds have been met (i.e., the defendant testifies that they were in an automatic state, and there is expert evidence to support that they were in an automatic state). Assessing presence or absence of motive, or other confirming evidence, does not come into play unless the first two threshold evidentiary issues are satisfied. Thus, given the absence of expert evidence in this case on the issue of automatism, the absence of motive cannot, by itself provide a basis for the defence.
[16] However, as I will discuss below, the evidence of absence of motive for Mr. Mocibob to set the fires is relevant to my assessment of whether the Crown has proven beyond a reasonable doubt that the fires were intentionally set.
Has the Crown proven beyond a reasonable doubt that the fire was intentionally or recklessly caused?
[17] The evidentiary record before the court consists of two agreed statements of fact, the report of the fire investigator from the Office of the Fire Marshall (which includes both opinion evidence, and factual evidence of observations made by the fire investigator at the scene of the fire, and photos of the scene), and the testimony of Mr. Mocibob. I consider each body of evidence in turn below for purposes of clarity of the analysis. But, to be clear, I consider the evidence as a whole in assessing whether the Crown has met its burden.
(i) Undisputed facts
[18] The bulk of the circumstances surrounding the fires, apart from the question of whether they were intentionally set, were not in dispute, and were entered into evidence by way of an agreed statement of facts.
[19] One May 3, 2016, at 1:51 p.m., emergency services received a number of 911 calls about a fire on the 9th floor of a residential building on Weston Road. The building is a 27 story building, with approximately 560 residents.
[20] Emergency services were dispatched to attend. It was determined that there was an active fire on the 9th floor. Two firefighters attended on the 9th floor. There was moderate to heavy smoke in the hallway. There was heavy smoke billowing from the edges of the door to Mr. Mocibob’s unit. Additional fire trucks and crews were requested to attend.
[21] The two firefighters on the 9th floor connected their equipment to a standpipe in the 9th floor hallway, and attended at the door to Mr. Mocibob’s unit. They found the door locked and chained. One of the firefighters used a sledgehammer to open the door.
[22] Upon entering the unit, the firefighters were faced with high heat and thick black smoke, making it almost impossible to see. A fire was burning on the couch in the living room. One of the firefighters applied water to it. The firefighters then made their way by feel down the hallway to the master bedroom, which was the furthest room from the living room. The master bedroom was engulfed in fire. One of the firefighters called out to see if anyone was in the master bedroom. There was no response, so he applied water to the master bedroom.
[23] The other firefighter went back to the living room, and attempted to open the balcony door to ventilate the smoke. He noticed that the couch was still smouldering, and called for the other firefighter to attend with the firehose. As they applied water to the couch again, two more firefighters attended the apartment to assist.
[24] After some of the smoke was cleared through the open balcony door, one of the firefighters discovered Mr. Mocibob lying on the floor in the dining area of the apartment. He was lying on his side, unconscious, and covered in soot. The firefighters radioed to their command post downstairs that they had located a fire victim, and worked to remove Mr. Mocibob from the unit. Mr. Mocibob was badly burned. By the time Mr. Mocibob was transferred to the care of EMS, he was conscious but unresponsive. He had first and second degree burns to his chest, shoulders, and forehead. He was taken by ambulance to Sunnybrook Hospital.
[25] Mr. Mocibob was the sole occupant of the apartment at the time of the fire. Mr. Mocibob lived alone in the apartment unit at the time of the fire.
[26] Two other residents of the building suffered smoke inhalation. One was a 38 year old woman who also lived on the 9th floor. She was assessed at the scene by EMS, and later transported to hospital for assessment and treatment. The other was a 10 year old girl, who was assessed at the scene for difficulty breathing due to smoke.
[27] The fire caused extensive property damage at the building. Mr. Mocibob’s unit was destroyed. The apartments neighbouring his unit suffered damage, including having their windows blown out by the heat of the fire. Damage to the building and its contents from the fire, was approximately $150,000.00, plus additional costs to the property management company for things such as lost rent and extra-security, in the range of $20,000.00 (the monetary value in the written agreed statement of facts was updated on consent in oral submissions at the outset of the trial).
[28] It was agreed in the agreed statement of facts that there were two separate and distinct areas of origin of the fires in Mr. Mocibob’s apartment, one in the living room at the couch, and the other at the bed in the master bedroom. I will address this further in relation to the expert evidence.
[29] After investigation, on July 9, 2016, Mr. Mocibob was charged with the charges before the court. At that time, he was still in hospital.
[30] There was also a supplementary agreed statement of facts filed that relates specifically to an aspect of the expert evidence, whether gasoline or a petroleum distillate was present at the location of the fire in the living room as an accelerant. I address the supplementary agreed statement of facts below when addressing the expert evidence.
(ii) Mr. Mocibob’s evidence
[31] Mr. Mocibob testified. In summary form, his evidence addressed two issues: (i) that he had no memory of the events of the fire; and (ii) that he was happy with his life, had no financial problems, and had no reason to try to kill himself by setting his apartment on fire with himself in it. I will briefly summarize his evidence on each of these issues.
[32] Mr. Mocibob was 77 years old when he testified at trial, and 72 years old at the time of the fire. He has no criminal record. He has been retired for 12 years. He was trained as a cabinet maker. Prior to his retirement, he worked at different times as a cabinet maker, and as a carpenter on construction sites. Mr. Mocibob had lived at the Weston Road apartment building for over 40 years (not always in the same unit).
[33] Mr. Mocibob had been married, but he and his wife separated in May 2015. He has a 32 year old son. After he and his wife separated, they reached an agreement that he pay her just over $900.00 a month, for 10 months. He made those payments until February 2016. Although this agreement regarding support was worked out verbally, Mr. Mocibob and his wife committed the agreement to writing in April 2016, because he needed proof of it for the Canada Revenue Agency. That written document, signed by both of them, was made an exhibit at trial.
[34] Mr. Mocibob testified that although making those payment to his wife had caused him some financial hardship, once the payments were done, he was financially comfortable. He had three sources of pension income, which totalled approximately $2,400.00 per month: the Canada Pension Plan, Old Age Security, and a pension through the carpenters union. His rent was just over $1,000.00 per month. He had no debts. As a man living alone, this was sufficient to meet his financial needs.
[35] There were no family court proceedings between Mr. Mocibob and his wife. The separation was voluntary, and the financial issues were resolved once his payments to her ended in February 2016. Mr. Mocibob testified that in the spring of 2016, he felt okay about the separation. Prior to the fire, he had last seen his wife on April 22, 2016, when she signed the document about the support payments for the CRA. He met with her and his son at her home. They talked nicely. She signed the document voluntarily.
[36] Mr. Mocibob testified that the day prior to the fire, May 2, 2016, he attended at the property management office in the building to pay his rent. He believed he attended to pay his rent at around 10:00 a.m., but could not recall the exact time. He had not paid it on May 1, because that day was a Sunday, and the property management office was closed. He testified that it was his usual practice to pay his rent in person, by cheque, at the property management office, and the secretary there would give him a photocopy of his cheque. A copy of Mr. Mocibob’s rent check dated May 1, 2016, and showing it had been deposited by the property management company was filed as an exhibit to support his evidence that he paid his rent as usual that month.
[37] Mr. Mocibob testified that he had not taken any drugs in the days leading up to the fire. He testified that the only alcohol he would consume in that time period was “a glass of wine” when he ate dinner, never more. He testified that he has never seen a psychiatrist or psychologist leading up to the fire (and none was recommended as part of his treatment after the fire). He testified that he slept through the night fine in that time period. He would sometimes fall asleep when he was watching TV.
[38] Mr. Mocibob testified that he remembered taking his rent cheque to the property management office on the morning of May 2, and the secretary giving him a copy of his cheque, but after that, he did not remember anything until he woke up at Sunnybrook Hospital. He said he had no glimpses or flashbacks of memory in that time period. In his own words, he described his lack of memory as follows: “The time is lost like I never exist.” He testified that he had no idea what happened in the apartment regarding the fire.
[39] He was asked about the barbeque/candle lighter found on the remains of the bed in the master bedroom. He said that it is normally kept in the dining room. His wife had used it to light candles. He had never used it. He had no idea how it ended up in the master bedroom.
[40] Mr. Mocibob testified that he had never experienced memory loss before.
[41] Mr. Mocibob testified that he had friends who he would meet with regularly. He and his friends would meet with at Cloverdale Mall to drink coffee and talk on Tuesdays, and do the same at the Woodbine Centre Mall on Saturdays. It was usually a group of between four and eight people. Mr. Mocibob also walked daily for exercise, often 12 km a day, and sometimes as far as 16 km a day.
[42] Mr. Mocibob testified that he was happy with his life. He was not sad, and did not worry. He testified that had never had thoughts of self-harm, either at the time of the fire, or previously.
[43] In cross-examination, Mr. Mocibob agreed that the time surrounding the fire was the only time in his 77 years of life that he had experienced amnesia.
[44] He agreed in cross-examination that his wife had moved out of the apartment in May 2015, a few weeks after they separated. He agreed that the date of the fire was within days of one year after they separated (May 1, 2015). He agreed that he did not have a relationship with his wife after the separation. He had seen her twice since the separation: Once in February 2016, related to support payments; and then in April 2016, when he asked her to sign the document for the CRA relating to support payments. He agreed that once his financial payments to her were completed, he no longer had a relationship with his wife. He also agreed that his son did not want to see him. He said that he would have liked to see his son, but his son did not want to see him. He agreed that by May 2016, he knew that he would not have any ongoing relationship with his wife or son.
[45] However, he denied the suggestion put to him in cross-examination that the knowledge that he would no longer have a relationship with his wife and son caused him to be depressed. He said he had accepted it long before (the absence of an ongoing relationship with his wife and son). He denied the suggestion that as a result of knowing the relationship with his wife and son was over, he set the fires in order to end his own life. He denied the suggestion that he was now saying he could not remember the events of the fire because he was ashamed.
[46] I believe Mr. Mocibob’s evidence. He was consistent in his evidence. He did not accept any of the suggestions put to him in cross-examination. His evidence was logically coherent.
[47] In essence, the Crown’s argument is that his evidence should be rejected because, according to Crown counsel, there is strong circumstantial evidence that the fires were intentionally set. But as I explain below, I have concerns about the reliability of the expert evidence on the issue of how the fires started. Although the fact that there were two separate locations where the fires started (a portion of the expert evidence that I do accept) is concerning, as is the finding of the barbeque/candle lighter in the bedroom, it is not so compelling that it leads me to find Mr. Mocibob’s evidence not to be credible. Thus, I am not persuaded that the Crown’s circumstantial case is so strong that it would lead me to reject Mr. Mocibob’s evidence.
[48] I believe Mr. Mocibob’s evidence both that he has no memory of the events of the fire, and that he had no motive to set fire to his apartment with himself in it. In addition to the general comments I have made above, in coming to this conclusion, I also take into account that, although there was no expert evidence regarding Mr. Mocibob’s memory loss, facts in the agreed statement of facts show that he suffered traumatic injuries as a result of the fire. When the firefighters found him in the apartment, he was unconscious, covered in soot, and badly burned. He suffered first and second degree burns on his chest, shoulders and forehead. When EMS first treated him before he was transported to hospital, he was conscious, but still unresponsive. He spent months in hospital. In the context of what clearly was very serious physical trauma to Mr. Mocibob, which rendered him unconscious, and also took many months recovery in hospital, I accept his evidence that he has no memory of the events of the fire.
[49] I also accept Mr. Mocibob’s evidence that he had no motive to set his apartment on fire with himself in it. He had a simple life, but I find that it was one that he was content with.
[50] I do not accept the theory put to Mr. Mocibob in cross-examination by Crown counsel, that effectively, he was suicidal because once the financial arrangements with his wife had come to an end, his relationship with her and his son was over. Mr. Mocibob did not hesitate to admit in cross-examination that his son did not want to see him, and that his wife also had no reason to see him once the financial obligation was completed. I find that he was quite candid about this. But he was clear, and I accept his evidence, that this fact did not cause him to be suicidal. I accept his evidence that he was content with his life. He had a simple life. But he had friends who he saw regularly. He exercised daily.
[51] I accept that Mr. Mocibob did not have any financial issues. With the pensions totalling approximately $2,400.00 per month, and rent of just over $1,000.00 per month, I accept that as a man living alone, this provided him sufficient funds for food and other regular expenses. I accept his evidence that he did not have any debts. The Crown has not produced any evidence to contradict Mr. Mocibob’s evidence on that issue.
[52] Further, Mr. Mocibob’s behaviour in the days leading up to the fire, to the extent there is evidence of it, does not suggest anything out of the ordinary. On May 2, 2016 he paid his rent at the property management office, as was his practice.
[53] I want to make explicit, what is implicit in my believing Mr. Mocibob’s evidence. I reject the submission by Crown counsel that he is not being truthful about his lack of memory of the fire, and is doing so because he is ashamed and dissembling in order to hide what he knows about the origin of the fires.
[54] I note that Mr. Mocibob’s lack of memory neither strengthens his defence, nor hurt’s the Crown’s case. It is just an absence of evidence. Because of his lack of memory of the events of the fire, which I accept is truthful, he can shed no light on the how the fires started.
[55] However, his evidence of absence of motive to set the apartment on fire with himself in it is circumstantial evidence that I must weigh, in the context of all of the evidence, in assessing whether the Crown has proven beyond a reasonable doubt that the fires were intentionally or recklessly set.
[56] I note that I have not given myself the usual W.D. instruction. Although Mr. Mocibob testified, and I believe his evidence, because he has no memory of the events of the fire, my belief in his evidence does not lead inexorably to an acquittal (see: R. v. Ibrahim, 2019 ONCA 613 at para. 37). Rather, his evidence that I believe becomes part of the matrix of circumstantial evidence on which I must assess whether the charge is proven beyond a reasonable doubt.
[57] I also want to be clear that in considering the credibility of Mr. Mocibob’s evidence, I have considered his evidence in the context of the evidence as a whole, and not in isolation.
(iii) The Expert evidence
[58] The Crown tendered evidence from a fire investigator from the Office of the Fire Marshall on the issue of the nature and source of the fire (or fires, as it turns out, in this case) as expert opinion evidence. The fire investigator’s opinion was tendered in writing, in the form of a report. There was no cross-examination on it. I return to this issue below.
[59] Following a short voir dire I gave an oral ruling qualifying the fire investigator to provide expert opinion evidence on the origin, causes, and circumstances of fire events, including areas of origin of fire, spread of fire, and ignition sources of fire.
[60] I will not repeat the oral ruling regarding admissibility of the report of the fire investigator. The evidence of the fire investigator was relevant to the central issue at trial, whether the fires were intentionally or recklessly set. It was not in dispute that the fire investigator was a properly qualified expert, and that the subject-matter of the report was outside the expertise of a layperson.
[61] However, I underline one aspect of my ruling on admissibility, under the second branch of the expert evidence admissibility test – the gatekeeper role of balancing the benefit of the proposed expert evidence and its potential risk. After explaining why I found that the benefit of the expert evidence at issue outweighed the risk of harm to the trial process from it, I instructed myself, in accordance with the jurisprudence, to be cautious not to accept the expert evidence without scrutiny just because it is coming from an expert. Like any other evidence, it must be assessed rationally and in the context of the evidence as a whole: Inquiry into Pediatric Forensic Pathology in Ontario, The Honourable Stephen T. Goudge, Commissioner (2008), at pp. 511-513 (Volume 3, recommendation 140); R. v. Mohan, 1994 80, [1994] 2 S.C.R. 9 at pp. 21-22; White Burgess Langille Inman v. Abbott Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182 at para. 18; R. v. Abbey, 2009 ONCA 624 at para. 90.
[62] Returning to the issue of the fire investigator’s opinion being filed in writing, I do not know if the procedure that both counsel agreed on, of filing two agreed statements of fact, and the expert report (as well as photos of the scene), was viewed by them in some sense as an alternative to a guilty plea, in a situation where Mr. Mocibob does not admit the elements of the offence. If that was counsel’s intention, no-one said so on the record. In any event, there was no admission by the defence that the fires were intentionally or recklessly set. Indeed, given Mr. Mocibob’s lack of memory, he was not in a position to make such an admission. For this reason, I must assess the expert evidence in the report in the context of the evidence as a whole.
[63] I have three concerns about the reliability of the fire investigator’s evidence. One comes as a result of the contents of the supplementary agreed statement of facts. The other two concerns come from the report itself. However, I note that because of the agreement of counsel to tender the opinion in writing, the fire investigator was not cross-examined before me. It is possible, I do not know, that had he been cross-examined, he might have had answers to the issues that concern me. For this reason, I do not name the fire investigator in this judgement.
[64] I will begin with a summary of the contents of the fire investigator’s report. Then I will outline the issues that give me concerns about its reliability in the context of the evidence as a whole. I note at the outset that the fire investigator also investigated at the scene. Thus, the report contains some first-hand observations by the fire investigator at the scene that do not involve the application of expertise (some of which are supported by the photographs of the scene filed as an exhibit). I have no reason to doubt the observations made by the fire investigator which do not involve opinion evidence. The most important of these observations is the finding of the barbeque/candle lighter in the bedroom.
[65] The fire investigator’s report begins by summarizing the circumstances of the discovery of the fire by neighbours, and the attendance by the Toronto Fire Service (p. 3). I will not summarize this as it is not in dispute, and much of it is in the agreed statement of facts. He also describes the apartment building and the layout of Mr. Mocibob’s apartment (p. 4).
[66] The report then describes the fire patterns in different locations in the apartment, and draws conclusions about the reasons for these fire patterns (pp. 5-9) . I will summarize what I understand to be the significant conclusions relating to his opinion about the origins of the fires. There was an absence of fire pattern physical evidence to show the fire could have started in the spare bedroom, washroom, kitchen, or hallways (i.e., the fires did not start in these locations). These locations had soot on the ceiling and walls which the investigator opines were from the convective flow of hot gasses and soot along the ceiling from fires which developed in the living room and master bedroom.
[67] The investigator describes in great detail the fire patterns he observed in the living room. Based on the fire patterns he observed, he opines that a fire started at the couch on the north wall of the living room, and that the other fire patterns in the living room were caused by the migrating hot gas layer (hot gas and radiant heat) along the ceiling from the couch fire along the north wall of the living room, and the flames that went up the north wall of the living room above the couch, and to the ceiling above (p. 6).
[68] The investigator describes in great detail the fire patterns in the master bedroom. Based on the fire patterns he observed, he opines that a fire started at the north section of the bed in the master bedroom, and that the other fire patterns in the master bedroom were caused by the flames from the bed that went up the north wall of the master bedroom to the ceiling, and radiant heat within the convective flow of the hot gas layer that filled the room (p. 8).
[69] Based on the fire patterns he observed, the investigator opines that there were two separate and distinct areas where fires originated in the apartment (at the couch on the north wall of the living room, and at the bed against the north wall of the master bedroom). He opines that there were no mechanisms or heat transfer between the two locations, and that there were unaffected combustibles between each area. He states in the report that he is unable to say which fire was first ignited (pp. 10-12).
[70] The investigator then lists the ignition sources he considered. I will quote this, as in my view it is important (pp. 12-13):
3.2 Ignition Sources
3.2.1 Consideration of Ignition Source
Area of Origin #1 [the living room]
The accidental ignition of combustible materials resulting from an electrical failure or malfunction.
The deliberate application of an open flame to combustibles more specifically the fabric on the couch.
Area of Origin #2 [the master bedroom]
- The deliberate application of an open flame to combustibles more specifically papers on the mattress.
3.2.2 Isolation of Ignition Source
Area of Origin #1 [the living room]
With regards to the accidental ignition of combustibles resulting from an electrical failure or malfunction: only one electrical circuit (a wall receptacle at the east edge of the plume pattern) was identified within the area of origin. There was a telephone cord and lamp plugged into this receptacle. The wiring ran to the end table at the east end of the couch and damage to the insulation was the result of the thermal energy from the couch fire. As such, this theory can be discarded.
An open flame, as produced by a lighter, has the necessary heat energy to ignite the solid fuels (fabric upholstery) within the area of origin. This hypothesis will be discussed in further detail in the validation section of this report.
Area of Origin #2 [the master bedroom]
- An open flame, as produced by a lighter, has the necessary heat energy to ignite the solid fuels (papers) within the area of origin. This hypothesis will be discussed in further detail in the validation section of this report.
[71] I pause to note that apart from considering (and rejecting) the possibility of an electrical failure or malfunction as the source of the fire in the living room, the investigator does not consider any non-deliberate (i.e., non-intentional) ignition sources. I return to this issue below in my assessment of the expert evidence.
[72] The investigator then engages in what he describes as the “validation and testing of hypothesis” (pp. 13-15). He begins this section by stating: “A fire scene investigation requires the formulation and due consideration of various possible theories with regard to origin, cause and circumstances. It is only after this process has been carried out that it is proper to formulate a final hypothesis with regards to the origin, cause and circumstances of the incident.”
[73] With respect to the living room, he refers to a sample submitted to CFS for analysis from the floor under the couch. Testing of that sample indicated the presence of gasoline and a medium petroleum distillate. He gives examples of substances that could produce that finding, and notes that the substance found by CFS “may originate from separate products or a single, unknown commercial product.”
[74] He then concludes with respect to the living room fire:
The first fuel ignited was a volatile ignitable liquid namely gasoline/medium petroleum distillate. The presence of an intentionally introduced open flame into an environment containing intentionally poured gasoline/medium petroleum distillate on the couch would be more than sufficient heat energy to ignite the above mentioned fuel, resulting in the fire pattern physical evidence observed above.
[75] With respect to the fire in the master bedroom, the investigator opines that the first fuel ignited there was “various papers scattered on the mattress”. He states that the “presence of an intentionally introduced open flame to the papers on the mattress would be more than sufficient heat energy to ignite the materials producing the fire pattern physical evidence observed above.” He also notes that he observed a considerable amount of charred papers on top of the mattress.
[76] The fire investigator notes (at p. 15) that what he refers to as a “BBQ lighter” was found in the master bedroom on the mattress springs. Based on this description and the photos filed as exhibits, I understand this to be the type of lighter which is approximately 8-10 inches long, and which people often use to light candles or barbeques.
[77] The investigator opines (at p. 15) that given the heat output and energy which such a lighter would produce (which he describes in some detail), heat from this type of lighter through radiation alone would be insufficient to ignite the fuel at the living room couch or in the master bedroom (i.e., radiant heat from the lighter could not have started the fires). He concludes that therefore flame from the lighter must have been in direct contact with the fuel (i.e., the couch/medium petroleum distillate in the living room, and the paper/mattress in the bedroom) before ignition.
[78] The investigator then states his final opinion about the cause of the fire as follows (p. 16):
An analysis of the fire patter physical evidence and the information collected during the fire investigation at [address] Weston Road, Toronto, identified two separate areas of origin: one on the couch in the living room and one on the bed in the master bedroom.
Evidence of only one valid ignition hypothesis was isolated; the ignition scenario was determined to be the intentional application of an open flame (lighter) to gasoline/medium petroleum distillate on the upholstered couch, and the intentional application of an open flame (lighter) to the papers on the bed.
[79] On this basis, he classified the fire as “Incendiary – Arson – Intentional”.
[80] Having outlined in summary form the content of the fire investigator opinion, I turn to my assessment of its reliability.
[81] I accept the opinion of the fire investigator that there were two separate and distinct fires in the apartment, one which started at the living room couch, and one which started at the master bedroom mattress. I accept that the two sources of fire ignition were isolated from each other both by distance and corners. I also accept that there were areas between the two fires where combustible materials were unaffected by fire. Thus, I accept that there were two separate areas of fire ignition in the apartment, one in the living room, and one in the master bedroom, and that the fire did not start only in one place and spread on its own to the other place.
[82] I have three main concerns about the reliability of the fire investigator’s opinion. The first concern relates to the investigator’s opinion on the cause of the fire at the living room couch. The source of my concern arises out of the supplementary agreed statement of facts. The second concern relates to what I find to be conclusory aspects of the opinion regarding the start of the fire in the bedroom. The third concern relates to the fire investigator’s approach to considering alternative theories of the causes of the fires (consideration of sources of ignition).
[83] As I have outlined above, in his report, the fire investigator concluded with respect to the fire in the living room that there was an intentional application of open flame to gasoline/medium petroleum distillate on the couch (pp. 14, 15, 16 of report). This was based in part on the finding that burnt debris, including wood at the site of the living room couch included gasoline and a medium petroleum distillate.
[84] In the supplementary agreed statement of facts, it was noted that in the report, the fire investigator had noted that the gasoline and medium petroleum distillate found in the debris at the couch “may originate from separate products or a single, unknown commercial product.” It was agreed in the supplementary agreed statement of facts that the Crown was not seeking to prove that gasoline and medium petroleum distillate found in the burnt debris at the couch “were intended to be used as an accelerant with respect to the fire found burning on the couch on the north wall of the living room.” When the supplementary agreed statement of facts was entered as an exhibit, counsel expanded on it orally, and agreed that, for example, the findings of gasoline and a medium petroleum distillate could have been caused by varnish on the wood floor in that location, or by residue from cleaning products.
[85] Thus, the substance of the supplementary agreed statement of facts is that although there was a finding of gasoline or a medium petroleum distillate in the debris at the scene of the couch fire, the Crown is not seeking to prove that the substance was intentionally applied to the couch (or near the couch) to be used as an accelerant, because there are innocent explanations for the presence of the substance in the fire debris (for example, from varnish on the wood floor, or cleaning product residue).
[86] I find that the supplementary agreed statement of facts undermines the fire investigator’s opinion about the cause of the fire in the living room. Part of the fire investigator’s opinion on the living room fire was that an accellerant was intentionally introduced onto the couch when the fire was set (p. 14 of report). The supplementary agreed statement of facts undermines that conclusion because it was agreed that the finding of gasoline/medium petroleum distillate could be explained by innocent causes, such as the varnish on the wood floor, or residue from cleaning products.
[87] Crown counsel argues that the agreement in the supplementary agreed statement of facts does not undermine the fire investigator’s opinion about the cause of the fire on the couch, because, in his submission, the fire investigator did not state in the report that the petroleum products were intentionally applied to the couch. According to Crown counsel’s argument, the fire investigator only said that an open flame (the barbeque/candle lighter) was intentionally applied to the couch, and that petroleum products were a source of ignition for the fire at the couch, but did not say that petroleum products were intentionally applied to the couch (as an accelerant). Simply put, the Crown submits that the fire investigator’s report says open flame was intentionally applied to the couch, but does not say that the petroleum product was intentionally applied to the couch. Thus, according to Crown counsel’s submission, the agreement in the supplementary agreed statement of facts that the petroleum products could have been there innocently (as part of the floor varnish or residue from cleaning products) does not undermine the fire investigator’s opinion.
[88] With respect, Crown counsel is incorrect that the fire investigator’s opinion does not include a conclusion or assumption that a petroleum product was intentionally applied. At page 14 of his report, the fire investigator expressly refers to the intentional introduction of an accelerant to the couch: “The first fuel ignited was a volatile ignitable liquid, namely, gasoline/medium petroleum distillate. The presence of an intentionally introduced open flame into an environment containing intentionally poured gasoline/medium petroleum distillate on the couch would be more than sufficient heat energy to ignite the above mentioned fuel, resulting in the fire pattern physical evidence observed above” (emphasis added). Thus, it is clear that the fire investigator’s conclusion regarding the fire at the couch is based on, in his own words, “intentionally poured gasoline/medium petroleum distillate on the couch”.
[89] My concern about this interplay between the supplementary agreed statement of facts, and the fire investigator’s report is that once the plank of intentional introduction of petroleum product onto the couch (at p. 14 of the report) is removed as a factual portion of the fire investigator’s opinion by the agreement in the supplementary agreed statement of facts, in my view, I cannot rely on his conclusion that the fire at the couch must have been intentionally set. I cannot piece back together parts of his opinion and speculate about what he would have said absent a finding of the intentional introduction of a petroleum product as an accelerant. His conclusion that the fire in the living room was intentionally set was based in part on a finding that a petroleum product had been intentionally introduced onto the couch. That finding is undermined by the supplementary agreed statement of facts. In addition, the undermining of this aspect of the fire investigator’s opinion raises concerns for me about relying on the balance of his opinion, given that it relates to central aspect of his opinion (the cause of the living room fire).
[90] My second concern about the fire investigator’s opinion is with respect to the conclusion that the fire in the master bedroom was started by lighting paper on the bed on fire. I find that the fire investigator’s opinion on this issue is conclusory. He states at p. 14 regarding the master bedroom: “The first fuel ignited were various papers scattered on the mattress. The presence of an intentionally introduced open flame to the papers on the mattress would be more than sufficient heat energy to ignite the materials producing the fire pattern physical evidence observed above. A considerable amount of charred papers located on top of the mattress springs during excavation” (emphasis added”). Although the fire investigator gives the opinion that applying flame to papers on the bed “would be more than sufficient heat energy” to start the fire (i.e., would be capable of starting the fire), he provides no explanation for his conclusion that the first fuel ignited in the bedroom was papers on the bed.
[91] My third area of concern about the fire investigator’s report is more overarching. Although he purports to consider alternative hypotheses of how the fires started (what he refers to as “consideration of ignition source”) in order to rule out innocent explanations, he only considers one innocent explanation for the living room fire (an electrical failure or malfunction, which he rejects), and considers no innocent explanations for the bedroom fire.
[92] Thus, in substance (apart from the consideration of an electrical failure or malfunction as a source of the fire in the living room), what the fire investigator is considering and concluding in his report is whether the fires are consistent with being started intentionally. In other words (the words of considering circumstantial evidence) he is considering whether it would be a reasonable inference from the evidence that the fires were started by arson. This is, of course, fine as a first step. But what I find the fire investigator’s opinion lacks is an explanation for why (apart from considering and rejecting an electrical failure or malfunction as the source of the fire in the living room) an innocent cause (accidental application of an open flame, or accidentally spreading the fire in an attempt to put it out), should be rejected as other reasonable inferences.
[93] The fire investigator purports in his report to consider other causes of the fires apart from intentional setting of the fires. This is at pp. 12-16 of the report. Indeed, as I have noted above, at p. 13 of the report, he says that it is only proper to formulate a final hypothesis about the origin, cause, and circumstances of a fire after considering various possible theories with regard to the fire’s origin, cause, and circumstances.
[94] Although the fire investigator says he will consider various possible theories with regard to origin, cause, and circumstances of the fire, I find that he only does so only to a very limited degree. With the exception of considering the possibility of an electrical failure or malfunction as the source of the living room fire only, in the report he does not consider any innocent or accidental causes of the fires. Thus the only hypotheses that the fire investigator considers when purporting to validate and test the causes of the fire were the following (at pp. 12-13):
• For the living room – electrical failure or malfunction accidentally igniting the fire, or deliberate application of an open flame to combustibles, specifically the fabric on the couch;
• For the master bedroom – deliberate application of an open flame to combustibles, specifically papers on the mattress.
[95] What is clear from the listing of hypotheses considered by the fire investigator is that the only hypothesis he considered for the master bedroom fire was an intentionally set fire. For the living room, he considered one accidental cause (electrical failure or malfunction), and one intentional hypothesis (intentionally applying open flame to “intentionally poured gasoline/ medium petroleum distillate on the couch – which, as I have already explained, has been undermined by the supplementary agreed statement of facts).
[96] With respect, I find that this is an unreliable basis to conclude that the fires were intentionally set. I accept that the fire investigator properly considered and ruled out an electrical fire in relation to the living room fire (pp. 12-13). But with respect to the conclusion that the fires in the living room and in the bedroom were intentionally set, in effect, what the fire investigator is concluding is that the findings he made at the scene (and subsequent forensic testing) are consistent with an intentionally set fire. But he does not explain why they are inconsistent with an accidental cause (again, with the exception of ruling out an electrical failure or malfunction, only in relation to the living room).
[97] That this is the investigator’s approach is also clear from the way his conclusions about the source of the fires in the living room and master bedroom are stated. He states (at p. 14) regarding the living room fire: “The presence of an intentionally introduced open flame into an environment containing intentionally poured gasoline/medium petroleum distillate on the court would be more than sufficient heat energy to ignite the above mentioned fuel, resulting in the fire pattern physical evidence observed above” (emphasis added). Similarly, he states (at p. 14) with respect to the bedroom fire: “The presence of an intentionally introduced open flame to the papers on the mattress would be more than sufficient heat energy to ignite the materials producing the fire pattern physical evidence observed above” (emphasis added).
[98] The wording of these conclusions is in substance that the hypotheses he explains would be capable of starting the fires. I accept that this is true. But the fire investigator does not (with the exception of rejecting an electrical failure or malfunction, for the living room only) consider or provide an explanation for rejecting accidental starting of the fires.
[99] Crown counsel argues that the fire investigator did consider and reject the fire starting by radiant heat (i.e., heat rather than directly applied flame). I accept that the fire investigator did consider this (at p. 15 of the report, under the heading “Kirk’s Fire investigation”). Thus, I accept that he ruled out radiant heat as a cause. But I do not see anywhere in his report a consideration of and/or rejection of accidentally applied flame.
[100] Crown counsel also argues that, in effect, what the fire investigator was finding was an absence of evidence of innocent or accidental causes of the fires. That may have been what he was trying to say. But he does not explain this in his report. And even if he had explained it in his report, it would be evidence I would have to weigh carefully in assessing whether the Crown has proven beyond a reasonable doubt that the fires were intentionally set. Absence of evidence of an innocent explanation for the fires is a factor I would have to consider, but it is not the same as evidence of absence of an innocent explanation. I must be cautious not to inadvertently shift the burden to the defence to prove that the fires had an innocent cause.
[101] Although the fire investigator concludes (at p. 16) that only one “valid” ignition hypothesis was isolated from his investigation, in my view the failure to explain why he discarded accidental causes (other than considering and rejecting, only with respect to the living room, an electrical failure or malfunction) undermines this conclusion.
[102] Finally, I note, and I will return to this below, it may be that the conclusions in the fire investigator’s report were driven by the fact that there were two separate fires, and also the presence of the barbeque/candle lighter in the master bedroom. This is undoubtedly compelling evidence for the Crown, as the accidental application of open flame twice seems less probable than it happening once. I consider this evidence below in my assessment of all of the evidence. But that does not change the fact that apart from ruling out an electrical fire (only in relation to the living room fire), the fire investigator does not explain in his report why he has ruled out innocent explanations for the fires.
[103] In sum, although I accept the opinion of the fire investigator that there were two separate ignition sources for the fire (one at the living room couch, and one in the master bedroom), and accept his factual observation about finding the barbeque/candle lighter on the remains of the mattress in the master bedroom, I have serious reservations about the reliability of his opinion regarding how the fires started. In the manner that evidence was presented to me, I do not accept the fire investigator’s evidence about how the fires started.
[104] Having explained my assessment of the evidence of Mr. Mocibob and the fire investigator, I turn to my assessment of whether on the whole of the evidence (and the agreed facts) the Crown has proven beyond a reasonable doubt that the fires were intentionally or recklessly set.
(iv) The Burden of proof and cases involving circumstantial evidence
[105] The Crown bears the burden to prove the charges beyond a reasonable doubt.
[106] The Crown’s case that the fires were intentionally or recklessly caused is a circumstantial one. In R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 at paras. 30, 35-42, 2016 SCC 33, the Supreme Court of Canada considered the proper approach to circumstantial evidence and proof beyond a reasonable doubt. Where the proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, a trier of fact should not draw an inference of guilt from circumstantial evidence unless it is the only reasonable inference that the evidence permits. Reasonable alternative inferences (besides guilt) may be based on the evidence or on a lack of evidence. What is important is that only reasonable alternative inferences can give rise to a doubt that the defendant is guilty. Speculative alternative inferences will not give rise to a reasonable doubt.
[107] In considering the line between reasonable alternative inferences, and speculative ones, Justice Cromwell writing for the court held as follows at paragraphs 37-38:
When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: [citation omitted]. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: [citation omitted]. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.
Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in the light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.
[108] As the Court of Appeal recently reiterated in R. v. Lights, 2020 ONCA 128 at para. 37, in assessing whether circumstantial evidence meets the required standard of proof, the court must bear in mind that it is the evidence assessed as a whole that must satisfy the reasonable doubt standard of proof, not each individual piece of evidence.
[109] Inferences consistent with innocence are not required to arise from proven facts. They may arise from lack of evidence: Villaroman at paras. 35-36; Lights at para. 38. As the Supreme Court noted in Villaroman, this principle is consistent with the holding in R. v. Lifchus, 1997 319, [1997] 3 S.C.R. 320, that a reasonable doubt may arise from the evidence, or from the lack of evidence. But alternative inferences, whether based on the evidence or the lack of evidence, “must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense”: Villaroman at para. 36.
[110] Finally, I underline the nature of the Crown’s burden of proof beyond a reasonable doubt. The reasonable doubt standard is a higher standard of proof than the civil standard of proof on a balance of probabilities. The reasonable doubt standard is a heavy burden. It is not sufficient to believe that the defendant is probably guilty. However, the Crown is not required to prove its case to the point of absolute certainty, as that would set an impossibly high standard. A reasonable doubt is a doubt based on reason and common sense, based on the evidence, or lack of evidence, in the record before the court: Lifchus at para. 39.
[111] In light of my assessment of the evidentiary record, where does this leave me?
• Mr. Mocibob was in the apartment alone, with the door locked and chained when the fire broke out, a fact which I infer from the fact that he was in the apartment alone with the door locked and chained when the firefighters entered and subsequently found him unconscious. If the fire was intentionally or recklessly set, he was the only person who could have set it.
• There were two separate locations where fires started in the apartment – one in the living room at the couch on the north wall; one at the north end of the master bedroom at the bed. The fires in these two locations were “non-communicating”, meaning that one did not start the other on its own. I accept the evidence of the fire investigator on this issue. And I accept the evidence that a barbeque/candle lighter was found in the master bedroom on the mattress remains. These two facts are obviously troubling. The fact of two separate ignition sources in distinct locations, unconnected by evidence of fire spread, and the finding of the barbeque/candle lighter at one of those locations is probative evidence supporting the inference that the fires were not accidental. I say this based on two factors: (i) the lesser probability of separate fires coincidentally igniting in two places in the apartment; and (ii) the lighter is something which was capable of starting both fires, and on Mr. Mocibob’s evidence, where it was found in the master bedroom was not its usual location, which was in the dining room. However, I will return to whether, in the context of the evidence as a whole, the evidence satisfies me beyond a reasonable doubt that the fires were set recklessly or intentionally.
• As I have explained above, I have concerns about the reliability of the fire investigator’s evidence about how the fires started.
• There is no direct evidence of how the fires started. No-one gave evidence of observing them start. I accept Mr. Mocibob’s evidence that he has no memory of the events of the fire. Thus, he can shed no light in terms of direct evidence on how the fires started.
• I accept Mr. Mocibob’s evidence that he was content with his life, that he had no financial concerns, and that he had never thought about harming himself. In particular, I accept his evidence that he had accepted the break-up with his wife, and that his son did not want to see him, and that he was not suicidal as a result of this. I find that he had no motive to harm himself or attempt to take his own life.
[112] Considering the points I have summarized above, in the context of all of the evidence, I am not satisfied beyond a reasonable doubt that the fires were intentionally or recklessly set. Although Mr. Mocibob was the sole person with opportunity to set the fires, he had no motive to do so. Although the Crown is not required to prove that Mr. Mocibob had a motive to commit the offences charged (i.e., motive is not an element of the offences), the evidence of absence of a motive to commit the offences is a factor that I must consider in assessing the whole of the evidence before me. The fact that there were two separate locations of ignition of fires is very troubling, as is the presence of the barbeque/candle lighter in the bedroom. But given my concerns about the expert evidence on the issue of how the fires started, I find that there is too much of an evidentiary gap for me to be satisfied beyond a reasonable doubt that Mr. Mocibob intentionally started the fires.
[113] In terms of the law in relation to circumstantial evidence and proof beyond a reasonable doubt, the issue is not so much reasonable alternative inferences (although I will address those in a moment), as that the inference that Mr. Mocibob intentionally or recklessly started the fire, while having some level of probability on the record before me, is not an inference that I find is so compelling that it proves beyond a reasonable doubt that the fires were started intentionally or recklessly – particularly given my finding that Mr. Mocibob had no motive to try to harm or kill himself. Given my concerns about the reliability of the expert opinion evidence on the issue of how the fires started, there is simply too much of a gap on that issue for me to be persuaded beyond a reasonable doubt that the fires were intentionally or reckless started (see R. v. Spencer, 2020 ONCA 838 at para. 44).
[114] Further, in light of my concerns about the reliability of the fire investigator’s opinion evidence on the issue of how the fires started, I find that I am unable to rule out other reasonable inferences from the evidence before the court. As I have noted, the fire investigator’s report, apart from considering and ruling out electrical failure or malfunction for the living room fire only, does not consider and rule out any innocent explanations or causes of the fire. It is true that there is not any positive evidence before the court of other causes of the fires. But inferences consistent with innocence do not have to arise from proven facts. Gaps in the evidence may result in room for reasonable inferences other than guilt. To require proven facts to support inferences other than guilt would be to wrongly put a burden on a defendant to prove innocence, and be contrary to the rule that reasonable doubt is to be assessed considering all the evidence, and any relevant absence of evidence: Villaroman at paras. 35-36.
[115] In light of the gaps in the evidence in this case, I find that I am unable to rule out other reasonable inferences, including: the possibility that one fire was started in an innocent way (by accident or otherwise not intentionally or recklessly), and was somehow spread in an effort to put it out; the possibility that both fires were started either accidentally or otherwise not intentionally or recklessly. I acknowledge that the second of these possibilities seems less likely than the first, due to the improbability of coincidence of two separate unintentional fires. But given the gap left in the evidence due to my concerns about the reliability of the fire investigator’s evidence about how the fires started, I find that both of these are non-speculative inferences other than guilt. In other words, given the gaps in the evidence in light of my concerns about the fire investigator’s opinion, another reasonable inference is that there is a reasonable doubt whether the fires were intentionally or recklessly set (Spencer at paras. 44 and 56). The Crown has not met its burden.
Conclusion
[116] I am not satisfied beyond a reasonable doubt that the fires were intentionally or recklessly set. I find Mr. Mocibob not guilty of both counts.
[117] I thank counsel for their assistance during the trial.
Justice J. Copeland
Released January 8, 2021
[^1]: I appreciate that a finding that someone does not remember an event does not necessarily mean that they were in an automatic state at the time of the event. That is not the point I make here. Rather, the point I make is that I do not read the first requirement of Stone as requiring that a defendant actually remember that they were in an automatic state (since as a practical matter, it appears that in the reported cases where an automatism defence has succeeded, often the defendant had no memory of the events at issue).