SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

v.

JENNIFER CASTILLO

REASONS FOR RULING

OF THE HONOURABLE JUSTICE J. McCARTHY

On April 4, 2023, at OSHAWA, Ontario

APPEARANCES:

P. Affleck Counsel for the Crown E. Fennell Counsel for Jennifer Castillo

TUESDAY, APRIL 4, 2023

R E A S O N S F O R R U L I N G

McCARTHY J. (Orally):

The Charges

Jennifer Castillo stands charged with two counts arising from a fire which took place at 960 Olive Avenue, in the City of Oshawa, referred to as “960 Olive”, in the early morning hours of December the 30th, 2020. Those counts before the court are:

1. That she intentionally or recklessly caused the fire, contrary to s. 434 of the Criminal Code, (ie committed arson); and

2. That she wilfully caused damage to 960 Olive exceeding $5,000, contrary to s. 430 of the Criminal Code.

Background

The evidence at trial establishes the following background. 960 Olive was jointly owned by Maheswaran Ponnampalam (MP) and Rathina Maheswaran. They are jointly referred to as the “landlords”.

Jennifer Castillo was a tenant of the landlords at the time of the fire, having occupied the basement apartment unit, (referred to as the “basement unit”) at 960 Olive since approximately June of 2018. There was also an upper unit at 960 Olive which was vacant and undergoing renovations at the time of the fire.

In October 2020, Jennifer Castillo failed to pay the monthly rent prompting the landlords to serve her with notices and apply to the Landlord and Tenant Board for relief.

Between 12:30 a.m. and 1:00 a.m. on December the 30th, 2020, witness Joshua Thompson (referred to as “Thompson”) encountered Jennifer Castillo in a Tim Horton’s parking lot at Wilson Street and King Street in Oshawa. Thompson had seen her there on previous occasions. Jennifer Castillo seemed scared and upset to him. He stated that she was not safe at home. Jennifer Castillo sought Thompson’s assistance to provide her with a ride to a women’s shelter.

Jennifer Castillo entered Thompson’s jeep at approximately 1:00 a.m. The pair drove around for some time. Thompson then drove Jennifer Castillo to 960 Olive to pick up a change of clothes. Security camera video located inside the upper unit at 960 Olive captured Thompson’s jeep pulling into the driveway at approximately 2:46 a.m. on December the 30th, 2020.

According to Thompson, Jennifer Castillo exited the passenger side door and proceeded on foot to the back of the dwelling where the entrance to the basement unit was located. Thompson waited in the jeep. Jennifer Castillo emerged approximately 19 minutes later and re-entered the passenger side of the jeep. She had changed her clothes and had a purse-like bag with her. Her demeanor was calm. She gave no impression that she was in a hurry to depart. The same security camera video showed Thompson’s jeep backing out of the 960 Olive driveway at 3:05 a.m. Thompson then drove Jennifer Castillo to the women’s shelter.

The security camera video captured the faint sound of beeping beginning at approximately 3:07 a.m. The same camera then captured a loud shrill alarm going off at approximately 3:44 a.m.

The landlords received notice of the fire at approximately 7:00 a.m. via an app on their cell phone. City of Oshawa firefighters were dispatched to 960 Olive shortly thereafter. Among them was Greg Petrie, who testified that he arrived at the scene while the smoke alarms were still activated. Petrie made his way to the basement unit and discovered what he described as a small smoldering fire in its final stages centered on what looked like a pile of clothing or garbage on the floor in or near the kitchen.

City of Oshawa fire prevention investigator Paul Hunt was called to 960 Olive where he arrived at approximately 8:20 a.m. He spoke with the landlords, gathered information, made observations, took photos, and conducted a cause and origin investigation before preparing a written report. In his report he concluded that the fire at 960 Olive appeared to have been intentionally set. Certified by the court to be qualified as an expert in fire cause and origin, he re-stated that opinion at trial.

The Law

In R. v. Tatton, 2015 SCC 33, [2015]2 S.C.R. 574, in para. 48 the Supreme Court of Canada set out the essential elements of the offence of arson:

The actus reus is the damaging of property by fire. The mental element is the intentional or reckless performance of the illegal act - the causing of damage to property. No additional knowledge or purpose is needed. No complex thought or reasoning processes are required. On its face, the level of intent required for the offence would appear to be minimal.

At para. 59 of Tatton, the Supreme Court provided guidance on how intent should be analysed.

In summary, the determinative question is not how the fire was started although the answer to that question may provide important context. An accused’s guilt under s. 434 hinges on whether he or she intentionally or recklessly caused damage to the property in question. So long as the trier of fact keeps this important distinction in mind and examines the relevant context and surrounding circumstances, the analysis of intent under s. 434 should be relatively straightforward.

In R. v. Kormendy, 2016 ONSC 6856, Bondy J. applied Tatton and stated as follows:

In order for me to find the accused guilty of arson causing property damage contrary to s. 434 of the Criminal Code, the Crown must prove each of the following elements of that offence beyond a reasonable doubt:

1. That the accused caused damage to property by fire or explosion;

2. That the accused caused the damage intentionally or recklessly; and

3. That the accused was not the only person who owned the property.

The third element of the offence is proven. Jennifer Castillo was not an owner of the property; she was a tenant of the basement unit.

1. Did Jennifer Castillo cause damage to the property by fire?

It is undisputed that that there was a fire in the basement unit at 960 Olive in the morning of December the 30th, 2020. The photographs tendered in evidence leave no doubt that char marks and soot deposits were left by the fire. Paul Hunt’s estimate of the damage to 960 Olive of $150,000 was an approximation but necessarily so in light of the summary nature of his investigation and report. His estimate was, in any event, uncontradicted and I accept it as reasonably accurate considering the extent of the damage that could be seen.

The evidence at trial as to how the fire was started was largely circumstantial. The issue with circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt; see R. v. Villaroman, 2016 SCC 33 at para. 35. Villaroman requires the trier of fact to consider other plausible theories and other reasonable possibilities which are inconsistent with guilt. These plausible theories or reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation; see para. 37 of Villaroman.

I agree with the Crown that the only reasonable inference to be drawn from all the evidence in the circumstances is that Jennifer Castillo started the fire. I heard no evidence that she was sharing the unit with somebody else. There was no other person residing at 960 Olive. There was no evidence that another person other than the landlords had access to the unit and certainly not on December the 29th or 30th, 2020. The security camera captures no other person attending at the premises during the time that the fire would have or could have been ignited.

I accept the evidence of Thompson that he agreed to bring Jennifer Castillo back to her residence ostensibly for her to collect an overnight bag before he would drop her at the shelter. Indeed, the video excerpts from the security camera inside the upper unit of 960 Olive support this evidence completely. Thompson’s jeep, in which Jennifer Castillo was undoubtedly the front seat passenger, pulls into the driveway of 960 Olive at 2:46 a.m. and is seen departing the driveway some 19 minutes later, at 3:05 a.m. While there was no footage showing Jennifer Castillo accessing the basement unit, logic dictates that she must have. Thompson stated that Jennifer Castillo made her way towards the back of the dwelling and then re-emerged wearing a change of clothes and toting a moderate size bag or purse. There would have been nowhere else for Jennifer Castillo to go during that 19-minute period, other than the basement unit. The irresistible inference is that she, and she alone, had the exclusive opportunity to start the fire.

The audio from the security camera video captured the distinct if faint sound of a smoke alarm at 3:07 a.m. That noise starts in the immediate aftermath of Jennifer Castillo’s attendance at and departure from the basement unit of 960 Olive. The higher pitch alarm which could only be from the upper unit smoke alarm sounds at 3:44 a.m.. This is entirely consistent with the smoke alarm being triggered in the upper unit since the smoke would have taken some time to make its way up from the basement unit.

No other person would have attended the lower unit, the basement unit, in the interval between Jennifer Castillo leaving 960 Olive in Thompson’s jeep and the time when the fire must have started. Had the fire already been burning when Jennifer Castillo entered into the basement unit, no doubt she would have discovered it. There is no evidence of that, nor is there any evidence to support the remote possibility that the fire, by some wild coincidence, started independently of Jennifer Castillo during the 21 minutes or so between her arrival at 960 Olive and the time the smoke alarm can first be heard at 3:07 a.m. Neither the evidence nor common sense can support such inferences. I find without a doubt that Jennifer Castillo would have had exclusive opportunity to cause the fire and that she did cause the fire. No other logical inference can be drawn from the surrounding circumstances and the Crown has proven this element of the offence beyond a reasonable doubt.

I move to the question of whether Jennifer Castillo started the fire intentionally or recklessly?

The question remains whether Jennifer Castillo intentionally or recklessly started the fire at 960 Olive. I find that she did. I have no doubt that the fire was started intentionally. I place great weight on the opinion of Paul Hunt in that regard. His evidence was entirely logical and compelling. There was no other ignition source for the fire. The origin of the fire could only have been the pile of debris pictured in the investigation photos which inexorably point to it being the epicentre of the fire. It was entirely logical and reasonable for Paul Hunt to rule out the presence of accidental ignition sources given the absence of electrical cords, heating devices or discarded cigarette butts in the vicinity.

I utterly reject the defence suggestion that the cause of the fire was a space heater plugged into a speaker on the shelving unit between the kitchen area and the living area and which somehow ignited the debris pile. This is simply not a plausible theory of how the fire started. Mr. Hunt testified that he found no evidence of any extension cords, power cords or items plugged into an electrical outlet near the origin of the fire. This led him to rule out any flow of electricity as a cause for the fire. In cross-examination, Paul Hunt explained that likely, a plug inserted into an outlet receptacle would have remained in place regardless of whether any plastic coating or cord might have melted away. While he entertained the notion of a plug becoming dislodged as possible, Mr. Hunt was also clear that he had never seen such a thing in over 20 years of fire investigation. This also stands to reason. I can fairly take judicial notice that plugs inserted into outlets do not simply fall out. Nor was there was any evidence that a fireman or investigator attending 960 Olive removed or disconnected a plugged-in heater.

As well, there was no evidence that the speaker identified in the photos even contained a receptacle capable of accommodating a plug from a space heater or any other electronically powered device. The cords hanging down from the back of the speaker could not have been the source of the fire as they were not plugged into an electric source. Certainly Vithuna, the daughter of the landlords who inspected the basement unit the day before the fire, does not recall seeing any space heater or anything plugged into the speaker on the shelving unit.

Therefore, the defence suggestion that an electrically powered space heater provides a plausible explanation for the fire cannot survive scrutiny. No person ever saw a space heater or anything plugged into the speaker. There was no extension cord found in the vicinity, there were no plugs found in any outlet. There is no compelling evidence that an outlet was available within the vicinity of the debris. The coils and wiring seen amidst the charred debris might have belonged to any number of devices including a space heater. More than likely, whatever that unidentified object was, it simply formed part of the pile of debris by design or by happenstance. It hardly matters. What is certain is that the defence theory that the space heater was the ignition source and therefore the cause and origin of the fire is simply too fantastic, too speculative, and too fanciful to be entertained.

A word about motive. Strictly speaking, motive is not an essential element of the offence. Indeed, the Supreme Court of Canada in Tatton made it clear that the mens rea element of the offence does not require any complex thought or reasoning process; yet it may form part of the surrounding circumstances. In the case at bar, on the one hand, it is difficult to infer any clear motive on the part of Jennifer Castillo. On the other hand, Thompson described Jennifer Castillo as being in an agitated and upset state. She was fearful for her own safety and that of her child. Indeed, the security camera recording the hours before the fire appear to capture Jennifer Castillo embroiled in a dispute with a person believed to be her boyfriend.

We know that she was overdue on October rent, that she was involved in possible eviction proceedings before the Landlord and Tenant Board, and that the piles of personal belongings in the basement unit and at the back of Olive Avenue were consistent with a person who was preparing to move out. There was evidence that she had been involved in a dispute with a former upper unit tenant over garbage.

None of this evidence could establish any motive to commit arson beyond a reasonable doubt. Nonetheless, viewed as a whole and in context, this evidence tends to show that on the date of the fire, Jennifer Castillo was in a highly volatile and agitated state, concerned about her personal safety, dealing with financial challenges, and facing possible eviction. It is fair to say that none of this would be inconsistent with having a motive or a mindset to start a fire.

Motive aside, logic and common sense leave me to draw the irresistible conclusion that Jennifer Castillo intentionally or recklessly started the fire on the date in question. There is no other explanation for the fire, accidental or otherwise. The evidence points towards Jennifer Castillo as having set the fire and having done so intentionally or recklessly. That evidence points nowhere else. I find beyond a reasonable doubt that the Crown has proven this element of the offence.

Summary of Findings and Inferences

In summary, Jennifer Castillo was the only adult tenant occupying the basement unit at 960 Olive on December the 30th, 2020. She was the subject of landlord/tenant proceedings at the time of the fire, which may have resulted in an eviction. The various piles of clothing and personal items in the unit and at the back of the dwelling suggest that Jennifer Castillo was preparing to move out. Jennifer Castillo was in an agitated and fearful state when she was delivered to the unit by Thompson. Jennifer Castillo entered the basement unit alone and was there for 19 minutes. This constituted plenty of time to start a fire. The smoke alarm can be heard within minutes of her departure from 960 Olive. A high-pitched alarm is distinctly heard within 40 minutes of her departure. There is no evidence that any other person entered the basement unit or would have had any reasonable opportunity to do so during the time that the fire would have been started. The evidence of Paul Hunt is highly reliable. There was no ignition source at the origin of the fire, no electrical flow, no cords, no cigarette butts. The defence’s wildly speculative theory of a space heater being the ignition source of the fire does not qualify as plausible. There is no other basis upon which to postulate that the fire was an accident or was unintentional. The entirety of the evidence, circumstantial as it is, can support only one reasonable inference and that is that Jennifer Castillo intentionally or recklessly caused the fire at 960 Olive in the early morning hours of December the 30th, 2020, thereby causing damage to property in excess of $5,000.

Disposition

In light of my findings and conclusions there shall be a finding of guilt against Jennifer Castillo, and a conviction entered on both charges on the indictment.

M A T T E R A D J O U R N E D

FORM 2

CERTIFICATE OF TRANSCRIPT (SUB-SECTION 5(2)) Evidence Act

I, Monica Mayer, certify that this document is a true and accurate transcript of the recording of R. v. Jennifer Castillo in the Superior Court of Justice, held at OSHAWA, Ontario, on April 4, 2023, taken from Recording No. 2812-206-20230404-101154-10-MCCARTJOH, which has been certified in Form 1.

April 30, 2023 Monica Mayer ACT Id No. 7109082155 Ontario, Canada

A certificate in Form 2 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate.