ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
Alexander Belchior
Defendant
Suzanne Johnson, for the Crown
Michael Peterson, for the Defendant
HEARD: September 25, 26, 27, 29, 2023
REASONS FOR JUDGMENT
Overview
1Alexander Belchior is charged with four counts of arson pursuant to section 434 of the Criminal Code of Canada, one count of arson seriously threatening another person or property pursuant to section 434.1 of the Criminal Code, one count of arson for a fraudulent purpose pursuant to section 435(1) of the Criminal Code, and one count of public mischief pursuant to section 140(2) of the Criminal Code.
2The charges stem from a fire which occurred at approximately 2:34 a.m. on January 11, 2021, at 113 Cushman Road, St. Catharines and the subsequent investigation. The evidence indicates that several vehicles and the adjacent building were damaged including a Dodge Ram truck, a white Mercedes sedan, a grey or silver Ford sedan, a white Budget rental van, and a blue sedan. Food For Kids operated out of the adjacent building.
3The Crown advises that the blue sedan is not the subject of any of the charges and that the three charges under section 434 which refer to a motor vehicle, relate to damage to the white Mercedes, the Ford sedan, and the Budget rental van. Count five, as stated in the charge, relates to the property at 21-113 Cushman Avenue.
4Mr. Belchior was arrested on January 28, 2021. The Crown alleges it was Mr. Belchior who set the fire. Mr. Belchior says the Crown has not met its burden of establishing his guilt beyond a reasonable doubt.
5In submissions, the Crown conceded there is insufficient evidence to support a conviction on the charge of public mischief pursuant to section 140(2) of the Criminal Code and requested a finding of not guilty on this charge. I agree and find Mr. Belchior not guilty on count six.
The Fire, the Investigation and the Videos
6Detective Constable Maggiolo and Detective Prinsen were called to 113 Cushman Road at approximately 6:30 a.m. on January 11, 2021. Det. Const. Maggiolo recalls the fire department still being present. Det. Prinsen does not.
7A series of 35 photographs were entered as Exhibit 8 which depict the vehicles and the adjacent building. Det. Prinsen did not take the photos but testified that the photos depict the vehicles, building and damage that he saw when he attended at the scene at 6:30 a.m.
8Det. Prinsen observed the vehicles a few hours after the fire. He testified that the Ram truck, white Mercedes and the Ford sedan were significantly damaged by the fire. He observed that the window in the Food For Kids building was broken.
9No direct evidence was led as to the ownership of the white Mercedes, Ford sedan, Budget rental van and adjacent building. Det. Const. Maggiolo attempted to but did not contact the owners of the other vehicles and businesses.
10The officers reviewed surveillance video from a business across the parking lot from the fire. The video, marked as Exhibit 5, shows the area of the fire in the upper right hand corner of the video (the “Cushman Video”). The Cushman Video depicts the vehicles and the fire. The video does not disclose the identity of the person who set the fire.
11The individual in the Cushman Video first appears from the right of the screen carrying an object in hand. The individual stops at the front of the truck and bends down. The individual then walks past the truck to the top left hand corner of the screen past other vehicles and shortly thereafter returns to the front of the truck, appears to bend down slightly and then moves to the passenger side of the truck. The individual then appears to bang on the front passenger side window of the truck several times, then is seen bending down and standing up and doing something at the front passenger side door of the truck four or five times. The individual then appears to light something as there are two or three small flickers of light. The individual leans in toward the truck, takes a quick step back, and then leans in again after which there is a flash and an explosion of light and the individual runs away from the truck and off camera. The flash and explosion of light on the Cushman Video occurs at 2:34:44 a.m., after which the truck appears to be on fire.
12It initially appears that the individual in the Cushman Video is wearing dark pants, a slightly lighter jacket or sweater and perhaps a black hat or has dark hair. When the individual is running away from the truck after the flash, the colour of the person’s clothing appears different. At points, it appears all dark, at other times the pants appear light in colour and the jacket or sweater appears dark. I take from the video that the colour of objects in the video may not be representative of their actual colour.
13A search of the licence plate affixed to the burned Ram truck disclosed the owner was Alex Belchior with a date of birth of June 15, 1997, and an address of 569 Vine Street, St. Catharines.
14Det. Const. Maggiolo and Det. Prinsen attended at Mr. Belchior’s residence on January 11, 2021. He was not there. They arranged a time to speak with him at a Tim Horton’s where they later met with him. As a result of that meeting, they contacted Charley Venus on January 12, 2021. Det. Const. Maggiolo and Det. Prinsen met with Ms. Venus on January 13, 2021.
15As will be discussed in more detail, Ms. Venus gave evidence that she had been with Mr. Belchior after about 11 p.m. on January 10, 2021, that he was carrying a Freedom Mobile bag, that she drove him to and dropped him off at Cushman Road and Eastchester Avenue, waited for him at Good Eats Diner and then picked him up further south on Cushman Avenue about 10 minutes later.
16As a result of the interview with Ms. Venus the officers attended at Good Eats Diner to search for video footage. On January 13, 2021, they determined that TKC Recycling might have a surveillance video of Cushman Road in the early morning of January 11, 2021. TKC Recycling is situated south of Eastchester Avenue which is south of 113 Cushman Road. The video was not available to the police on January 13, 2021.
17The officers reattended at TKC Recycling on January 19, 2021, and viewed the video from TKC (the “TKC Video”). The TKC Video, marked as Exhibit 6, looks northwest and shows Cushman Road heading north from TKC Recycling.
18The TKC Video depicts an individual walking south on Cushman Road. According to the time stamp on the video, this occurred between approximately 2:31:15 and 2:32:36 a.m. The individual is carrying an object in hand and can be seen discarding two objects at two different times. At 2:32:17 a.m. the first object is tossed into the area west of Cushman Road near the light post. That an object is thrown is made even clearer when the video is viewed in reverse. The first object appears to be quite small. The second object is dropped at 2:32:32 a.m., south of the light post, just before the individual passes behind a fence.
19Earlier in the TKC Video, a flash of light is seen in the area of 113 Cushman Road. The time stamp at the time of the flash of light is 2:28:44 a.m.
20As noted, both videos have internal date and time stamps. Det. Prinsen testified that he verified the time stamps on both videos to be accurate. There appears to be a time discrepancy in the videos of exactly six minutes based on when the flash of light occurs. When this was pointed out to Det. Prinsen he said he must have been mistaken about the accuracy of the time stamps in one or both videos. Adjusting for the time difference between the videos, the individual seen in the TKC Video discarding objects does this about three and a half minutes after the flash of light. I cannot determine which time stamp in the videos is correct, or whether either of them is correct.
21After watching the TKC Video, Det. Prinsen and Det. Const. Maggiolo searched the area of Cushman Road across the street from TKC Recycling. There they found an orange cloth tote bag with the letters PTS and the words “Professional Training and Simulation” on it. They did not find anything else at the time as there was snow on the ground. The bag was found approximately 15 to 20 metres south of the light post on the west side of Cushman Road across from TKC Recycling.
22Det. Prinsen could not say with certainty whether the bag found is the one it appears the suspect may have been carrying in the Cushman Video. Det. Maggiolo believed the bag to be the same bag because he had information that Mr. Belchior was carrying a Freedom Mobile bag which Det. Const. Maggiolo understood to be orange in colour.
23The TKC Video was not available for download on January 19, 2021. Det. Const. Maggiolo returned to TKC on January 21, 2023, to obtain the TKC Video. He searched the area on the other side of Cushman Road again as there was no longer any snow on the ground and because the video indicated to him that something else might have been discarded in the area. He located an object he described as a small white multi-tool which had a small utility knife, a cutting tool and a spring-loaded punch tool on one end. The words “Parkway Towing” appear on one side of the tool. This item was found closer to the light standard on the west side of Cushman Road across from TKC Recycling, approximately 10 metres north of the bag.
24Det. Const. Maggiolo did not preserve the precise location and position of where the objects were found or take photographs in accordance with common practice. The officers did not test the punch tool to see if it could break windows.
The Insurance Policy
25Mr. Gray-St. Pierre testified with respect to the insurance policy in place as of January 11, 2021. The Ram truck was insured by The Wawanesa Mutual Insurance Company (“Wawanesa”) with a standard automobile policy and optional loss or damage coverage. Mr. Belchior was the insured and Autoport Motors was a loss payee and registered owner of the vehicle. Mr. Gray-St.Pierre confirmed that the sum of $5,450.90 was paid to Autoport Motors in May 2022 as payment for the balance of the lease contract for the Ram truck.
26I have not relied on testimony from Mr. Gray-St. Pierre in which he advised counsel asking the question that he was not the appropriate person to ask or when it was obvious from Mr. Gray-St. Pierre’s answers that he was expressing belief rather than knowledge of facts. Further, I have not relied on any information in the Wawanesa package of documents that contained entries from persons other than Mr. Gray-St. Pierre except for evidence he gave at trial unless specifically indicated herein.
27The evidence of Mr. Gray-St. Pierre given in reference to the Wawanesa documents was that the insured started a claim file by reporting a potential claim online on January 12, 2021 by 7:49 a.m. The date and time of loss reported on the online filing states the loss was on January 11, 2021. The filing contains details including the insurance policy number, the insured’s date of birth, driver’s licence, cell phone number, email address, the truck VIN, licence plate, and a description of the loss as, “Truck caught on fire. Other cars involved and parking lot/sidewalk damage and building damage” and “Whole truck total burn”. The document also indicates that it is a “solo vehicle loss” and that no other parties were involved.
Burden of Proof
28The accused is presumed innocent until a determination is made at the end of the trial on all the evidence that the Crown has proven its case beyond a reasonable doubt. The standard of proof of beyond a reasonable doubt is intertwined with the presumption of innocence.
29The Crown bears the burden of proving all the essential elements of the offences beyond a reasonable doubt.
30Beyond a reasonable doubt has been described as one that is not far-fetched, imaginary, or frivolous. It is not based on sympathy or prejudice. It is based on reason and common sense. It is logically derived from the evidence or absence of evidence. It is not sufficient for a trier of fact to believe that the accused is probably or likely guilty. Such a conclusion must result in an acquittal. However, the Crown is not required to prove anything with absolute certainty. It is nearly impossible to do so.
31As set out by the Court of Appeal for Ontario in R. v Pham, 2019 ONCA 338, at para. 22:
Triers of fact are not to examine facts piecemeal, applying a standard of proof to each one: R. v. Miller (1991), 1991 CanLII 2704 (ON CA), 5 O.R. (3d) 678 (C.A.), at p. 701; R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at p. 359; R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, at para. 23. Except in rare situations, like those in which the Crown’s entire burden is carried by a single fact, it is an error to proceed in that fashion: R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, at pp. 105-6. Pieces of evidence must not be considered in isolation, but cumulatively in an effort to decide whether, on the evidence as a whole, guilt is established beyond a reasonable doubt. It is the cumulative effect of that evidence that matters. As noted by Watt J.A. in R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at para. 82, each item of evidence must be considered relative to the other items of evidence and against the evidence as a whole.
32I am guided by the three-part test in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, where the court set out a suggested formula for assessing credibility in the context of the criminal standard of proof. The evidence of the accused in the W.(D.) formulation applies not just to the accused’s testimony, but to exculpatory evidence led by the accused or arising out of the Crown’s evidence.
33The accused did not testify and did not call evidence on his behalf and is not required to do so. I must still consider whether any exculpatory evidence that arises from the Crown’s case and the evidence as a whole raises a reasonable doubt about Mr. Belchior’s guilt. I must ask myself whether, based on the evidence that I do accept, I am convinced beyond a reasonable doubt of Mr. Belchior’s guilt.
Circumstantial Evidence
34The Crown concedes that its case is based entirely on circumstantial evidence but asserts that the only reasonable conclusion from the evidence is Mr. Belchior’s guilt.
35The defence says the Crown has not established Mr. Belchior’s guilt, that there are other reasonable inferences to draw from the evidence, and that the evidence does not support a finding that the fire was intentionally or recklessly set or that it was Mr. Belchior who set the fire.
36In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, para. 35. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all the evidence. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt: Villaroman, para. 35.
37A reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by the mere fact that it arises from a lack of evidence: Villaroman, para. 36.
38As noted in paragraph 37 of Villaroman, when assessing circumstantial evidence, the trier of fact should consider other plausible theories and other reasonable possibilities which are inconsistent with guilt. Further, the Crown may need to negative reasonable possibilities but does not need to negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.
39The line between a plausible theory and speculation is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty: Villaroman, para. 38. To justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative: Villaroman, para. 39.
40Alternative inferences must be reasonable, not just possible: Villaroman, para. 42.
41The Court of Appeal for Ontario, in R. v Okojie, 2021 ONCA 773, 158 O.R. (3d) 450, at paras. 137, states:
In a case in which proof of one or more essential elements of an offence depends exclusively or largely on circumstantial evidence, the inference of guilt or of an essential element of the offence must be the only reasonable inference to be drawn from the evidence as a whole.
42Accused persons are not required to prove facts to support explanations other than guilt or to raise a reasonable doubt.
Elements of section 434 of the Criminal Code
43Section 434 of the Criminal Code provides that: “Every person who intentionally or recklessly causes damage by fire or explosion to property that is not wholly owned by that person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.”
44To establish the offence in section 424 of the Criminal Code and the charges in counts two through five the Crown must prove each of the following essential elements beyond a reasonable doubt:
i. that Mr. Belchior caused damage to property by fire or explosion;
ii. that Mr. Belchior caused the damage intentionally or recklessly; and
iii. that Mr. Belchior was not the sole owner of the property.
45It is not an essential element of the offence in section 424 that anyone was harmed or endangered: R. v. Ludwig, 2018 ONCA 885, para. 35.
Did the accused cause damage to the property by fire or explosion?
46The first element of the offence can be broken into two components: was it the accused who set the fire and was damage caused by the fire.
Who set the fire?
47The defence submits that while an inference can be drawn that the individual seen in the Cushman Video set fire to the truck, it is not the only reasonable inference to be drawn. The defence says that a reasonable inference from the evidence is that the individual could have been scoping out the truck, or vandalising the truck and inadvertently caused the fire and ran off because they were afraid for their safety. I do not agree.
48I will not repeat here my summary of the Cushman Video which I set out earlier. The only reasonable inference from the Cushman Video is that the individual seen in the Cushman Video intentionally caused a fire to be set on or in the truck.
49The key issue is the identity of the perpetrator. The Crown says it was Mr. Belchior. This is denied by Mr. Belchior who says that the Crown has not proven beyond a reasonable doubt that it was him.
50Mr. Belchior’s former fiancée, Charley Venus, testified. It was the position of both the Crown and the defence that Ms. Venus was credible. The Crown, however, says that Ms. Venus’ evidence about the time that Mr. Belchior attended at her residence was not reliable.
51On January 11, 2021, Ms. Venus and Mr. Belchior were no longer engaged and no longer together having separated at least a year before January 2021. At the time, they were still speaking to each other. Mr. Belchior would call her if he needed a ride or someone to talk to and he was there for Ms. Venus if she needed something. They would see each other at her home on occasion. Ms. Venus still had feelings for Mr. Belchior in January 2021 and did not want him to get into trouble.
52Ms. Venus testified that she suffered from bi-polar disorder and PTSD and that on January 10, 2021, she took her medications at 10:30 p.m. as usual and then went to bed. She was taking prescription Trazodone, Latuda, and Lamotrigine.
53Ms. Venus testified that she was almost asleep when Mr. Belchior called. He was already at her door. She went to the door and he told her to get dressed as he needed her to take him somewhere. She agreed and went upstairs to get dressed. Mr. Belchior went to his truck which was parked in the lot for visitors which she could see from her door. When Ms. Venus came back to the front door, Mr. Belchior was at his truck and came back to the door. She said he had a small reusable Freedom Mobile shopping bag with him. She said she was no longer sure of the colour of the bag.
54Ms. Venus testified that Mr. Belchior’s demeanor that evening, together with things she had heard from friends, made her believe that he was intoxicated by drugs. One minute he was hyper and the next he was falling asleep.
55Together they got into Ms. Venus’ car. Mr. Belchior had the bag with him. Mr. Belchior gave Ms. Venus directions. She eventually drove south down Cushman Road and dropped him off at Eastchester Avenue near a tow truck yard. Ms. Venus said Mr. Belchior was then a tow truck driver. The drive from her house to this location would have taken about 15 minutes. Mr. Belchior told Ms. Venus to meet him down the street near a bridge in 10 minutes.
56Ms. Venus drove to the Good Eats Diner, parked her car, had a cigarette and waited some 10 minutes or so and then went back to pick up Mr. Belchior. She had her phone with her and probably looked at it, but she does not recall what time it was. She drove to the bridge to pick up Mr. Belchior. He was close to Dieppe Road at Cushman Road, south of Eastchester and further south from where she had dropped him off. She does not recall whether he had anything in his hands. He did not say anything to her. They drove to her home. Ms. Venus recalls having a cigarette in the car on the way home. When home, they went inside, went to bed, and she fell immediately asleep. Mr. Belchior left in the morning.
57The police contacted Ms. Venus on January 12, 2023. She contacted Mr. Belchior to ask why they would want to speak with her and he did not provide an answer. Before she was interviewed by the officers, she said Mr. Belchior told her to tell the police he had been there with her all night.
58Ms. Venus’ evidence was not without issues. There were details that Ms. Venus could no longer remember and discrepancies in her evidence compared to her statement to the police were hinted at. She explained her forgetfulness by saying that she was on medication and should not have left the house and should not have been driving. She said her memory had faded with time.
59Her evidence was that despite the time of night she did not ask Mr. Belchior any questions that evening about where they were going or why. She says she does not know what he did for those 10 minutes or so while she waited in the car for him.
60Ms. Venus said she was not certain of the time Mr. Belchior arrived but testified that she believes that Mr. Belchior arrived at her house around 11 p.m. because she had taken her medication at 10:30 p.m. and because she would not have been coherent enough to answer the phone after that. And yet, she was able to drive around the city for at least 40 minutes after some delay to get dressed. She was also able to drive to Good Eats on her own, wait in the parking lot, and on her evidence, of her own accord drive back to get Mr. Belchior 10 minutes or so later and meet up with him. She recalls having a cigarette at the Good Eats and on the drive back to her home.
61Ms. Venus also acknowledged that she thought that she told the police in her statement that Mr. Belchior arrived at one o’clock. It was also suggested to Ms. Venus in cross-examination that at her preliminary hearing she thought Mr. Belchior arrived between 9 and 11 p.m. She did not adopt either of these times as her evidence at trial.
62I do not find Ms. Venus’ evidence about the time that Mr. Belchior arrived at her home to be particularly persuasive or reliable. I do not find her explanation for why he could not have arrived at her home much later than 11 p.m. credible. I do not accept her evidence in that regard. Ms. Venus either does not know what time Mr. Belchior attended at her home, or she is providing an earlier time to protect him.
63However, Ms. Venus’ evidence of where she took Mr. Belchior and where she picked him up was unchallenged and unshaken. She did not forget those details. It also corresponds closely to the location of the fire and to the TKC Video of the individual walking south on Cushman Avenue on January 11, 2021. Ms. Venus’ evidence that Mr. Belchior had a bag with him when she dropped him off on Cushman Road, but not necessarily when he returned, is consistent with the evidence in the Cushman Video and the TKC Video.
64Ms. Venus also testified and was not credibly challenged on her evidence that Mr. Belchior told her to tell the police that he was with her all night.
65The defence does not proffer any suggested inferences to be drawn from Mr. Belchior’s attendance at Cushman Road that night under the unusual circumstances of being driven there and picked up by Ms. Venus, rather than driving himself even though he had driven his tow truck to Ms. Venus’ house. This is not to say that the defence has a burden to prove other reasonable inferences – it does not.
66The defence asserts that it was not Mr. Belchior who lit the fire because he arrived at Ms. Venus’ house somewhere between 10:30 and 11 p.m. and then was out with Ms. Venus for 40 to 45 minutes and so it could not have been Mr. Belchior who caused the fire at approximately 2:30 a.m. I do not accept the timeline proposed by Mr. Belchior, which is based entirely on the evidence of Ms. Venus as to the timing of his attendance at Ms. Venus’ house, which I have not accepted.
67Mr. Belchior’s after-the-fact request of Ms. Venus to tell the police he was with her all night could perhaps have innocent explanations standing on its own. Mr. Belchior did not offer an alternative inference to be drawn from the request. I am aware that after-the-fact conduct poses unique reasoning risks, including of jumping too quickly to an inference of guilt.
68The request by Mr. Belchior of Ms. Venus is relevant. In the context of all the evidence, Mr. Belchior’s request of Ms. Venus to tell the police that he was with her all night makes an inference that it was Mr. Belchior who lit the fire logically more likely. In my view, the request of Ms. Venus is not equally consistent with any possible innocent explanation for the conduct. Nevertheless, this is simply one piece of circumstantial evidence.
69The undisputed evidence is that Mr. Belchior’s Ram truck was insured by Wawanesa. The online claim report to Wawanesa with respect to the truck was made shortly after the police cleared the scene at approximately 7:15 a.m. and before the police had met or spoken to Mr. Belchior. It was approximately five hours after the fire. It contained details of the fire and the Ram truck and Mr. Belchior’s personal information.
70In the context of all the evidence, the filing of the insurance claim makes an inference that it was Mr. Belchior who lit the fire logically more likely. Given the timing of the filing, before Mr. Belchior had been contacted by the police, it is not equally consistent with any possible innocent explanation for the conduct. Again, this is simply one piece of circumstantial evidence to be considered.
71Having considered the totality of the evidence, including the videos, Ms. Venus’ evidence, and the items found by the police on Cushman Road, it is my view that the only reasonable inference that can be drawn from the evidence is that it was Mr. Belchior who set the fire. Any other inference would require the following extraordinary coincidences: Mr. Belchior just happened to have been dropped off and left on his own in the middle of the night very near the location where his Ram truck, among many vehicles parked in the same location, was set on fire. He just happened to be carrying a bag, like the person seen in the Cushman Video. He just happened to be picked up approximately 400 metres south of the location where an individual is seen on the TKC Video discarding items about three and a half minutes after Mr. Belchior’s truck was set on fire. Someone other than Mr. Belchior filed an insurance claim for his truck shortly after the fire the next morning. Finally, the next day, for a reason not related to the fire, when Ms. Venus is contacted by police, Mr. Belchior directs Ms. Venus to tell the police that he was with her all night.
72In my view, the evidence establishes beyond a reasonable doubt that it was Mr. Belchior who set the fire even without the filing of the insurance claim. The filing of the insurance claim simply lends further support to the conclusion.
Was damage caused to property by fire or explosion?
73Next, I turn to the element of damage to property. The criminal act of arson is causing damage to property and the actus reus is damaging property by fire: R. v. Tatton, 2015 SCC 33, [2015] 2 SCR 574.
74To cause a consequence means to do something to make it happen, to bring it about. To cause damage to property by fire or explosion means to cause harm to property by setting fire or causing an explosion to the property or to something that causes the property to explode or catch fire.
75“Damage” has its ordinary meaning. It means causing harm and includes any reduction in the value of the property or real physical harm to it, such as destruction, burning, scorching, blistering or blackening of the property.
76Damage may be proven by evidence of reduction in value, or of real physical harm. However, it does not require proof that the property was diminished in value by the fire: R. v. V. (M.) (1988), 1998 CanLII 4374 (ON CA), 123 C.C.C. (3d) 138 (Ont. C.A.); leave to appeal refused [1998] S.C.C.A. No. 142.
77The photographs and testimony of Det. Prinsen establish that there was significant damage to the Ram truck, the white Mercedes, and Ford sedan, as well as some damage to the windows of the building out of which Food For Kids operated. The Cushman Video shows that the damage seen in the photographs is not present on the Ram truck and white Mercedes prior to the flash of light on the video. The photographs depict what appears to be damage caused by fire to the three vehicles. I infer from the evidence that the fire set at the truck caused the damage to the Ram truck, white Mercedes, and Ford sedan.
78The photographs indicate that there is some minor damage to the white Budget rental van rear driver’s side. There is very little evidence as to the nature of the damage to the Budget rental van. It cannot be discerned from the video whether the damage pre-existed the fire. There is insufficient evidence to determine whether the damage to the Budget rental van was caused by the fire. Accordingly, I find Mr. Belchior not guilty on count four with respect to the Budget rental van.
79The Cushman Video also shows that the windows and front of the Food For Kids building are not damaged before the fire. The photographs suggest that the damage may have been caused by fire. However, it is clear from the photographs and the Cushman Video that the unit which suffered damage, was unit 27, not unit 21 as in the charge. The Crown did not seek to amend the charge which refers to 21-113 Cushman Road. I find that there is insufficient evidence to establish that the property at 21-113 Cushman was damaged by fire. Accordingly, I find Mr. Belchior not guilty on count five.
Did the accused cause the damage intentionally or recklessly?
80Whether Mr. Belchior caused the damage intentionally or recklessly relates to Mr. Belchior’s state of mind at the time he caused the damage to the property by setting the fire or causing the explosion.
81No mens rea beyond proof that the accused intentionally or recklessly caused damage to property by fire or explosion is required: R. v. Ludwig, 2018 ONCA 885, para. 35. No additional knowledge or purpose is required. The mental or fault element is the intentional or reckless performance of the illegal act – damaging property by fire.
82In assessing whether the fault element has been proven beyond a reasonable doubt, a trier of fact should consider all the circumstances, including the way the fire started. All surrounding circumstances must be considered to determine whether an inference can be drawn that the accused intended to damage another person’s property or was reckless whether damage ensued.
83To intentionally cause damage by setting a fire or causing an explosion is to mean to cause damage, to do it on purpose, in other words not by accident.
84In section 434 of the Criminal Code, recklessness requires proof that the accused knew that damage by fire to the property was the probable consequence of the conduct and that the accused proceeded with the conduct in the face of the risk: R. v. D. (S.) (2002), 2002 NFCA 18, 1 C.R. (6th) 5; 164 C.C.C (3d) 1 (Nfld. C.A.).
85Accordingly, to find that Mr. Belchior intentionally or recklessly caused damage the only reasonable inference must be that the accused knew that setting the fire would cause damage to property or was aware of the risk that damage would occur to other property and proceeded in the face of that risk.
86The evidence discloses that there was a specific intention to cause damage to the Ram truck. This is clear from the way the fire was set as depicted in the Cushman Video. It was no accident. I find that Mr. Belchior intended to cause damage to the Ram truck.
87I find that Mr. Belchior was reckless as to whether there would be damage to other property and proceeded in any event. Setting the truck on fire in these circumstances would have likely damaged property in the immediate vicinity of the truck as a natural and probable consequence of setting the truck on fire. The only reasonable inference is that Mr. Belchior would have been aware of the risk that setting the truck on fire would cause at least some damage to vehicles parked in the immediate vicinity of the truck.
Was the accused the sole owner of the white Mercedes and the Ford sedan?
88The final element is concerned with the ownership of the white Mercedes and the Ford sedan.
89Section 434 does not apply where the person who causes the damage wholly owns the property: Ludwig para. 35.
90A person is the only owner of property if no one else has any interest, however small, in the property as owner. He is the person who would suffer the entire loss if the property were destroyed by fire. A person is not the sole owner of a property if anyone else – for example, a mortgage company or a bank – has a financial stake in it, even a small one.
91There is no direct evidence as to the ownership of the white Mercedes or the Ford sedan. Although it appears it would have been either readily available or easily obtained, the Crown did not lead evidence of:
i. the names of the owners;
ii. an affidavit from the owners pursuant to section 657.1 of the Criminal Code;
iii. the owner of the licence plate on the white Mercedes even though the photos and evidence is that it had a licence plate affixed to it; or
iv. the registered owner of the Ford sedan even though the evidence is that the VIN for the Ford sedan was available.
92The Crown concedes that the only evidence before the court as to ownership of those vehicles is that Det. Prinsen testified that he attempted to, but did not speak with the owners, and that at some point he did speak with Mr. Belchior. The Crown conceded that an argument could be made that the Crown has not proven ownership of the vehicles and that an inference that Mr. Belchior is not the sole owner of the white Mercedes and Ford sedan would have to be drawn from the very limited evidence.
93What inferences can I draw from the evidence? It is possible that Mr. Belchior was the sole owner of the white Mercedes. It is possible that Mr. Belchior was the sole owner of the Ford sedan. The more vehicles or property that are added to the list, the less realistic and the more speculative becomes the possibility that Mr. Belchior is the sole owner of all of them. That he wholly owned two vehicles parked beside the Ram truck in the parking lot where the fire occurred seems unlikely. An inference that Mr. Belchior was not the only owner of the white Mercedes and Ford sedan is also possible. I would have to guess which vehicles he did not wholly own.
94But the burden is on the Crown. There is a complete absence of readily available evidence as to ownership. In these circumstances, I am not prepared to find that the only reasonable inference is that that Mr. Belchior was not the only owner of the white Mercedes and was not the only owner of the Ford sedan.
95As a result, I find that the Crown has not established any of the four offences of arson pursuant to section 434 of the Criminal Code and I find Mr. Belchior not guilty of those charges.
Elements of s. 434.1 of the Criminal Code
96Section 434.1 of the Criminal Code provides that:
Every person who intentionally or recklessly causes damage by fire or explosion to property that is owned, in whole or in part, by that person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years, where the fire or explosion seriously threatens the health, safety or property of another person.
97The first two elements of s. 434.1 of the Criminal Code are the same as for s. 434:
i. that Mr. Belchior caused damage to property by fire or explosion; and
ii. that Mr. Belchior caused the damage intentionally or recklessly.
98As noted above, I am satisfied beyond a reasonable doubt that it was Mr. Belchior who lit the fire and caused damage to the Ram truck and that he did so intentionally and was reckless as to whether there would be damage to other property.
99To establish the offence in s. 434.1 of the Criminal Code as charged in count one, the Crown must prove each of the following additional elements of the offence:
i. that Mr. Belchior was an owner, in whole or in part, of the Ram truck; and
ii. that the fire or explosion seriously threatened the property of another person.
Was Mr. Belchior an owner of the property?
100I am satisfied beyond a reasonable doubt that Mr. Belchior had an ownership interest in the Ram truck. The plates for the truck were registered to Mr. Belchior. He was a beneficiary of the insurance policy on the truck. The truck was leased from Autoport Motors. I am satisfied that Mr. Belchior was an owner, in whole or in part, of the truck.
Did the fire seriously threaten another person’s property?
101Whether the fire seriously threatened another person’s property has to do with the consequences of the fire for property belonging to somebody other than Mr. Belchior.
102“Seriously” refers to the magnitude and likelihood of the threat. There must be a significant danger of serious harm to another’s property.
103For a fire or explosion to seriously threaten another person’s property it must be a great or significant source of danger to the property of another person or the health or safety of another person. There does not have to be any actual injury or harm caused to the other person, or damage to his/her property, but there must be a significant danger of it.
104Setting a vehicle on fire, which is immediately adjacent to other vehicles and a building, creates a significant source of danger to surrounding property. Fires spread. Vehicles contain gasoline which is flammable. Fires create heat which can be intense and can easily damage property in their immediate vicinity. I am satisfied on the evidence before me that the Crown has established beyond a reasonable doubt that the fire was objectively a significant source of danger to the property in the immediate vicinity of the Ram truck.
105The evidence discloses that the Ram truck was parked in the immediate vicinity of a commercial building and four other vehicles, including the Budget van. At least two other vehicles and the building were damaged by the fire. A third vehicle, the blue sedan, also appears to have been damaged by the fire. On the evidence before me, Mr. Belchior wholly owning all these vehicles and the commercial building is unlikely in the extreme and is not a reasonable inference to draw on the evidence. I find that the fire posed a significant danger of serious harm to another’s property.
106Therefore, I find Mr. Belchior guilty on count one, the s. 434.1 charge.
Elements of s. 435(1) of the Criminal Code
107The relevant portion of s. 435(1) of the Criminal Code provides that:
Every person who, with intent to defraud any other person, causes damage by fire or explosion to property, whether or not that person owns, in whole or in part, the property, is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.
108The elements of s. 435(1) in the context of the charge in count seven are:
i. Did the accused cause damage to a motor vehicle by fire?
ii. Did the accused cause the damage intentionally? and
iii. Did the accused intend to defraud Wawanesa?
The first two elements
109As noted above, I am satisfied beyond a reasonable doubt that it was the accused who set fire to the Ram truck and caused damage to the truck by fire and that the accused lit the fire and caused the damage intentionally.
Did the accused intend to defraud Wawanesa?
110The third essential element has to do with Mr. Belchior’s state of mind at the time he caused damage to the property by setting the fire or causing the explosion.
111To intend to defraud someone means to intend to deprive them of something of value, usually money, by means that ordinary people would consider dishonest: R. v. D. (R.N.) (1994), 1994 CanLII 403 (BC CA), 89 C.C.C. (3d) 449 (B.C. C.A.).
112The Crown must establish beyond a reasonable doubt that by setting the fire Mr. Belchior meant to put Wawanesa’s economic or financial interest at risk, for example by having Wawanesa pay out money under an insurance policy on the Ram truck.
113The Crown does not have to prove beyond a reasonable doubt that Wawanesa lost money or anything else of value because of the fire or explosion. It is Mr. Belchior’s state of mind that is essential, not whether Wawanesa lost or paid out any money.
114Here, Wawanesa did in fact pay out money to Autoport Motors for the amount remaining due to Autoport Motors under the lease contract. Wawanesa was deprived of something of value and its economic or financial interest was put at risk.
115Section 435(2) of the Criminal Code provides:
Where a person is charged with an offence under subsection (1), the fact that the person was the holder of or was named as a beneficiary under a policy of fire insurance relating to the property in respect of which the offence is alleged to have been committed is a fact from which intent to defraud may be inferred by the court.
116Mr. Belchior’s Ram truck was insured by Wawanesa. He was a holder of an insurance policy and a beneficiary of the policy. On the facts of this case, I would find those facts sufficient to draw the inference that Mr. Belchior intended to defraud Wawanesa. That conclusion is further bolstered by the evidence that a claim related to the Ram truck was filed with Wawanesa about five hours after setting the fire. I find that the Crown has established beyond a reasonable doubt that Mr. Belchior intended to defraud Wawanesa by causing damage to property by fire.
117Therefore, I find Mr. Belchior guilty on count seven.
Conclusion
118In conclusion, I find Mr. Belchior not guilty on counts two through six, and guilty on counts one and seven of the indictment.
Bordin J.
Released: December 12, 2023