R. v. Marttinen, 2021 ONSC 6976

COURT FILE NO.: 8306/20

DATE: 2021-10-27

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

K. Pritchard/M. Talbot¸ Counsel for the Crown

• and -

THOMAS MARTTINEN

M. Carter, Counsel for the Accused

HEARD: September 20-22, 24, 27, 28, 2021

varpio j.

reasons for judgment

[1] On June 17, 2019, Mr. Bernie Agawa and Mr. Thomas Marttinen were living in a rooming house located at 549 Cathcart Street, in Sault Ste. Marie, Ontario. Shortly before 3:00 a.m. on that date, a fire broke out at the rooming house. Mr. Agawa died in the fire. The Fire Marshal’s report indicated that the fire originated in the first-floor hallway near the front of the building.

[2] Multiple tenants gave evidence that Mr. Marttinen would regularly threaten to “burn down the church”[^1] or make similar threats. The tenants did not take these threats seriously since Mr. Marttinen made many such utterances and never followed through upon same. On the night in question and on the morning thereafter, Mr. Marttinen allegedly confessed to setting the blaze on two separate occasions.

[3] As a result of police investigation, Mr. Marttinen now faces two charges: Arson endanger life and manslaughter. Counsel agree that the only issue for me to decide in this trial is whether I am satisfied beyond a reasonable doubt that Mr. Marttinen started the fire that caused Mr. Agawa’s death.

[4] I heard several days of evidence. Most of the witnesses in this trial had criminal records, suffered from mental health issues and/or were hard of hearing. Many witnesses had differing versions of the same events. Mr. Marttinen did not call any evidence.

[5] When I examine the evidence as a whole, I have a reasonable doubt regarding Mr. Marttinen’s guilt as a result of:

a. Credibility and reliability issues suffered by the witness;

b. Mr. Marttinen’s propensity for making bold assertions; and

c. The presence of a third party who appears to have had both a motive and the opportunity to set fire to the rooming house. This third party also engaged in suspicious behaviour during the night in question.

[6] Ergo, I find Mr. Marttinen not guilty of the offences before the court.

THE EVIDENCE

Undisputed Facts

The Layout of the Rooming House

[7] The rooming house was a former church that had been converted into single room residences. Tenants shared common areas such as the kitchen, bathrooms and lounges. It was a low-rent tenancy and many of its residents had mental health issues and/or were involved with the law.

[8] The rooming house is located on the south side of Cathcart Street and the front of the house faces north. The main entrance has steps that lead up to the main doorway. When entering the rooming house, individuals walk southbound into a small foyer-type area. Beyond the foyer, a hallway continues straight ahead in a southbound direction. Immediately past the foyer on the westside of the building (or to the right of someone entering the rooming house) are stairs that lead up to the second floor.

[9] There are three apartment/bedrooms along the east side of the hallway, and a fourth apartment/bedroom is located at the south end of the building. If an individual were to walk down the aforementioned hallway, she or he would pass three apartment/bedroom doors on their left-hand side before getting to the end of the hallway where they would find a fourth apartment/bedroom doorway.

[10] There is a kitchen/laundry/lounge at the rear of the rooming house. This area can be accessed by a hallway that runs off of the main hallway. If an individual entering the rooming house from Cathcart Street were to walk southbound down the main hallway, that individual would first pass the stairway to the second floor on the individual’s right-hand side before arriving at the hallway that leads to the kitchen/laundry/lounge area. This second hallway is also on the individual’s right-hand side. The laundry room is located near Mr. Agawa’s apartment, towards the rear of the building, that is the area of the building away from the front entrance.

[11] A rear door exits the kitchen and leads into the backyard. It is accepted by all witnesses that the rear door was boarded and sealed shut the night of the fire. One could not exit via the rear of the building.

[12] A fire escape runs along the back (or southside) of the building. This fire escape was used by residents as a rear entrance. The fire escape can only be accessed via a second-floor doorway.

[13] Given this layout, an individual on the first floor of the rooming house would have to approach the front foyer area in order to exit the building, to either take the staircase up to the second floor to access the rear fire escape, or to go out the front door.

The Fire

[14] Sometime before 3:00 a.m. on June 17, 2019, a fire broke out at the rooming house. At 2:58 a.m., someone called 911 to report the fire. The fire department attended shortly thereafter. Unfortunately, Mr. Agawa was not able to exit the building. Mr. Agawa was ultimately found by fire fighters in the laundry room area of the main floor. Mr. Agawa was later pronounced dead at the Sault Area Hospital. He died as a result of smoke inhalation.

[15] The fire was investigated by Mr. James Allen, a Fire Investigator with the Office of the Fire Marshal. Mr. Allen determined that the fire was intentionally set. Carpet samples were taken from the rooming house and sent to the Centre for Forensic Sciences (“CFS”) for analysis. A sample from the hallway located in fairly close proximity to the front door was sent for analysis. CFS determined that said sample contained gasoline. Accordingly, the Fire Marshall determined that the fire was intentionally set using gasoline as an accelerant and an independent fire source, such as a match or a lighter.

[16] Once the fire achieved a critical mass, the front foyer-area was blocked to all occupants of the rooming house. Those occupants located on the second floor could only leave the rooming house via the rear fire exit since access to the front door would have been blocked by fire and smoke. Occupants of the first floor could only have exited the rooming house via the windows or by breaking down the rear kitchen door (which no one appears to have attempted) since passage to the front door would have been blocked.

[17] The Sault Ste. Marie Police Service (“SSMPS”) attended on the night in question. The scene was secured, and the police discovered a red jerry can (or gas can) sitting by the front stairs of the rooming house. The jerry can contained gasoline. No fingerprints were found on the jerry can due to its corrugated plastic construction.

[18] Apartment number three is located along the eastside of the main hallway towards the front foyer. Police located cigarette packages, cigarette butts, rolling papers and lighters on top of the night table located in apartment number three. In the drawer of the night table were bills and receipts in Mr. Marttinen’s name.

The Disputed Evidence

Mr. Joshua Scott

[19] Mr. Scott testified that he is a fire fighter. He attended at the rooming house around 3:00 a.m., on June 19, 2019. He testified about a variety issues, most of which were accepted as undisputed facts.

[20] He also testified that when he arrived on scene, other fire trucks were present as was a platoon chief.

Ms. Tracy Daigle

[21] Ms. Daigle testified in a manner that made it difficult to understand her evidence. She testified that she suffers from schizophrenia but she insisted that she has no symptomology associated with that illness. Accordingly, she does not take medication for the ailment. She gave her evidence in a rapid fire, stream-of-consciousness fashion that made it difficult to comprehend. Adding to this difficulty, Ms. Daigle is very hard of hearing such that the trial had to move to a smaller courtroom to take advantage of improved acoustics. Ms. Daigle indicated that she is better able to understand what people say when she can lipread.

[22] Ms. Daigle testified that she has premonitional dreams including a dream that predicted the passing of RCMP Officer Heidi Stephenson in the Atlantic Canada shooting rampage. Ms. Daigle indicated to the court that she often hears voices, and that she is a CIA operative. Ms. Daigle gave rambling evidence about the nature of the internet, its looming crash and other difficulties affecting society.

[23] In examination-in-chief, Ms. Daigle was asked about a conversation that she had with Mr. Marttinen approximately two years ago. Ms. Daigle had formerly lived at the church, while Mr. Marttinen lived in apartment three. She testified that she saw Mr. Marttinen at the corner where the “Métis place” is located, near the Tim Horton’s on Queen Street in Sault Ste. Marie. She does not remember the exact words used, but she testified that Mr. Marttinen indicated to her that he had doused the church in gasoline and threw in the match (the “Daigle Confession”). Mr. Marttinen was in good spirits. Ms. Daigle gave Mr. Marttinen a hug.

[24] At this point, Ms. Daigle and Mr. Marttinen either went for a coffee or went their separate way. Mr. Marttinen wanted oxycodone from a woman named Linda.

[25] Ms. Daigle testified that she later saw Mr. Marttinen standing at a police cruiser wearing a bright coat. Mr. Marttinen was on a bicycle.

[26] Ms. Daigle attended at the local library[^2] after finding out that Mr. Agawa had died in the church fire. Ms. Daigle testified that Mr. Eric Richer or Mr. Gordie Leonard had told her about Mr. Agawa’s passing. I was uncertain as to when Ms. Daigle made this discovery. Ms. Daigle phoned the police and told them that Mr. Marttinen had started the fire. Ms. Daigle testified that she could not believe that Mr. Marttinen would admit to such a thing since he did not start the fire. Ms. Daigle testified that she still does not believe that Mr. Marttinen started the fire.

[27] In cross-examination, Ms. Daigle denied knowing Mr. Josh Kearns or Ms. Angela Flamand. She indicated that she knows Mr. Richer and Mr. Leonard, and that the latter is a crystal meth addict.

Ms. Shannon Clement

[28] Ms. Clement testified that on June 17, 2109, she was a police officer with the SSMPS. At 5:50 a.m., she received a phone call from a staff sergeant who dispatched her to a fire at 549 Cathcart Street, Sault Ste. Marie, which is a former church known as Our Lady of Mount Carmel.

[29] Her main involvement with the case occurred on June 18, 2019 when she and her partner, Cst. Addison, interviewed Ms. Daigle who described Mr. Marttinen as wearing a construction jacket and jeans.

[30] After the interview, the police officers parked in the rear of the rooming house and they observed a male walking eastbound in a laneway. He was wearing the same clothing as was described by Ms. Daigle. The individual was arrested and searched. It was Mr. Marttinen. Police located a packet of matches, a lighter and a silver pocketknife on his person.

Mr. Eric Richer

Examination-in-Chief

[31] Mr. Richer testified that on June 17, 2019, he had been living at the rooming house for about 18 months. He resided in room eleven, on the second floor. On that date, he was residing with Ms. Cassandra Ochoa, his girlfriend. Mr. Richer and Ms. Ochoa had been jointly charged prior to that date and were on a recognizance with conditions that they have no contact with one another.

[32] Late on the night in question, Mr. Richer and Ms. Ochoa were in bed when the latter had to go to the washroom. Mr. Richer testified that there were many people who lived in the rooming house and that he decided to stand outside the washroom. From that statement, I infer that Mr. Richer had concerns for Ms. Ochoa’s safety given the number and the nature of the tenants who resided at the rooming house. Mr. Richer stood outside the bathroom while Ms. Ochoa was occupied.

[33] About 3:15 a.m. or 3:30 a.m., Mr. Richer was standing outside the bathroom door when he smelled burning plastic. He saw smoke coming up through the door. Mr. Richer opened the door and saw a lot of black smoke coupled with extreme heat.[^3] He testified that the fire and heat told him that he could not go down the front stairs. He banged on the bathroom door, telling Ms. Ochoa that the rooming house was on fire. There was no fire alarm sounding, which he thought was strange. He and Ms. Ochoa gathered their things, grabbed their cat and exited the building via the second-floor fire escape.

[34] Outside, Mr. Richer testified that he saw an Indigenous woman in her mid-30’s in the backyard. He had never seen her before.

[35] Mr. Richer testified that he saw someone on a bicycle in the alleyway heading towards the soup kitchen. He did not identify that person at first but he later realized that that person was Mr. Thomas Marttinen because of the clothes Mr. Marttinen was wearing: a blue jacket and a red ball cap. Mr. Marttinen lived in the apartment below Mr. Richer. Mr. Richer did not know where Mr. Marttinen was coming from but Mr. Marttinen was biking towards the soup kitchen.

[36] He saw “Gord” using a phone. He did not know whether Gord was calling 911. Mr. Richer did not know how Gord got out of the building since Mr. Richer believed that Gord’s windows were screwed shut. Mr. Richer hypothesized that Gord may have exited the building before the fire started.

[37] At this point, Mr. Richer told Ms. Ochoa that he was going to re-enter the house because there were still people inside. Ms. Ochoa told him not to go back inside because it was too dangerous. Mr. Richer entered the house and went to the second floor. He knocked on Mr. Pascal Houle’s door. Mr. Houle was heavier set and it took Mr. Houle a while to get to the door. Mr. Houle asked if the tenants needed a fire extinguisher and Mr. Richer said they were past the extinguisher stage. Mr. Houle and his wife left the rooming house.

[38] Mr. Richer checked on “Graham”, with whom he had had some disputes. Graham exited the building. At one point, Mr. Richer could see flames coming up the hallway from downstairs. He could also see flames through the upstairs window. Mr. Richer checked the rest of the second floor and then exited the rooming house. When he got outside, he could see flames coming out the window. At this point, the people that Mr. Richer had named were outside, and no one else. Professionals had yet to arrive on scene.

[39] Mr. Richer was waiting for a ride when a police officer arrived and asked him if he wished to go to the police station to give a statement. Mr. Richer did so.

[40] The Crown showed Mr. Richer a picture of the front of the rooming house with the jerry can visible by the main staircase. Mr. Richer testified that the can had come from the garage. Mr. Richer knew about the gas can because he had purchased a golf cart and had used the can to fill up the golf cart. The can was half-full and Mr. Richer had put the can in the backyard as per the landlord’s instructions. He had last seen the gas can approximately two days prior to the fire.

[41] Mr. Richer was also shown a picture of the back of the rooming house with the garage visible. In front of the garage were two jerry cans. Mr. Richer testified that only the landlord had access to the garage. Mr. Richer testified that the landlord had fortified the back door to the kitchen because the landlord had allegedly seen someone try to pry open the back door.

[42] Mr. Richer came back from the police station around 6:30 a.m. At that time, Mr. Richer observed Mr. Marttinen biking past 555 Albert Street, near Carmen’s Way.

[43] Mr. Richer admitted that he had a criminal record that is several pages long containing entries for drugs, firearms, obstruct police and other assorted offences.

Cross-Examination

[44] Mr. Richer admitted that, two days before the fire, he saw all three gas cans. All three were in front of the garage. He used one for his golf cart and returned it to the front of the garage.

[45] Mr. Richer initially denied living with Ms. Ochoa when speaking with police because the two were the subject of a non-communication order. Mr. Richer indicated that if he had mentioned same to police, he would have been admitting that he was in direct breach of a court order. Mr. Richer gave a subsequent statement to police in order to tell the truth.

[46] Mr. Richer was confronted with the fact that he did not initially tell police that the person on the bicycle was Mr. Marttinen. Mr. Richer indicated that he only figured out who the person on the bicycle was after giving the initial statement. When he subsequently saw Mr. Marttinen, Mr. Richer knew that Mr. Marttinen was the person he initially observed on the bicycle heading towards the soup kitchen.

[47] Mr. Richer discovered that Mr. Marttinen lit the fire when the landlord advised Mr. Richer that Mr. Marttinen had done so. The landlord advised Mr. Richer that the landlord had driven Mr. Marttinen to the police station to turn himself in.

[48] Mr. Richer testified that he was charged with trespassing by the landlord after the fire. Mr. Richer denied having problems with the landlord prior to the fire. Mr. Richer denied that he was in the process of being evicted prior to the fire. Mr. Richer admitted that the landlord had told Mr. Richer that Mr. Richer was not allowed to have his golf cart on the property. Mr. Richer testified that the golf cart was stolen prior to the fire. Mr. Richer only had the golf cart for one day when it was stolen. After the fire, Mr. Richer testified that the landlord charged Mr. Richer with trespassing due to an incident where Mr. Gord Leonard let Mr. Richer into the rooming house to get the latter’s belongings. Mr. Richer was evasive regarding the nature and the rationale behind the trespassing charge. Mr. Richer testified that the landlord ultimately told Mr. Richer not to return to the rooming house. Mr. Richer agreed that he was charged with trespassing but insisted that he was never evicted. Mr. Richer was evasive in his testimony on this point.

[49] Mr. Richer testified that, when he woke up around 3:15 a.m. on the night of the fire, Ms. Ochoa woke up at the same time. He took her to the bathroom as there were a lot of people in and out of the rooming house. The back door had been kicked in numerous times.

[50] Mr. Richer was asked about the Indigenous woman. She would not identify herself to Mr. Richer. She was standing on the driveway by the back door, beside the garage. She was not standing by a gas tank. She was about two metres away from Mr. Richer, standing face-to-face with him. Mr. Richer provided a description of the Indigenous woman to police.

[51] Mr. Richer testified that the Indigenous woman told him that Mr. Mike Gingras was at the rooming house and had started the fire. Ms. Ochoa was present when Mr. Richer was speaking to the Indigenous woman. Ms. Ochoa was behind Mr. Richer but was looking for her cat. Mr. Richer did not know if Mr. Ochoa heard the Indigenous woman’s statement regarding Mr. Gingras. Mr. Richer did not see Mr. Gingras on the night of the fire but had seen Mr. Gingras at the rooming house a week or two before the fire.

[52] Mr. Richer testified that Mr. Gingras used to frequent the rooming house. He was a homeless person. Mr. Richer gave evidence that he had no problem with Mr. Gingras. Mr. Richer was confronted with his statement to police wherein he indicated that Mr. Gingras was a “bottom-of-the-barrel type guy”.

[53] After the fire, Mr. Richer went to the Day’s Inn. The Houles were there. Mr. Richer did not see Mr. Leonard at the Day’s Inn, nor did he speak with Ms. Tracy Daigle. Graham was present as well.

[54] Mr. Richer denied inventing a story about the Indigenous woman so as to divert attention from the fact that Mr. Richer had set the fire. Mr. Richer indicated that he did not bring gasoline into the rooming house on the night in question. Mr. Richer testified that he had no reason to be angry with the landlord. Mr. Richer insisted that he did not start the fire.

Re-Examination

[55] Mr. Richer testified that he fixed the front door a week prior to the fire. The day of the fire, the front door locked but one could also gain access to the rooming house via a window located beside the front door.

Mr. Gordon Leonard

Examination-in-Chief

[56] Mr. Leonard testified in a manner that was somewhat difficult to understand. He had a quiet voice and his testimony jumped between subject areas. His evidence also seemed to confuse the order of events. Mr. Leonard admitted that he suffers from mental health issues such that he hears voices and that it is “hard for me to decide what’s real and what’s not”.

[57] Mr. Leonard lived at 549 Cathcart Street on the night of June 17, 2019. Mr. Leonard testified that he lived in apartment four. He testified that Mr. Marttinen lived in apartment three. Mr. Leonard testified that Ms. Tracy Daigle lived upstairs along with Pascal, Eric and Justin. Mr. Leonard testified that if he looked outside the peephole of his apartment, he could see anyone coming in through the front door.

[58] On the night of the fire, Mr. Leonard was watching movies on his computer. After one of the movies ended, Mr. Leonard went to the bathroom around 2:45 a.m. The bathroom is to the left of Mr. Leonard’s apartment. Given what ultimately transpired, Mr. Leonard testified that he ought to have smelled gas when he went to the bathroom but “there was nothing there”. When he went to the bathroom, Mr. Leonard could hear Mr. Marttinen talking to himself in the kitchen area. Mr. Leonard testified that it was not uncommon for Mr. Marttinen to talk to himself.

[59] Within five minutes of Mr. Leonard’s return to his apartment, the fire alarm sounded. Mr. Leonard went to see Mr. Agawa to shut off the alarm, but there were already flames in the hallway. Mr Leonard heard Mr. Marttinen’s voice saying something from outside Mr. Leonard’s window. Mr. Marttinen was walking past Mr. Leonard’s window. Mr. Leonard could not understand what he was hearing. Mr. Leonard testified that he wondered whether Mr. Marttinen was speaking with an imaginary friend. Mr Marttinen was saying something about “windows”. Mr. Leonard knew Mr. Marttinen was speaking with himself because Mr. Leonard has two mattresses and a box spring directly underneath his window. Mr. Leonard could thus see Mr. Marttinen as Mr. Marttinen walked from the front of the building towards the laneway. Mr. Leonard specified that he was sitting on his bed when he heard the fire alarm. It was at that point that Mr. Leonard heard Mr. Marttinen go past his window.

[60] Mr. Leonard testified that he touched the doorknob area, and that it was hot. There was flame and smoke coming through an opening where the doorknob should have been. Mr. Leonard had previously removed the doorknob to get a new one. He looked through the aperture and saw flames. Mr. Leonard therefore jumped out of his window and called the fire department.

[61] People were gathering outside the rooming house as the fire department arrived. People exited the second floor via the fire exit. Mr. Leonard does not remember exactly who exited the rooming house at that time.

[62] Mr. Leonard testified that he observed a jerry can outside the front of the house when he exited the building. He saw no one touch the jerry can or move it. Prior to the fire, Mr. Leonard had seen the can on the four-wheeler that had been parked behind the garage.

[63] Mr. Leonard had lived in the rooming house for approximately two years prior to the fire. Mr. Marttinen moved into the rooming house approximately one year prior to the fire. Mr. Marttinen was a “good guy” but would talk about blowing things up. Mr. Leonard testified that Mr. Marttinen would get angry when he did not get his way and would say “stuff like that”. He would say such things but did not ever follow through on his threats.

[64] Mr. Leonard testified that he does not know Mr. Josh Kearns or Ms. Angela Flamand. He testified that he knows Ms. Tracy Daigle but that he did not talk with her about the fire. Such conversations depress him because Mr. Agawa was one of Mr. Leonard’s friends. Mr. Leonard had known Mr. Agawa for twenty years and knew Mr. Agawa’s whole family.

[65] Mr. Leonard admitted to having an extensive criminal record with over 90 entries dating from 1984 to 2015 including offences of dishonesty and violence.

Cross-Examination

[66] Mr. Leonard admitted that prior to giving his police statement, he was at the Day’s Inn with the other tenants. He testified that Ms. Tracy Daigle was not present at the Day’s Inn, but that he has seen her since the fire. Mr. Leonard did know how he got to the police station to give a statement.

[67] On the night of the fire, “Pascal” lived upstairs with his wife “Kathleen”. Mr. Leonard remembered seeing Kathleen come down the fire escape. He remembered everyone coming down including Pascal and Mr. Richer. Mr. Leonard testified that Mr. Richer had come down from the second floor to open the front door for Mr. Leonard. The door was not easy to kick in. Mr. Leonard did not specify why he needed the front door opened or where Mr. Leonard was when it was opened. Mr. Richer went back upstairs again by the back door as the fire was too hot to go in the front door. Mr. Leonard saw “Justin” and “Cassandra” exit the rooming house.

[68] Mr. Leonard changed his testimony to indicate that Ms. Daigle was not living at the rooming house at the time of the fire but that she used to live there. Ms. Daigle was “picking butts” at the Days Inn immediately after the fire. Mr. Leonard decided to give Ms. Daigle a cigarette. He testified that he remembered this fact during cross-examination. Mr. Leonard told Ms. Daigle what had happened. He had a long talk with her. At the Days Inn, everyone was talking to one another, but Mr. Leonard kept to himself. He was too angry and upset to talk to anyone. Everyone at the Days Inn was talking about the fire.

[69] Mr. Leonard testified that, when he heard Mr. Marttinen in the kitchen, he could not make out what Mr. Marttinen was saying but that Mr. Marttinen did not sound angry. The layout and construction of the rooming house was such that one could hear sounds from the kitchen. Nonetheless, Mr. Leonard admitted to hearing voices and that sometimes he “hears things and then they lock me up”.

[70] Mr. Leonard testified that he did not see Mr. Marttinen again after observing Mr. Marttinen walk past his window. Mr. Leonard confirmed that Mr. Marttinen was not running, but was simply walking. Mr. Leonard also confirmed that the fire alarm was sounding when Mr. Marttinen walked past the building. Mr. Marttinen was heading towards the laneway behind the house. He was not riding a bicycle. Mr. Leonard could not remember what Mr. Marttinen was wearing at the time he passed Mr. Leonard’s window.

[71] When asked about whether he had seen an Indigenous woman outside the rooming house, Mr. Leonard responded, “Not that I remember”.

[72] When asked about Mr. Gingras, Mr. Leonard testified that Mr. Gingras attended at the rooming house on a couple of occasions. Mr. Leonard would not let him into his room because the room was small. Mr. Leonard did not ever sit with Mr. Gingras in the common area. Mr. Gingras was not there often. Mr. Leonard did not see Mr. Gingras on the night of the fire because Mr. Leonard was busy working and watching television.

Re-Examination

[73] Mr. Leonard described his conversation with Ms. Daigle at the Days Inn. Mr. Leonard stated that he told Ms. Daigle that the tenants had to stay at the Days Inn because of the church fire. She asked for a cigarette and he supplied her with one. Mr. Leonard did not remember stating much else to Ms. Daigle.

[74] Mr. Leonard provided more specifics about Mr. Marttinen’s statements and threats. Mr. Leonard testified that Mr. Marttinen would say that he’d blow things up and/or set them on fire. He never specified that he would do these things to the rooming house. Mr. Leonard took Mr. Marttinen as simply venting his emotions.

Mr. James Syrette

[75] Mr. Syrette testified that he lived in the rooming house on June 17, 2019, but lived in an apartment that was separated from the other residents. He learned of the fire when he heard a commotion as fire fighters came up the hallway.

Sergeant Robert Chabot

[76] Sgt. Chabot testified that he served as scene security commencing at 03:38 a.m. on June 17, 2019. He was sitting in a marked cruiser when Ms. Tracy Daigle approached him and identified “Thomas” as the individual who had set the fire. Sgt. Chabot did not know the last name of the individual so identified. Ms. Daigle advised that Thomas was wearing a fluorescent, construction style jacket and was riding a bicycle.

[77] Around 5:30 a.m., Sgt. Chabot was in the vicinity of the Marconi Hall, which is a relatively short distance from the rooming house. He observed a male matching the description provided by Ms. Daigle, travelling westbound on Cathcart Street, going towards the rooming house. The individual was wearing a construction jacket.

Sergeant David Sguigna

[78] Sgt. Sguigna was the primary investigator in this case. He gave evidence, much of which confirmed matters that were ultimately admitted in the accepted facts as outlined above.

[79] Sgt. Sguigna confirmed that he received information from Mr. Richer suggesting that Mr. Gingras had set the fire. Sgt. Sguigna also testified that he had received information that the landlord had set the fire. Given the other information at his disposal, Sgt. Sguigna did not think Mr. Gingras or the landlord were “Persons of Interest”.

Mr. Joshua Kearns

Examination-in-Chief

[80] Mr. Kearns’ evidence was difficult to follow as his testimony was not always chronological. Mr. Kearns testified that, one night in June 2019, he was at the West Side Café on Queen Street with his girlfriend, Ms. Angela Flamand. The West Side Café is located to the west of the rooming house. They were outside, having a cigarette around 1:00 or 2:00 a.m. Mr. Kearns was sober and the pair were waiting to share a poutine. Mr. Kearns was crouched down, directly in front of the restaurant, with his girlfriend in front of him. Ms. Flamand was on the sidewalk.

[81] Mr. Kearns observed an individual walking eastbound on Queen Street. The individual looked very emotional and was walking quickly. The individual crossed Huron Street and was on the sidewalk when he murmured something regarding “church on fire”. Mr. Kearns did not remember the exact words. It was something akin to “I set the fire” or “I set the church on fire”. Mr. Kearns remembers hearing the words: “I”, “church”, “fire” and a word like “lit” or “set”. When the words were uttered, the individual was approximately 15’ or 20’ away from Mr. Kearns. Mr. Kearns testified that he believed that the individual did not stop but continued walking as he made the utterance. Because Mr. Kearns was crouched down, the individual was not always in Mr. Kearns’ field of vision.

[82] Mr. Kearns did not recall whether the individual stopped at any point. Mr. Kearns recognized the individual as Tom, someone with whom he had been in the psychiatric ward for a month or two. This stay in the psychiatric ward had been a year or two prior to the day in question. During the stay in the psychiatric ward, Mr. Kearns would see Tom a couple of times a day. He remembers giving Tom a pack of cigarettes at one juncture. Mr. Kearns identified Tom as the accused in court.

[83] On the night in question, Mr. Kearns had no trouble recognizing Tom because the scene was fairly well lit with streetlights. At the time, Mr. Kearns did not know what Tom was referencing. Tom walked all the way down Queen Street to Gore Street and disappeared around the corner. As Tom went around the corner, Mr. Kearns heard fire truck sirens, saw security cars flying past the café and observed a fire supervisor vehicle go past the café as well. The sirens were going from west to east. Mr. Kearns did not recall how long he heard the sirens.

[84] Mr. Kearns and Ms. Flamand both had bicycles. They walked to Gore Street. Mr. Kearns jumped on his bicycle to catch up to Tom. Mr. Kearns caught Tom and asked him what was going on. Mr. Kearns testified that he was trying to get more information from Tom. At this point, Tom stated, “I’m going to stab you”, to Mr. Kearns. As a result, Mr. Kearns testified that he “backed off” and attended at the bus terminal area. This conversation occurred directly across from Benjamin’s Jewelers on Queen Street.[^4] It took between two and five minutes to travel from the West Side Café to Benjamin’s Jewelers.

[85] Mr. Kearns later found out that a fire had occurred at the rooming house from a local online news source, Sootoday.com. Mr. Kearns does not know when he found out about the fire since he does not own a computer or a phone.

[86] Mr. Kearns gave a statement to police sometime after the fire. He recalls being with Ms. Flamand at Ms. Tricia Daigle’s residence. The three were talking about the fire. Ms. Trisha Daigle[^5] said that she would call the police on their behalf. Ms. Trisha Daigle was Ms. Flamand’s friend. When asked if he knew the name “Tracy Daigle”, Mr. Kearns stated: “Tracy… Tracy Daigle, maybe it was Tracy, I don’t know…” Mr. Kearns indicated that he did not know how long Ms. Flamand knew her friend with the last name “Daigle” but that Ms. Flamand would know the person’s given name.

[87] Mr. Kearns admitted that he knew the name “Gordie Leonard” but did not know the person.

Cross-Examination

[88] Mr. Kearns testified that he was somewhat hard of hearing.

[89] Mr. Kearns also indicated that he did not know if the conversation with Ms. Tricia Daigle occurred before or after he read about the fire in SooToday. Mr. Kearns denied speaking with anyone about the incident while he attended the soup kitchen.

[90] Mr. Kearns was not aware of the precise date that he provided a police statement.

[91] Mr. Kearns was not certain as to the exact date or time that he saw Tom in front of the West Side Café. He believed that he observed Tom around 1:00 a.m. but that it may have been closer to midnight.

[92] Mr. Kearns also testified that he followed Tom to Benjamin’s Jewelers because he thought that he would eventually file a report with police, so he wanted more information. Mr. Kearns was confronted with the fact he did not go to the police but that police located him on July 4, 2019. Mr. Kearns justified this fact by stating that he was hoping to bump into Tom prior to giving a statement.

Ms. Angela Flamand

Examination-in-Chief

[93] On June 17, 2019, Ms. Flamand was in front of the West Side Café. She testified that around midnight – she was not sure of the exact time – she and her boyfriend, Mr. Kearns, were having a cigarette, waiting for food. It was a clear night. It was dark. The streetlights were on. A third person was with them. Ms. Flamand believed that person was a cook. The third person was standing close to the West Side Café. Ms. Flamand was standing on the sidewalk. Mr. Kearns was standing on the sidewalk beside her. A man walked by Ms. Flamand and Mr. Kearns saying, as he passed, that he had lit the church on fire. Ms. Flamand estimated that the man was between five and ten feet from the couple when he made the utterance. She did not know the man. His exact words were: “I just lit the church on fire” (the “West Side Confession”). The individual kept walking along Queen Street. Ms. Flamand lost sight of the individual at the intersection of Gore Street and Queen Street.

[94] Ms. Flamand knew the man was referencing the church in Jamestown, which was now a rooming house. Ms. Flamand lived in that area and everyone called the rooming house, “The Church”. She lived at The Church three years prior to testifying. The Church is on Cathcart Street.

[95] Ms. Flamand heard sirens five or ten minutes after the individual passed the West Side Café. The sirens appeared to be headed towards the rooming house. They were coming from the fire house located on Taggert Street, heading towards Jamestown.[^6] She had lost sight of the confessor by the time she first heard the sirens. At that point, she turned to Mr. Kearns and told Mr. Kearns that the passing man had burned down The Church.

[96] Ms. Flamand testified that she and Mr. Kearns then went about their night. They did not attend the scene. Ms. Flamand did not describe any other event of significance from that evening.

[97] Ms. Flamand described the confessor as being around 5’9”, with short hair and wide eyes. He was wearing a hoodie and jeans. She pointed to the accused as the individual who passed her at the West Side Café.[^7]

[98] Ms. Flamand testified that, a while later, the police came to speak with Mr. Kearns and her. She indicated that she spoke to no one about the incident. At no point did she say anything about the fire. She heard about Mr. Agawa’s passing from her mother a few days after the event.

[99] Ms. Flamand testified that she does not know a “Gordie Leonard”. Ms. Flamand testified that she knows a Ms. Tricia Daigle and that Ms. Flamand dated Ms. Tricia Daigle’s son a long time ago. She does not know a Ms. Tracy Daigle. Ms. Flamand appeared to hesitate when giving her testimony about the Daigles.

[100] Ms. Flamand admitted that she has a criminal record that includes a number of breaches of court orders and failures to appear.

Cross-Examination

[101] Ms. Flamand confirmed that, after the individual walked past the West Side Café, she and Mr. Kearns ultimately lost sight of the individual. She and Mr. Kearns then went inside the café to grab something to eat. It was probably poutine. She believes that they ordered take-out because they do not like to sit inside the restaurant as the tables are close together and everyone can hear what everyone else says.

[102] Ms. Flamand testified that she remembers going to the police station around July 4, 2019 to give a statement. She does not know why the police came to visit her.

[103] Ms. Flamand indicated that she remembers having discussions in the community regarding the fire but does not have a specific recollection of where or with whom these discussions took place. She agreed that people told her about the fire, and she thought that maybe people at the soup kitchen had done so. Ms. Flamand testified that she may have spoken with a couple of people about the fire at the soup kitchen. She also remembered having discussions about the fire within the community.[^8]

[104] Ms. Flamand knew a lot of people who stayed at the rooming house but did not know a “Gordie” or a “James”. She knew Mr. Richer but did not speak with him very much. Ms. Flamand testified that she used to speak with the Houles.

[105] Ms. Flamand again confirmed that she does not know a Ms. Tracy Daigle but that she knows a Ms. Trisha Daigle. Ms. Flamand ultimately remembered that she knows of a Ms. Tracy Daigle but that she has never spoken with Ms. Tracy Daigle.

Constable Joe Addison

[106] In June 2019, Cst. Addison of the SSMPS helped investigate the rooming house fire. On June 17, 2019 shortly after 1:00 p.m., Cst Addison received a phone call from the Sault Ste. Marie Public Library. Library staff called to state that Ms. Tracy Daigle wanted to ensure that SSMPS spoke with her regarding the fire.

[107] On June 18, 2019, Cst. Addison interviewed Ms. Tracy Daigle. As a result of that interview, Cst. Addison obtained video from the Tim Horton’s at the corner of Brock Street and Bay Street. The video shows that at 5:35 a.m. on June 17, 2019, Ms. Daigle and Mr. Marttinen entered the Tim Horton’s. They exited the store at 5:50 a.m. Ms. Daigle re-entered the store at 6:32 a.m. and exited the store at 6:34 a.m.

[108] At 6:53 a.m., Mr. Marttinen re-entered the store. Ms. Daigle re-entered the store at 7:13 a.m. Mr. Marttinen exited the store at 7:15 a.m. while Ms. Daigle exited the store at 7:23 a.m. It is clear from this video that the two individuals spoke with one another. Mr. Marttinen was wearing a dark shirt, but not a hoodie.[^9] At one point in the video, Mr. Marttinen was holding a coffee.

[109] Cst. Addison located Mr. Kearns and Ms. Flamand at 1:45 p.m. on July 4, 2019. Cst. Addison testified that SSMPS believed that Mr. Kearns and Ms. Flamand might have information regarding the fire as a result of certain social media posts. The pair were interviewed.

Mr. Pascal Houle

[110] Mr. Houle could not be located for trial.

[111] His preliminary hearing evidence was the subject of an application to admit evidence pursuant to the principled exception to the hearsay rule. I granted that application (2021 ONSC 6703). Mr. Houle is facing outstanding charges for which he has failed to appear in court. A bench warrant exists for his arrest.

[112] At the preliminary hearing, Mr. Houle testified about the night of June 17, 2019. He and his wife Kathleen were living at the rooming house. They were awoken in the middle of the night by a banging on the door. Someone was telling them that there was a fire in the house. The Houles grabbed some belongings and exited the building via the second-floor fire escape.

[113] All the tenants gathered outside the building except for two – Mr. Agawa and “James”. Mr. Houle observed a jerry can by the stairs in the front of the house.

[114] Mr. Houle testified that Mr. Marttinen lived in apartment three. Mr. Houle also testified that prior to the fire, Mr. Marttinen would make statements:

We heard him [Mr. Marttinen] say a couple times while he was at our place that he would set the church on fire – set the place on fire and so on, but nobody really paid attention to it ‘cause he would say things normally that he would never do, so it was just normal for us to hear something like that until this time it really happened that the saying became an action. It wasn’t just words said, he literally did it.

[115] Mr. Houle could not specify the number of times he heard Mr. Marttinen make these statements, saying that it would “just be here and there”. Mr. Houle testified that Mr. Marttinen made these statements over a period of two or three weeks but could not specify when that two or three-week period occurred.

[116] Mr. Houle did not provide any evidence for how he came to believe that Mr. Marttinen set the fire.

[117] In cross-examination, Mr. Houle testified that Mr. Marttinen would say things that did not make any sense.

[118] Mr. Houle also testified in cross-examination that the tenants spoke about the fire both at the scene, as well as at the Day’s Inn.

Ms. Kathleen Houle

[119] Ms. Houle could not be located for trial.

[120] Her preliminary hearing evidence was the subject of an application to admit evidence pursuant to the principled exception to the hearsay rule. I granted that application (2021 ONSC 6703).

[121] At the preliminary hearing, Ms. Houle testified that, on the morning of June 17, 2019, Ms. Houle was living with her husband in the rooming house. They had a room on the second floor. She was up late at night and “Cassie” came to her door. The fire alarm kept going off. Shortly thereafter, “Eric” came to her door saying they had to leave as a result of a fire. The Houles left the residence via the fire escape and went outside where they saw tenants such as “Gordie” and “Justin”. People were talking about the fire and Ms. Houle learned that the fire had been deliberately set.

[122] In regard to Mr. Marttinen, Ms. Houle testified that she knew him and that he lived at the rooming house. Ms. Houle testified that “[w]henever he [Mr. Marttinen] gets angry or upset or whenever he would say he’s going to burn the church down...we didn’t listen to it anymore”. Mr. Marttinen said such things twenty or thirty times while in the Houles’ room. Ms. Houle last heard Mr. Marttinen say these things a week before the fire.

[123] In cross-examination, Ms. Houle testified that Mr. Marttinen would say other things that did not make sense and that he said such things because he had “mental problems”.

[124] Ms. Houle’s demeanor as recorded by the audio evidence was noteworthy in that she often cried and upon occasion seemed almost hysterical.

POSITIONS OF THE PARTIES

[125] The Crown submitted that it has proven beyond a reasonable doubt that Mr. Marttinen set the fire. The Crown argued that the following points prove the Crown’s case:

a. Access to the rooming house was limited given the fact that the kitchen door was barred shut and the front door had had its lock fixed prior to the fire;

b. Mr. Marttinen lived near the location where the fire started. Lighters were found in his room;

c. Mr. Marttinen made statements on multiple occasions to other tenants that he intended to burn down the rooming house;

d. Mr. Marttinen confessed on two occasions that he set the fire; and

e. Mr. Leonard heard Mr. Marttinen in the kitchen – where there was no ability to escape – prior to the fire. Subsequent to the blaze gaining appreciable size, Mr. Leonard saw Mr. Marttinen outside the house. Mr. Marttinen, therefore, would have had to have set the fire because, had he not set the fire, he would not have been able to escape.

[126] The Crown submitted that, despite the obvious problems associated with their testimony, Ms. Daigle and Mr. Leonard were credible witnesses because their evidence was logical, without animus and corroborated in important ways. As regards Ms. Flamand and Mr. Kearns, their evidence was largely untouched and there is no reason to disbelieve same.

[127] Mr. Marttinen argued that each of the witnesses had evidential issues such that their evidence cannot be accepted. Further, Mr. Richer’s evidence was such that he could have been the perpetrator of the crime and I therefore ought to have a reasonable doubt that Mr. Marttinen committed the crimes in question.

THE GOVERNING LEGAL PRINCIPLES

Credibility, Reliability and Mental Illness

[128] Doherty J.A. described the difference between credibility and reliability at page 526 of R. v. Morrissey, (1995) 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.):

Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is, his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is, honest witness, may, however, still be unreliable. In this case, both the credibility of the complainants and the reliability of their evidence were attacked on cross-examination.

[129] Watt J.A. described the difference between credibility and reliability at para. 41 of R. v. H.C., 2009 ONCA 56:

Credibility and reliability are different. Credibility has to do with a witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engages consideration of the witness's ability to accurately

(i)observe;

(ii)recall; and

(iii)recount

events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (R.J.) (1995), 1995 CanLII 3498 (ON CA), 80 O.A.C. 161; 22 O.R. (3d) 514 (C.A.), at 526 [O.R.].

[130] The Manitoba Court of Appeal examined the law as it pertains to credibility, reliability and mental illness in R. v. Perrone, 2014 MBCA 74, [2014] M.J. No. 217 (M.C.A.), appeal dismissed 2015 SCC 8, [2015] 1 S.C.R. 473 (S.C.C.). At para. 30, the Manitoba Court of Appeal stated:

A mental illness does not necessarily imply an issue with reliability. In R. v. M.H., 2003 BCCA 607, 188 B.C.A.C. 315, Levine J.A. commented that the fact that a trial judge was not aware of a witness's bi-polar disorder was irrelevant in the absence of any evidence of "some connection between that disorder and the reliability of their evidence" (at para. 9). Similarly, in R. v. Nickerson (L.E.) (1993), 1993 NSCA 152, 121 N.S.R. (2d) 314, Chipman J.A. commented (at paras. 25-26):

.... The mere fact that such a victim, particularly of sexual assault, has a psychiatric history is not of itself relevant.

But went on to say:

A psychiatric condition of a witness, just as any other medical condition, is admissible to show that the witness suffers from such disease or abnormality as might affect the reliability of his or her evidence. To deny such an attack upon the capacity of the witness could lead to an injustice. Clearly it would be unthinkable that medical evidence to show that a witness' eyesight or hearing was too impaired to enable such witness to see or hear that about which testimony was or was to be given should be refused. So too a disorder of the mind which makes a witness' testimony unreliable is a fair subject for exploration. ....

The Standard of Proof – Beyond a Reasonable Doubt

[131] In R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320 (SCC), the Supreme Court of Canada described the difference between the “balance of probabilities” standard of proof and “beyond a reasonable doubt” at paras 30 to 32:

It follows that it is certainly not essential to instruct jurors that a reasonable doubt is a doubt for which a reason can be supplied. To do so may unnecessarily complicate the task of the jury. It will suffice to instruct the jury that a reasonable doubt is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence.

It will be helpful in defining the term to explain to jurors those elements that should not be taken into consideration. They should be instructed that a reasonable doubt cannot be based on sympathy or prejudice. Further they should be told that a reasonable doubt must not be imaginary or frivolous. As well they must be advised that the Crown is not required to prove its case to an absolute certainty since such an unrealistically high standard could seldom be achieved.

Members of the jury panel may have heard of the "balance of probabilities" or sat on a civil case and been instructed as to the standard used in those cases. It is important that jurors be told that they are not to apply that standard in the context of the criminal trial. They should be told that proof establishing a probability of guilt is not sufficient to establish guilt beyond a reasonable doubt. The instructions explaining what the standard is not will help jurors to understand what it is.

ANALYSIS

[132] Given the interwoven nature of the evidence, I will examine the evidence that points to Mr. Marttinen’s alleged guilt and will analyze the credibility and reliability of the witnesses giving that evidence.

The Three Key Prongs of Mr. Leonard’s Evidence

[133] Mr. Leonard gave three pieces of evidence that are crucial to my analysis:

a. Mr. Leonard testified that Mr. Marttinen had a habit stating that he would blow places up and/or making similar threats. This evidence was corroborated by the Houles;

b. Mr. Leonard testified that he heard Mr. Marttinen in the kitchen prior to the fire; and

c. Mr. Leonard testified that, after feeling the heat coming from his doorknob hole, he heard and saw Mr. Marttinen outside the house, muttering to himself about windows.

[134] Some general statements must be first made about Mr. Leonard. Mr. Leonard comes to court with 93 entries upon his criminal record including convictions for robbery, fraud, disobey court order and failure to attend court. This fact alone demands that the court take considerable caution when looking at Mr. Leonard’s credibility.

[135] Further, Mr. Leonard testified that he suffers from a mental health condition whereby he hears voices. He indicated that the voices make it “hard for him to decide what’s real” and that when he hears said voices, “they lock me up”. As such, Mr. Leonard’s recitation of what any person said must be considered with extreme caution.

[136] Mr. Leonard also had material inconsistencies in his testimony about whether he spoke with Ms. Daigle on the night in question. This fact causes me to have concerns about Mr. Leonard’s reliability.

[137] Nonetheless, Mr. Leonard does not appear to have any animus towards Mr. Marttinen. Mr. Leonard indicated that he thought Mr. Marttinen was a “good guy”. Mr. Leonard was not cross-examined on this point and his demeanor in the witness box gave me no reason to suspect that Mr. Leonard was less than forthright. Accordingly, I accept that Mr. Leonard liked Mr. Marttinen and that Mr. Leonard did not testify with the intention of doing harm to Mr. Marttinen. In light of the concerns raised in the preceding three paragraphs, however, I cannot accept Mr. Leonard’s testimony on important points unless there is a persuasive reason so to do.

[138] The first important piece of evidence to consider is Mr. Leonard’s testimony regarding Mr. Marttinen’s habit of making statements about setting fire to places and the like. I first take into account the fact that several witnesses testified that the rooming house was not necessarily a secure abode in that many tenants had criminal records and suffered from mental health issues. It would therefore not surprise me that the occasional threat was made in the rooming house. It would also not surprise me that a witness would forget about a single threat or could misinterpret a specific statement given the number of threats that were undoubtedly uttered in the rooming house. By way of example, a threat to blow something up made during a church sermon would be something that a person would remember in detail. By way of contrast, a single threat made in a rooming house where a number of tenants had criminal records and mental health concerns may get lost in the shuffle.

[139] Even within this context, Mr. Leonard testified that Mr. Marttinen engaged in a noteworthy pattern of behavior. It makes sense that even a witness with Mr. Leonard’s frailties would recall and be able to recount Mr. Marttinen’s pattern of uttering threats.

[140] Mr. Leonard’s evidence on this point was corroborated by the Houles’ preliminary hearing evidence. Again, it needs to be noted that the Houles did not attend court, are of no fixed address and that Mr. Houle is currently wanted by police on outstanding charges. Further, the Houles did not attend at the preliminary hearing despite being served with subpoenas. They had to be brought to court pursuant to material witness warrants. These facts cause me concern about the Houles’ credibility. Further, Ms. Houle’s demeanor at the preliminary hearing is noteworthy as she seemed to become hysterical at certain points in her evidence. Her demeanour raises questions about her ability to recount events accurately. Finally, it goes without saying that since the Houles did not testify before me, I am not able to assess the full breadth and depth of their credibility and reliability. The cumulative effect of these phenomena are such that the Houles’ evidence must be viewed with considerable caution.

[141] Even discounting the value of the Houles’ evidence, it is clear to me that their evidence as regards Mr. Marttinen’s pattern of saying that he would “blow up” locations corroborates Mr. Leonard’s evidence in a meaningful way. I consider the fact that the evidence in question is about a pattern of conduct which is something that is, by definition, more likely to be recounted with some level of accuracy. I equally have no evidence before me that the Houles had any animus towards Mr. Marttinen such that I ought to have concerns about the credibility of their testimony on this point.

[142] Accordingly, while the evidentiary value of Mr. Leonard’s testimony is limited as is the value of both Ms. Houle’s and Mr. Houle’s evidence, I nonetheless accept that Mr. Marttinen made statements that he would “blow up” the rooming house, or other locations. This is the kind of evidence that witnesses will be able to recall even in rooming house situations where threats may be common. I have no reason to discount the credibility or reliability of these three individuals on this point beyond the general concerns outlined above.

[143] A different analysis must be undertaken with respect to Mr. Leonard’s evidence that he heard Mr. Marttinen in the kitchen prior to the fire. As noted earlier, Mr. Leonard hears voices and has a hard time distinguishing as between reality and audible fantasy. Also, Mr. Leonard was watching movies during the course of the evening which could easily have caused him to be distracted by sounds coming from his computer. Because of these issues, I cannot find that Mr. Leonard in fact heard Mr. Marttinen in the kitchen. There is no corroboration for same. Given Mr. Leonard’s mental health issue and its impact upon his ability to understand reality, I cannot accept Mr. Leonard’s evidence about Mr. Marttinen’s voice in the kitchen. This evidence is simply too unreliable.

[144] Finally, I accept Mr. Leonard’s evidence that he saw Mr. Marttinen outside the house and that Mr. Marttinen was muttering to himself about “windows” or the like. Mr. Leonard was able to see Mr. Marttinen. I have no evidence that Mr. Leonard’s mental health concerns affected his sight. As regards Mr. Marttinen’s muttering, Mr. Leonard undoubtedly realized that Mr. Marttinen’s voice was not in his head as a result of seeing Mr. Marttinen outside the house. The concern regarding Mr. Leonard’s ability to understand reality is therefore negated. Accordingly, I accept Mr. Leonard’s evidence on this point despite my general concerns with respect to both the credibility and reliability of his evidence.

The West Side Confession

[145] Defence counsel submitted that I ought to find that the West Side Confession did not occur because Ms. Flamand’s and Mr. Kearns’ evidence lacked credibility and/or reliability. For example, Ms. Flamand indicated that the West Side Confession occurred around midnight whereas it was clear that the fire department was called shortly before 3:00 a.m. Ergo, the West Side Confession would have occurred within minutes of sirens passing by the West Side Café or around 3:00 a.m. It was submitted that this discrepancy ought to cause me concern. I disagree with that submission. Ms. Flamand gave police a statement two weeks after the fire. Given this lapse in time, it is unsurprising to me that a witness like Ms. Flamand would mistake the exact time she witnessed an event. This is especially true of late-night hours where individuals can easily mistake midnight for an early morning hour. In short, this error is of no moment.

[146] I also accept that while Ms. Flamand has a criminal record that contains a number of entries for breaching court orders, it does not have any entries for crimes of dishonesty. Accordingly, her record discloses no reason to believe that she would intentionally mislead the court.

[147] Defence counsel also attacked Ms. Flamand’s testimony by suggesting that her evidence was contaminated by conversations that she had with Ms. Tracy Daigle, the witness that testified in the trial. This concern is negated by the fact that Ms. Flamand ultimately made clear that she spoke with Ms. Tricia Daigle, who is another person. Ms. Flamand was able to identify Ms. Tricia Daigle because she dated this person’s son. Ms. Flamand ultimately recalled that she knew Ms. Tracy Daigle’s identity and Ms. Flamand confirmed that Ms. Tracy Daigle and Ms. Tricia Daigle are different people. Accordingly, there is no concern that Ms. Flamand’s testimony was tainted by any conversation with Ms. Tracy Daigle, the witness.

[148] Of some concern, however, is the fact that Ms. Flamand appeared to be uncertain as to the identities of Ms. Tricia Daigle and Ms. Tracy Daigle. Ms. Tricia Daigle was Ms. Flamand’s friend. In fact, Ms. Flamand dated Ms. Tricia Daigle’s son a long time ago. One would imagine that this level of familiarity would be such that Ms. Flamand would have no problem distinguishing between the two Daigles. I recognize that courtrooms are unusual places and can cause witnesses to innocently fumble their testimony. With that said, Ms. Flamand has a criminal record and has undoubtedly spent time in a courtroom before. Further, Ms. Flamand gave the distinct impression that she was not flustered by the courtroom and that she legitimately could not distinguish as between Ms. Tricia Daigle and Ms. Tracy Daigle. She gave no explanation for this confusion. Her uncertainty causes me to question the reliability of her testimony.

[149] Equally, Ms. Flamand testified in-chief that she did not tell anyone about what had happened on the night in question. Later in examination-in-chief and in cross-examination, Ms. Flamand testified that her mother had told her that Mr. Agawa had passed away. Ms. Flamand also testified in cross-examination that she had had some conversations with people in the community but did not know when these conversations occurred. Accordingly, Ms. Flamand’s evidence may have been inadvertently been affected by her discussions with people in the community.

[150] Even factoring in the concerns about Ms. Flamand’s reliability outlined in the previous two paragraphs, I have little reason to doubt Ms. Flamand’s recollection of the events of June 17, 2019. Ms. Flamand was specific about what the passing individual stated, and she had a clear recollection of who was present and what they were doing. She was not pressed on these recollections and I was left with the distinct impression that Ms. Flamand was a witness who recalled the specifics of what was said by the man passing by the West Side Café. This makes especial sense since the subsequent fire alarms and fire trucks would have underscored the importance of the confessor’s statement. As such, and even accounting for my concerns described in the preceding two paragraphs, I have confidence that Ms. Flamand accurately recollected that which was stated by the man. I also take comfort in the fact that Mr. Kearns had a similar recollection of the man’s statement.

[151] With respect to Ms. Flamand’s identification of the man walking past the West Side Café, this is classic in-dock identification. Further, Ms. Flamand testified that the man in question was wearing a hoodie, which is a sweatshirt with a hood. The video from the Tim Horton’s taken shortly after the fire shows that Mr. Marttinen was wearing a dark shirt with no hood. While some time had passed and Mr. Marttinen may have changed clothing, this inconsistency negates any weight to be given to Ms. Flamand’s in-dock identification.

[152] Therefore, I am satisfied that a man passed by the West Side Café on the night of June 17, 2019. I also accept that the man stated, “I just lit the church on fire”. I make this finding because:

a. Ms. Flamand’s evidence was unequivocal with respect to what the man said;

b. Ms. Flamand was not particularly cross-examined on this point;

c. The night was clear and, as such, there were no sounds of rain or other inclement weather to muffle the man’s statements;

d. Ms. Flamand was relatively close to the man when he made this statement;

e. The importance of the statement was undoubtedly etched in her mind by the sirens she heard shortly after the interaction; and

f. Her evidence on the point was corroborated by Mr. Kearn’s testimony.

[153] As for Mr. Kearns’ evidence, his version of events was largely corroborated by Ms. Flamand’s testimony. Mr. Kearns recalled being with Ms. Flamand at the West Side Café with a third party. He recalled a man walking past the restaurant. He recalled a fire supervisor’s vehicles passing by, which fact was corroborated by Mr. Scott’s testimony that a supervisor was on scene attending to the blaze. Mr. Kearns testified that he is hard of hearing and, as a result, he could not make out precisely what the man said as he passed the West Side Café although Mr. Kearns testified that it had to do with setting a church on fire. These similarities as between Ms. Flamand’s evidence and Mr. Kearns’ testimony support a conclusion that Mr. Kearns is a credible and reliable witness.

[154] With respect to the identity of the confessor, Mr. Kearns identified Mr. Marttinen. He knew Mr. Marttinen from his stay in the psychiatric ward at the hospital. He had spoken with Mr. Marttinen on a few occasions and had given Mr. Marttinen cigarettes at one point during that stay. Mr. Kearns was therefore confident of his identification. Defence counsel indicated that Mr. Kearns’ admission that he suffers from mental health issues means that Mr. Kearns’ evidence is not trustworthy. I disagree with that statement for the reasons given in R. v. Perrone as Mr. Kearns did not specify the nature of his mental illness. Accordingly, I dismiss the submission made by the defence in this regard.

[155] Nonetheless, and despite the apparent reliability of Mr. Kearns’ testimony, Mr. Kearns’ evidence has two crucial points of concern. First, Mr. Kearns testified that he followed Mr. Marttinen and asked Mr. Marttinen about the West Side Confession whereupon the latter pulled a knife. Ms. Flamand testified that, after the West Side Confession, she and Mr. Kearns re-entered the West Side Café to get their food. She testified that the pair then went about their evening. She did not indicate that Mr. Kearns followed Mr. Marttinen. This is a material inconsistency in the evidence. This is not the kind of inconsistency that people can innocently mistake. Pulling a knife is a major event and would undoubtedly be recalled by a witness. Equally, and despite the Crown’s able submission that Mr. Kearns’ and Ms. Flamand’s evidence is not necessarily inconsistent, if Mr. Kearns had hopped on his bicycle to follow Mr. Marttinen, Ms. Flamand surely would have remembered same.

[156] Secondly, Mr. Kearns testified that he followed Mr. Marttinen because he wanted more information about the incident. In cross-examination, Mr. Kearns testified that he knew that he would speak with police so he wanted more information from Tom. If that were the case, I question why Mr. Kearns did not go to the police shortly after the event. Indeed, the police sought out Mr. Kearns two weeks after the event because the police conducted social media searches. This evidence therefore makes no sense and Mr. Kearns was not asked to justify this inconsistency. I must view Mr. Kearns’ evidence with some caution as a result.

[157] Given both the strengths and weaknesses of Mr. Kearns’ evidence, I accept that the man who gave the West Side Confession was likely Mr. Marttinen. Mr. Kearns’ identification is based upon an extended knowledge of Mr. Marttinen and Mr. Kearns gave me no reason to believe that he had a negative animus towards Mr. Marttinen. He is therefore reasonably credible. Also, as will be seen below, I find that Mr. Marttinen likely confessed to Ms. Tracy Daigle. The Daigle Confession corroborates Mr. Kearns’ identification of Mr. Marttinen given the remote odds that two different people would confess in these circumstances.

[158] Nonetheless, Mr. Kearns’ evidence that he followed the confessor is of concern. Equally, Ms. Flamand’s evidence that the confessor was wearing a hoodie is contrasted by the Tim Horton’s video of Mr. Marttinen taken a few hours later. When I factor in all of the aforementioned information, I am comfortable that Mr. Marttinen was probably the person who passed the West Side Café on the night of June 17, 2019 but I am not convinced of that fact beyond a reasonable doubt since the evidence proving identification has notable frailties.

The Daigle Confession

[159] Ms. Daigle’s evidence has significant issues that cause me considerable concern. Her demeanor in the witness box made it clear that she suffers from significant mental health issues. She admitted as much in her testimony when she indicated that she has been diagnosed as being schizophrenic but takes no medication. She hears voices. Her assertions about the internet, her premonitions regarding historical events, her belief that she is a CIA agent and her non-stop ramblings all combined to give me tremendous concern with respect to her general reliability. In all, Ms. Daigle’s grasp of reality appeared tenuous.

[160] I also note that Ms. Daigle is exceptionally hard of hearing. Given the ongoing COVID pandemic, the courtroom in which the matter was heard had plexiglass encasings. Witnesses and counsel attempted to wear masks. Ms. Daigle could not understand anything that was being said and the proceedings were moved to a smaller courtroom to take advantage of better acoustics. Even with the smaller courtroom, counsel had to shout and speak slowly so that Ms. Daigle could read lips. I was left with the impression that Ms. Daigle’s ability to understand anything said was incredibly defective.

[161] Despite these concerns, the Crown rightly pointed out that Ms. Daigle is an accurate historian whose evidence was corroborated in material ways. The Tim Horton’s video clearly demonstrates that Ms. Daigle met with Mr. Marttinen the morning after the fire. Ms. Daigle testified that had she wanted a coffee and Mr. Marttinen was seen in the video with a coffee in his hand. Ms. Daigle testified that she saw Mr. Marttinen in a construction jacket while police witnesses confirmed that Mr. Marttinen wore such a coat. Ms. Daigle testified that Mr. Marttinen lived in apartment number three, which fact was corroborated by other witnesses and the fact that police located Mr. Marttinen’s papers in that apartment.

[162] Further, the Crown submitted that Mr. Marttinen’s confession to Ms. Daigle specified the source of ignition, that is the use of gasoline and match. The Crown submitted that this knowledge would only have been known by the person that set the fire and the possibility that Ms. Daigle was mistaken that Mr. Marttinen admitted to such a specific fact is highly unlikely.

[163] The Crown also submitted that Ms. Daigle’s evidence regarding the Daigle Confession was corroborated by the West Side Confession. This is an important factor because there is no evidence that Ms. Daigle knew Mr. Kearns or Ms. Flamand.

[164] Despite the Crown’s able submissions, I have concerns about Ms. Daigle’s evidence. For example, Mr. Leonard testified that the tenants from the rooming house discussed the fire while at the Day’s Inn. This fact was corroborated by the Houles. As such, tenants undoubtedly discussed how the fire was set, whether it was arson and other such possibilities. Mr. Leonard testified that Ms. Daigle was present at the Day’s Inn during said discussions. Ms. Daigle would thus have been privy to the suppositions made by the tenants.

[165] Also, the source of ignition described by Ms. Daigle is not particularly unusual. Television shows and movies are replete with instances where criminals attempt to set fire to buildings, other objects or even people by dousing them with gasoline and lighting a match. As such, it would not surprise me that a well-meaning witness who knew about an alleged arson would automatically infer that a hypothetical fire was started with gasoline and a match. Indeed, since the jerry can was observed by the tenants at the scene, there is a reasonable possibility that the use of gasoline as an accelerant was discussed at the Day’s Inn. Again, Ms. Daigle appears to have been at the Day’s Inn while said discussions occurred.

[166] Given all of these considerations, the reasonable possibility exists that Ms. Daigle heard Mr. Marttinen discussing the fire and innocently “filled in the blanks” believing that he confessed to dousing the church in gasoline and lighting a match. Her mental health, terrible hearing and her conversations with rooming house tenants immediately after the fire are concerns that could easily lead to such a possibility. Also, Mr. Marttinen’s propensity for making reference to “blowing things up” adds to the possibility that Ms. Daigle misheard Mr. Marttinen as the latter made a statement similar to those he had made in the past.

[167] Therefore, when I consider the strengths and weaknesses associated with Ms. Daigle’s evidence, I agree with the Crown that Mr. Marttinen probably confessed to Ms. Daigle that he set the fire in question. While Ms. Daigle’s evidence is highly problematic, the corroboration offered by the Tim Horton’s videos makes me certain that Ms. Daigle met with Mr. Marttinen on the morning in question. Further, Ms. Daigle’s knowledge of the source of ignition coupled with the corroboration offered by the West Side Confession[^10] proves that Mr. Marttinen likely told Ms. Daigle that he doused the rooming house in gas and dropped a match. Nonetheless, I cannot accept this evidence beyond reasonable doubt given the obvious weakness of Ms. Daigle’s evidence.

Mr. Eric Richer

[168] Mr. Richer has a considerable criminal record that features convictions for break and enter, disguise with intent, use of an imitation firearm during the commission of an indictable offence, obstruct police officer and other offences. Accordingly, Mr. Richer’s record creates an immediate concern about his credibility.

[169] Of further note, Mr. Richer lied to police about his girlfriend’s presence in his bedroom on the night of the fire. This fact also raises credibility concerns.

[170] The combined effect of these two factors are such that Mr. Richer’s evidence on any issue is not worthy of belief absent corroboration or another powerful reason to accept same.

[171] Mr. Marttinen submits that Mr. Richer is an alternate suspect in the matter. For example, Mr. Marttinen submits that Mr. Richer was motivated to seek revenge against the landlord. To that effect, Mr. Richer testified that he had purchased a golf cart and that it was stolen from the rooming house shortly after he purchased it. This theft occurred a short while before the fire. This evidence gave Mr. Richer a motive for revenge.

[172] Defence counsel also put to Mr. Richer that Mr. Richer was in the process of being evicted prior to the fire. Mr. Richer denied this fact and the landlord was not called as a witness. I make no finding on this point as a result. With that said, however, Mr. Richer was evasive on this point. Mr. Richer admitted that he was ultimately thrown out of the rooming house and that a confrontation of sorts occurred with the landlord. This evidence suggests that Mr. Richer may not have been entirely forthright when describing his relationship with the landlord prior to the fire.

[173] Mr. Richer was also the only person who claimed to see the unknown Indigenous woman on the driveway after the fire. This unknown woman allegedly claimed that Mr. Gingras set the fire. This evidence strikes me as odd since:

(a) Presumably another witness would have seen this unknown Indigenous woman had she been at the driveway;

(b) The only way this woman would have known that Mr. Gingras started the fire was if she was an eye-witness to same or if Mr. Gingras confessed to her;

(c) Assuming that she witnessed the setting of the fire by Mr. Gingras, why would she blurt out the perpetrator’s name; and

(d) Assuming Mr. Gingras confessed to the Indigenous woman, why would Mr. Gingras have done so?

[174] Mr. Richer also testified that he re-entered the building when it was already ablaze to ensure that other tenants escaped safely. This was either an act of incredible heroism or was an act of an individual whose actions (i.e. setting the fire) went beyond his intentions and endangered the lives of others. Mr. Marttinen argues that Mr. Richer was thus beset with guilt and went back into the building to ensure that no one was hurt by his actions. Mr. Richer may well be capable of such heroism, however, given the other facts described in this section of my reasons, Mr. Richer’s actions could easily be informed by motives other than courage and audacity.

[175] In total, therefore, Mr. Richer appears to have had motive to seek revenge as against his landlord as a result of the golf car dispute and possibly a tenancy dispute. Mr. Richer’s testimony about the unknown Indigenous woman is highly suspicious and his re-entry into the rooming house can be interpreted as the act of someone with a guilty conscience. Mr. Richer is therefore a reasonable alternate suspect.

The Final Analysis

[176] When I examine the evidence as a whole, I am left in a state of reasonable doubt that Mr. Marttinen started the fire. As noted above, I accept that Mr. Marttinen probably gave both the Daigle Confession and the West Side Confession, but I am not certain in that regard. Although I have some misgivings about the evidence given by Ms. Daigle, Ms. Flamand and Mr. Kearns, the fact that Ms. Daigle does not know Mr. Kearns or Ms. Flamand suggests that Mr. Marttinen probably confessed to starting the fire on two separate occasions. Normally, this fact would be powerful evidence that Mr. Marttinen in fact committed arson and therefore manslaughter.

[177] In the case before me, however, it must be noted that Mr. Marttinen often made bold statements about burning down or blowing up locations. I have no evidence that he ever followed up on these threats. In fact, witnesses dismissed Mr. Marttinen’s statements of this kind because he was, in their opinion, prone to these forms of exaggeration. It is possible, therefore, that Mr. Marttinen stated that he burned down the rooming house without having done so.

[178] When I take this fact into consideration along with the evidential frailties associated with both the Daigle Confession and the West Side Confession, I cannot find beyond a reasonable doubt that Mr. Marttinen started the fire. Specifically, I have a reasonable doubt that:

a. Someone other than Mr. Marttinen uttered the West Side Confession;

b. Mr. Marttinen did not, in fact, confess to Ms. Daigle but instead said something that Ms. Daigle mistook as a confession given Mr. Marttinen’s propensity to threaten to blow up locations; and/or

c. Mr. Marttinen uttered one or both confessions but, like previous instances where Mr. Marttinen exaggerated his intentions, Mr. Marttinen did not in fact set the fire.

[179] These concerns are heightened by Mr. Richer’s suspicious evidence which gives plausible weight to an alternate suspect theory. Put another way, my concerns with the West Side Confession and the Daigle Confession are such that I have a reasonable doubt that Mr. Richer may have set the fire.

[180] Had I not found Mr. Richer’s evidence highly suspicious and/or had I been able to accept Mr. Leonard’s evidence regarding Mr. Marttinen’s voice in the kitchen, I may have drawn a different conclusion in this matter. As noted earlier in these reasons, Mr. Richer’s evidence was highly suspicious, and Mr. Leonard’s evidence was unreliable on this point. Therefore, while I believe that Mr. Marttinen probably started the fire and caused Mr. Agawa’s death, I have a reasonable doubt in that regard.

[181] I must acquit Mr. Marttinen on the charges before the court.

CONCLUSION

[182] Mr. Marttinen is hereby found not guilty on both arson endanger life pursuant to s. 434.1 of the Criminal Code of Canada and not guilty of manslaughter pursuant to s. 234 of the Criminal Code of Canada.

Varpio J.

Released: October 27, 2021

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

THOMAS MARTTINEN

REASONS FOR JUDGMENT

Varpio J.

Released: October 27, 2021

[^1]: The rooming house was a converted church. [^2]: I take judicial notice of the fact that a local public library branch is a short distance from the Tim Horton’s on Queen Street. [^3]: No specific description of the second-floor hallway was provided to the court. From Mr. Richer’s testimony, I infer that there was a doorway in the second-floor hallway near the bathroom. I also infer that said doorway was to the front of the building, close to the stairs that led to the first-floor foyer area. [^4]: Benjamin’s Jewelers is located at the corner of Queen Street and Tancred Street. It is less than a 500 m walk from the West Side Café. [^5]: Note that the witness in this trial was named Ms. Tracy Daigle, as opposed to Ms. Tricia Daigle. [^6]: Taggert Street is to the west of Jamestown. Jamestown is the area of Sault Ste. Marie where the rooming house is located. [^7]: It was rightfully conceded by the Crown this this was a classic example of “in-dock identification”. [^8]: From the entirety of her testimony, I take “the community” to mean the “Jamestown community”. [^9]: I take judicial notice of the fact that a “hoodie” is a sweatshirt with a hood. [^10]: My analysis on this point discounts the evidential value of the West Side Confession as described in paragraphs 144 to 157 above.