Court File and Parties

COURT FILE NO.: CR-23-485 DATE: 20240816

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN :

HIS MAJESTY THE KING N. Jaswal, for the Crown

- and -

CHARLES DUKU G. Butler, for the Respondent

HEARD: June 10-12, 2024

Reasons for Judgment

BALTMAN J.

Introduction

[1] Mr. Duku was the sole resident of a high-rise apartment in Brampton. In the early morning of April 4, 2021, a fire occurred within the apartment around the time Mr. Duku was seen entering and exiting.

[2] Mr. Duku faces two charges: first, that he intentionally or recklessly caused damage by fire to a residence, contrary to s. 434 of the Criminal Code of Canada, R.S.C., 1985, c. C-46, and second, that he committed mischief by willfully damaging property without justification, contrary to s. 430(3) of the Code.

[3] At this trial, the Crown relied on the evidence of the attending firefighters and an expert fire investigator. The Defence did not call any evidence, but the parties filed a helpful Agreed Statement of Facts.

Factual Background

[4] The following facts are largely undisputed.

[5] Mr. Duku was a tenant in a high-rise apartment in Brampton. He lived by himself.

[6] This case relates to a fire that occurred within his apartment in the morning on April 4, 2021. Mr. Duku was in the apartment by himself that morning. He left his apartment at approximately 6:00 a.m. and returned several minutes later.

[7] Mr. Duku left the apartment again at 7:05 a.m. At 7:11 a.m., he is seen in the elevator returning to his apartment. While in the elevator, Mr. Duku held up a blue barbeque lighter to the elevator buttons. Mr. Duku is seen on surveillance waving the lit lighter across the elevator buttons. He re-entered his apartment at 7:12 a.m.

[8] At 7:13 a.m. Mr. Duku left his apartment and proceeded down the hall into a stairwell.

[9] At 7:22 a.m. the Brampton Fire Department attended at Mr. Duku’s apartment to respond to an active fire inside the apartment. This is a one-bedroom apartment which consists of a kitchen and small dining area, a central living room with balcony access, a bedroom, and a bathroom. The living room, where the fire originated, is directly in front of the entrance door. The interior of the apartment was sparsely furnished. A king-sized bed and large flat screen TV were in the bedroom. There were two wicker style chairs and a large flat screen TV in the living room. Two barber style chairs along with a shelving unit containing barber equipment were located in the living room and dining room. There were two refrigerators in the kitchen.

[10] No one else accessed Mr. Duku’s apartment prior to the arrival of the firefighters and they did not locate anyone inside the apartment. However, in the middle of the living room, they found a lawn chair actively on fire. They put out the fire.

[11] The fire caused damage to the apartment flooring and the smoke alarm, and ultimately resulted in $1,700 worth of clean up by the owner.

Legal Framework

[12] While Mr. Duku faces two charges, his counsel has conceded that if he is found guilty of arson under s. 434 of the Code, it follows that he is also guilty of mischief under s. 430(3) of the Code. I will therefore focus on the essential elements of s. 434 of the Code, which provides that anyone who “intentionally or recklessly causes damage by fire or explosion to property that is not wholly owned by that person” is guilty.

[13] The criminal act in s. 434 is not the setting of a fire. The conduct that has been criminalized is the causing of damage to property. The fire is simply the means by which the damage must be caused: R. v. Tatton, 2015 SCC 33, at para. 55.

[14] The legal requirements are simple. The illegal act (actus reus) is the damaging of property by fire. The mental element (mens rea) is the intentional or reckless performance of the illegal act – the causing of damage to property. Intentional means deliberate. Reckless means realizing the risk and proceeding nonetheless: Sansregret v. The Queen, [1985] 1 S.C.R. 570, at para. 16.

[15] Further, it is undisputed that the Crown’s case relies entirely on circumstantial evidence. Where proof of an offence depends on circumstantial evidence, a trier of fact may convict if guilt is the only reasonable inference available. If the Crown cannot disprove reasonable possibilities or “other plausible theories” that conflict with guilt, the trier of fact must acquit: R. v. Villaroman, 2016 SCC 33, at paras. 30, 36, and 37.

Evidence and Analysis

[16] Three firefighters attended to put out the fire: Jamie Brook, Solon Chow, and Bruce Carlson, all of whom testified at trial. Their narratives were largely similar and none of them was seriously challenged in cross-examination. All three firefighters emphasized the following points:

• As soon as they entered the apartment the fire and heavy smoke was visible, coming from a folding lounge chair in the living room approximately 6-8 feet straight ahead of them;
• The lounge chair had been turned upside down and was sitting in the middle of the living room floor;
• The flames were approximately 6-7 feet high, getting close to the ceiling which they estimated at 8-9 feet in height;
• They searched but found no person inside the apartment;
• The house was generally messy and in disarray; one of the fridges in the kitchen had been pulled away from the wall and was sitting on an angle, and the other fridge had been left open, with food spilling out;
• They immediately suspected arson, particularly given the fire was “localized” to the furniture in the middle of the floor with no obvious ignition source nearby.

[17] The Crown also relied on the evidence of Clive Hubbard, an expert Fire Investigator. Mr. Hubbard attended the scene and prepared a detailed report, dated May 14, 2021, essentially concluding that the fire was “intentional” or “incendiary”.

[18] Mr. Hubbard’s testimony largely tracked his report, with one modification: the office of the Fire Marshal no longer uses the word “intentional” as, according to Mr. Hubbard, “that language speaks to motive”, and their job is not to investigate motive, but rather to determine cause. As I will explain below, this modification is nonsensical, but in any case, has no effect on the correct result in this case, as it was apparent from Mr. Hubbard’s testimony that this fire was set deliberately.

[19] Mr. Hubbard’s findings were not seriously challenged in cross-examination. They can be summarized as follows:

• A single ignition sequence was identified for the fire, namely the application of an open flame to the combustible fabric covering of the lawn chair in the living room;
• Additional fires had been previously ignited within the apartment, specifically a) the curtains in the living room, b) a Bible and roll of paper towel on the kitchen floor, and c) paper towel on the right front burner of the stove;
• The physical damage caused to the lawn chair and hardwood flooring beneath it was the direct result of a fire being ignited on the chair as it was sitting on the living room floor;
• There were no “accidental ignition sources” present, such as candles, faulty wiring or electrical components;
• The additional fires that had extinguished before the firefighters arrived – i.e. the living room curtains and the kitchen – were ignited separately from each other;
• The smoke alarm had been removed from its bracket on the wall outside the bedroom and was found near the lawn chair. It sustained thermal damage due to its proximity to the fire.
• This fire can therefore be classified as “incendiary”.

[20] Based on those findings, Mr. Hubbard’s report concluded that the only potential ignition source for all four fires (lawn chair, curtains, kitchen floor and stove burner) was the “intentional application of an open flame by human intervention”. He repeated that phrase at several points in his report, each time using the word “intentional”.

[21] However, at trial Mr. Hubbard testified that today he would remove the word “intentional” from his report, because he “doesn’t want to comment on motive”. He opined that “intentional application speaks to motive”, and they “don’t investigate motive”. Their job is to determine cause and circumstance.

[22] Although it does not affect the result in this case, in this regard Mr. Hubbard’s point is fundamentally misguided. Intentional application does not speak to motive. Intention and motive are different concepts. “Intention” simply means the specific goal a person has in mind when they take an action. “Motive” refers to the underlying reason behind the action. In the context of a fire, a person who deliberately used fire to cause damage to property intended that result. But that says nothing about why they set the object on fire. In any case, motive is not one of the essential elements that the Crown must prove.

[23] The fallacy in equating “intention” with “motive” became evident during Mr. Hubbard’s testimony, when he stated that wherever he used the word “intentional” in his report he meant “with the intention of causing fire”. The fact that his revised definition contains the very word – “intention” - that he ostensibly seeks to avoid, demonstrates the futility of this approach and the failure to distinguish intention from motive.

[24] That said, Mr. Hubbard’s insistence during his testimony on that illogical phrasing does not take away from the essential point of his evidence, namely that the fire was clearly “not accidental”, but rather resulted from the application of an open flame to the fabric of the lawn chair and to the other three locations. As he put it, his findings are the same, it’s simply the reporting that has changed.

Essential Findings

[25] In summary, it is undisputed that Mr. Duku was the sole resident of this apartment. He was seen exiting the apartment three times on the morning of the fire, shortly before the fire department was called. No one else entered his apartment during the relevant period. On his second return trip, while inside the elevator, he lit and waived a barbeque lighter. As the sole person who accessed the apartment at the relevant time, and possessing the means to set the fire, the only reasonable inference is that he caused it. That satisfies the actus reus.

[26] As for the mens rea, the uncontroverted evidence of Mr. Hubbard is that this fire was not accidental. The fire was localized to a lawn chair that had been set on fire in the middle of the living room. There was no ignition source near the lawn chair where the fire was burning, or any evidence of faulty wiring or electrical malfunction. The smoke detector had been removed from its location on the wall. There is simply no basis to believe that the fire was accidental or unintentional. While the evidence may be entirely circumstantial, it collectively leads to only one reasonable inference, namely that Mr. Duku intentionally or recklessly caused this fire.

Conclusion

[27] Mr. Duku is guilty of intentionally or recklessly causing damage by fire to his residence, contrary to s. 434 of the Criminal Code.

[28] As conceded by his counsel, it follows that he is also guilty of mischief, contrary to s. 430(3).

Baltman J. Released: August 16, 2024