Citation: R. v. Boucher, 2011 NSSC 364
Date: 20111018
Docket: CRY. 348127
Registry: Yarmouth
Between:
Her Majesty the Queen
Plaintiff
v.
Francis George Boucher
Defendant
ORAL DECISION
Judge: The Honourable Justice A. David MacAdam.
Heard: September 15, 2011, in Yarmouth, Nova Scotia
October 12, 2011 (Oral Decision Given)
Final Written
Submissions: September 19, 2011
Written Decision: October 18, 2011
Counsel: Richard W. P. Murphy, for the Crown
Wayne S. Rideout, for the Accused
By the Court:
Introduction
[1] The accused, Francis George Boucher, is charged with “arson for a fraudulent purpose” under s. 435(1) of the Criminal Code. He is accused of burning his restaurant, Frank's Atlantic Eatery, in Lower Clark's Harbour, NS.
[2] There is no dispute that the restaurant was damaged by fire on April 21, 2010. Nor is there any dispute that the property was owned by the accused and insured by Sovereign General Insurance under a policy issued to Frank's Atlantic Eatery Limited, a limited company incorporated in Nova Scotia of which Mr. Boucher was president, secretary and sole director. Also not in dispute is that the fire was deliberately set. The only issue is whether the Crown has proved beyond a reasonable doubt that Mr. Boucher set the fire.
Fundamental Principles
[3] There are two basic and fundamental principles in every criminal trial: The presumption of innocence and the requirement for proof beyond a reasonable doubt.
[4] The presumption of innocence remains with an accused throughout the trial. It only ceases to apply if, after considering all the evidence, the court is satisfied beyond a reasonable doubt that the accused is guilty. The accused has no obligation to prove his innocence, or to explain the evidence presented by the Crown. The law presumes him to be innocent until a court of law, having considered all of the evidence, is satisfied that the Crown has proven every element of the offence charged beyond a reasonable doubt.
[5] This burden of proof on the Crown marks the second fundamental principle in our criminal law. It is not sufficient if, on the balance of probabilities, the accused may have, or is likely to have, committed the offence. Every element of the offence must be proved beyond a reasonable doubt. If the Crown fails to prove any one or more of the elements beyond a reasonable doubt, the accused must be acquitted. Proof beyond a reasonable doubt is more than proof on a balance of probabilities and less than proof to an absolute certainty. It, however, lies "much closer to absolute certainty than to proof on a balance of probabilities": see R. v. Lifchus, [1997] 3 SCR 320, R. v. Bisson, [1998] 1 SCR 306 and R. v. Starr, 2000 SCC 40, [2000] 2 SCR 144.
[6] In considering the evidence, including the exhibits, I recognize I do not have to necessarily accept or reject all the evidence of any witness. I am permitted to accept part of it. I am required to direct myself to all of the evidence bearing on the relevant issues in order to attribute the correct weight, recognizing that individual pieces of evidence must not be examined in isolation but must be considered in the context of all the evidence as a whole.
[7] Witnesses see and hear things differently and discrepancies do not necessarily mean that the testimony of a witness should be disregarded. Discrepancies in trivial matters may be, and often are, unimportant. In assessing credibility, one must consider the opportunity the witnesses had to observe the events to which they testified, the extent to which the witnesses had any interest in the outcome of the trial or any motive for either injuring or favouring the accused. In doing so, I must consider whether the witness is entirely independent and whether the testimony is reasonably internally consistent.
The Offence
[8] Section 435 of the Criminal Code provides:
Arson for fraudulent purpose
435. (1) 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 not exceeding ten years.
Holder or beneficiary of fire insurance policy
(2) 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.
[9] Establishing guilt of the offence of arson for a fraudulent purpose requires the Crown to prove a number of elements, each of them beyond a reasonable doubt: the identity of Mr. Boucher as the offender, the time and place of the offence as set out in the indictment, that Mr. Boucher caused the damage to Frank's Atlantic Eatery by fire and that Mr. Boucher caused the damage with the intent to defraud another person. Other than the identity of Mr. Boucher as the offender, none of the other elements are in dispute. The fire was deliberately set and there was insurance on the property in the name of Mr. Boucher's company. The presumption arising out of s. 435(2) applies, and it could be inferred, if he committed the offence, it was with the intent to defraud Sovereign General Insurance.
The Discovery and Fighting of the Fire
[10] Around 10:00 a.m. on April 21, 2010, Tanya Holmes saw smoke coming from the eaves of Frank's Atlantic Eatery. She called the fire department. She went to the property, but she did not see Mr. Boucher, the owner. Earlier she had seen a blue truck which she said looked like his truck, from its size and colour, leave the area. She did not see the driver and admitted that she was aware that there was another similar truck in the area.
[11] Robert Kenny, a member of the local volunteer fire department, received a page around 10:30 a.m. In order to drive to the fire department he had to pass by Frank's Atlantic Eatery. He stopped for a minute or two and walked around the building. He saw smoke coming from the eaves and kitchen exhaust. He said all the windows and doors of the building appeared intact, with no openings, although he did not try to open any of them. On cross‑examination he agreed that his inspection was superficial. He concluded that there was a fire, although he did not see any flames. He drove to the fire station, returning around 15 minutes later.
[12] When Mr. Kenny returned to the property, he saw Mr. Boucher sitting on a log in the parking lot. He had not seen him there the first time. Mr. Kenny was not part of the fire attack team that first entered the building to fight the fire. His responsibility was to set up the equipment. Dwayne Hunt, a Captain with the Fire Department, was in charge. After the fire was extinguished, around 11:30 a.m., Mr. Kenny went into the building. He noticed that the heat had scorched a location in the dining room and the counter around the cash register. Capt. Hunt pointed out that there had been another fire under the building, at the back. He formed the opinion that the fire was probably arson. He agreed on cross‑examination that he did not smell gasoline. His conclusion was based on observing the locations where there was evidence of fire and seeing what appeared to be a gas can cap in the area of one of the fire locations.
[13] Mr. Kenny had a short conversation with Mr. Boucher. He indicated on cross‑examination that he did not recall how Mr. Boucher was dressed. He said he was five or six feet away from him, and was not close enough to smell anything on him. He never looked on Mr. Boucher's person for any fire residue.
[14] As noted earlier, Capt. Dwayne Hunt was in charge at the scene of the fire. He arrived around 10:43 a.m. He said there were no visible signs of fire, though there was smoke from the range vent and the eaves. He was unable to see inside. He sent two firefighters into the building. They smashed the glass on one of the doors, from which he concluded that it had been locked. They were inside for 10 to 15 minutes, and came out through the same door. The fire had been extinguished.
[15] Captain Hunt entered the building and observed a number of points of origin. The locations where he noted signs of fire were not connected to each other. He saw what appeared to be a gas can stopper in the area of one of the points of origin. He ordered everyone out of the building.
[16] After firefighters did a circle of the building, Captain Hunt learned that there was burned grass at the back. Apparently there was an opening that provided access under the building, in which there was evidence of what appeared to be burnt cardboard. This burned area was not connected to the points of origin he had observed inside the building.
[17] On cross‑examination Captain Hunt agreed he did not smell any accelerant, including gasoline. He also agreed he did not enter the opening at the back of the building to see where it led, and that he did not know if it provided entry or exit from the building. He also said the volunteer firefighters who walked around the building reported that all the windows and doors were closed.
[18] Having concluded the origin of the fire was suspicious, Captain Hunt called the Fire Marshal's office.
Mr. Boucher and The Restaurant Business
[19] Geneva Cunningham, the former owner of the restaurant, learned from her sister that the restaurant was on fire, and went down with her around 10:30 a.m. The fire trucks had arrived by then. Mr. Boucher arrived after she did. He arrived in his truck. She went over to him. He said he was going to be sick. On cross‑examination she acknowledged that when she approached him she gave him a hug. She said she did not smell fuel or smoke on him.
[20] Wendy Fitzpatrick testified that she was a waitress in the restaurant. She would typically report at 11:00 a.m. Mr. Boucher, who was the cook, would arrive earlier. She testified that the restaurant had been open for about nine weeks in 2009 and then closed for the winter, she believed in October. She estimated that it reopened around April 10, 2010.
[21] John Brobbin and Megan Brobbin each testified that they were friends of Mr. Boucher. They had known him when they lived in Midland, Ont., and Mr. Boucher stayed with them when he first visited Nova Scotia. Ms. Brobbin was a realtor, and she assisted Mr. Boucher in locating and purchasing the restaurant, which had not operated for several years. Mr. Boucher bought the restaurant in late 2008, and it opened in the spring of 2009.
[22] Mr. Brobbin said the restaurant seemed to do all right when it opened. After closing the restaurant in the fall of 2009, Mr. Boucher went out west to earn money over the winter. He left the keys with Ms. Brobbin, and from time to time either she or Mr. Brobbin would check on the property. Ms. Brobbin noticed water inside the restaurant on one of her checks. She said Mr. Boucher fixed the problem when he returned in the spring.
[23] Mr. Brobbin testified that when Mr. Boucher returned he was positive about the restaurant. However, he was frustrated as a result of an unsuccessful attempt to obtain working capital. Mr. Brobbin added that he appeared to be bouncing back from this failure. Both Mr. and Ms. Brobbin testified that Mr. Boucher, at some point, said words, to the effect, "it would be great if something happened to it...I almost wish it could burn." He said he assumed that Mr. Boucher was talking about the restaurant. Mr. Brobbin then testified that "we all do that". He said he didn't put any weight on it as "saying that and doing something are completely different things". On cross-examination Mr. Brobbin acknowledged he did not know if the locks had been changed when Mr. Boucher purchased the restaurant. He also acknowledged he had no idea how many keys there were to the restaurant.
[24] Ms. Brobbin testified that when Mr. Boucher returned in the spring of 2010 he was frustrated, referring as an example to problems with the dishwasher. She understood he was seeking a line of credit with the Royal Bank, but there had been a problem. However, she also said that before the fire things seemed okay.
[25] Ms. Brobbin said the opening of the restaurant was delayed because of a number of issues, including the problem with the dishwasher, a leak in the roof and Mr. Boucher's requirement for a food handler license. She said Mr. Boucher was discouraged. She testified that in October 2009 Mr. Boucher asked her to list the property for sale. He told her that he might fix it up and "flip" it. She believed he went out west shortly after she listed the restaurant. She said there was no interest in the property and over the winter she did not show it to anyone. When Mr. Boucher returned in the spring of 2010, he withdrew the listing. On cross‑examination, Ms. Brobbin said he had asked her not to put any “for sale” signs on the property. He didn't want the community to know he had it up for sale. She testified that he was frustrated with the building and said words to the effect that "it would be easier if it just burned down." She attributed the comment to his frustration in getting the restaurant going.
[26] Cpl. Mario Ross is a member of the RCMP. He received a call to attend at the fire scene. He believed it was to provide traffic control. He arrived between 11: 22 and 11: 30 a.m. One of the firefighters on the scene told him that the origin of the fire appeared suspicious. Capt. Hunt showed him around the perimeter, pointing out the crawlspace in the back of the building. He could see that something, apparently cardboard, had burned. Inside the building he saw two different locations where there was evidence of burning. He told Mr. Boucher that the fire was suspicious. He estimated that he spoke to Mr. Boucher about a half hour after he arrived on the scene. He and Mr. Boucher went over to his RCMP vehicle. He sat in the driver's seat and Mr. Boucher sat in the front passenger seat. He did not pay attention to the clothes he was wearing. He did not smell gas or smoke on Mr. Boucher nor in the car.
[27] Before Cpl. Ross entered the restaurant he viewed the perimeter for signs of forced entry. He saw damage, possibly the mark of a crowbar, to a door on the back of the building, and a smashed window in the front. He agreed he had no personal knowledge of the cause of this damage. He said he was informed it was caused by the firefighters. He said he was told that the door had been locked, and was opened by a firefighter. His knowledge is, therefore, obviously hearsay. Neither of the two firefighters who entered the building to fight the fire testified. Cpl. Ross confirmed that the two other doors in the front were locked. He did not enter the crawlspace, and agreed with counsel that he did not know where it led. He did not know if the locks had been changed when Mr. Boucher purchased the restaurant. He did not know who, if anyone, besides Mr. Boucher and Ms. Brobbin had keys.
[28] Counsel agreed to the admission of certain banking records for Frank's Atlantic Eatery. The records show a number of cheques returned marked "NSF". Three of the four NSF cheques were in respect to payments to Sovereign General Insurance, apparently intended as payment for the property insurance.
[29] The Crown also referenced a number of e‑mail transfers into the company's account, apparently suggesting that Mr. Boucher had to invest further funds because the company was unable to meet its expenses. The restaurant had only been open for a short period in 2010.
[30] Ms. Fitzpatrick said the restaurant was open for about nine weeks in 2009 and reopened on April 10, 2010, some 11 days prior to the fire. Ms. Fitzpatrick was the only full‑time waitress. She said the week the restaurant was open in 2010, prior to the fire, was slow. She added that there was also a part‑time waitress who worked when the restaurant was busy.
Conclusion
[31] Although there was no evidence suggesting the restaurant was a thriving financial success, there was likewise only limited evidence to suggest, or support the suggestion, it was a financial albatross.
[32] Capt. Hunt acknowledged, on cross‑examination, that depending on the scene, on arrival the doors and windows are not always checked to see if they are locked. The people who conducted the perimeter viewing on his instructions, reported that all windows and doors were closed. There was no admissible evidence that all windows and doors were locked, prior to entry by the fire attack team. The two members of this team did not testify.
[33] The fire investigation report prepared by Ron Thibeau, the Deputy Fire Marshal, was admitted into evidence by agreement of counsel. He concluded, after reviewing the three points of origin, that "as a result of this investigation, it is my opinion that the cause of this fire was incendiary in nature. The three points of origin which could not be connected and the presence of an ignitable liquid and no other source of ignition." Counsel agreed to the qualifications and report of Mr. Thibeau. Their agreement states that Mr. Thibeau's opinion was that the fire was deliberately set, for the following reasons:
1‑ There were three points of origin that could not be connected to one another.
2‑ The two points of origin inside the building had two definite pour patterns (indicating accelerant poured on the floor) as well as a very distinctive horse shoe pattern on the floor joist in the area of the diary(sic) bar.
3‑ At the second point of origin there was a noticeable odor of an accelerate.
4‑ At the second point of origin a melted gas jug was recovered.
5‑ Both points of origin also had burn patterns indicating a burn from the top down. Very common in fires with the use of accelerates.
[34] Also admitted by agreement of counsel was the report of the Forensic Science and Identification Services Laboratory. The report indicates that gasoline was detected on four exhibits removed from the scene, and notes that gasoline "is an ignitable liquid and could act as a fire accelerant."
[35] There is no dispute that the Crown has established all the elements of the offence, save only whether Mr. Boucher was the person who set the fire. If he was, then s. 435(2) could be applicable, in view of the existence of the property insurance.
[36] Counsel suggest that certain questions put to witnesses were speculative. For example, defence counsel asked a number of witnesses whether they knew how many keys there were to the restaurant, who had them and whether the locks were changed after Mr. Boucher bought the restaurant. There is no evidence as to whether the locks were changed, nor is there evidence as to who, apart from Mr. Boucher and Ms. Brobbin, had keys. There was a suggestion that Mr. Boucher's lawyer might have had keys. There was no evidence as to whether this was the case.
[37] Another area of alleged speculation is as to whether there could be entry into the restaurant from the crawlspace at the back. Defence counsel questioned a number of witnesses as to whether they had entered it or could say where it led. There is no evidence as to whether entry into the restaurant could have been made through the crawlspace.
[38] Some witnesses were asked by Crown counsel on their opinion as to how the restaurant was performing. Essentially, their evidence was that they did not know. There was evidence from Mr. and Ms. Brobbin that they thought the restaurant was doing okay. Crown counsel referred to financial records to suggest that there were some NSF cheques issued, and speculated that it was Mr. Boucher who had e‑mailed transfers of cash into the company's account. While it is likely that it would have been Mr. Boucher who did this, there is no evidence to that effect. The only bank records entered were those of the company, which did not identify the source of the e‑mail transfers.
[39] The Crown has established that Mr. Boucher owned the restaurant and that he experienced some frustration in getting the business going, relating to problems with the property and with some NSF cheques on the corporate bank account. I am satisfied that he did say (to the Brobbins) words to the effect that it would be better for him if it burned. This was apparently said at a time when he was experiencing some frustration.
[40] Can it be said, in such a circumstance, that the Crown has proven that Mr. Boucher was the person that set the fire?
[41] The evidence that Mr. Boucher set the fire is circumstantial. The Crown refers to R. v. White (1994), 130 N.S.R. (2d) 143, where the Court of Appeal substituted a conviction for an acquittal on a charge of impaired driving causing death, on the basis that the alternative explanations referred to by the trial judge were “...not based on evidence but based on conjecture and speculation totally inappropriate to the evidence and the finding of impairment....”(para. 53) The court added that “...there is a distinction between conjecture and speculation on the one hand and rational conclusions from the whole of the evidence on the other....”(para. 57) In White, the trial judge’s error was to speculate as to the alternative explanations for running off the road where the driver’s impairment had been established by evidence other than from evidence of his driving. That is not analogous to the present case, where there is no direct evidence that Mr. Boucher set the fire, and the question is whether the circumstantial evidence is sufficient for conviction. In effect, the conjecture in this case would favour conviction, not acquittal.
[42] In White, supra, the Court of Appeal, finding the trial judge had speculated on what may have occurred in finding the accused not guilty, overturned the acquittal and entered a guilty verdict.
[43] Here the Crown and the defence have suggested, directly or by inference, that the court speculate as to what were the circumstances. The defence, in questioning witnesses about their knowledge of keys to the property, and possible access through the crawlspace behind and underneath the building, effectively is suggesting that others, beside Mr. Boucher and the persons identified as having keys, may have had access. The Crown referring to the evidence that the doors and windows were closed, and that the front door was also locked suggests that the court should speculate to the contrary, i.e., that no one else had access. Neither speculation is appropriate. The discussion on whether Mr. Boucher was the person who set the fire, is to be made on the basis of the evidence, or lack of evidence, not on speculation as to what might have been the evidence, if there had been any. It is not for the court to speculate on whether there were any other keys or whether or not all the windows and doors were locked or whether entry could have been made through the crawlspace.
[44] The evidence is circumstantial as to whether it was Mr. Boucher who set the fire. Though a person may be found guilty on the basis of circumstantial evidence, the law is clear that to do so the guilt of the accused must be the only reasonable inference to be drawn from the proven facts. MacIntyre J. said in R. v. Yebes, [1987] 2 SCR 168, in order to convict on purely circumstantial evidence, the "...circumstances must be consistent with guilt and inconsistent with innocence...."(para. 24). Such is not the case here. Mr. Boucher may have set the fire, but it cannot be said from the proven facts that the Crown has established beyond a reasonable doubt that he in fact did set the fire. I note the comment in Yebes that "...evidence of motive alone would not be sufficient to base a conviction and coupling opportunity with motive in the absence of other evidence would not advance the case unless there were evidence of exclusive opportunity...." (para. 26). There was no such evidence here.
[45] The circumstances by no means lead to the conclusion that no other inference can reasonably be drawn. Admittedly, no other suspect has been identified, at least in the evidence. However, as already noted, the law does not require an accused to establish who did commit the offence, if not himself, nor does it require the accused to explain the Crown's evidence. The evidence is that Mr. Boucher had opportunity, motive and apparently at some point when he was experiencing some frustration, had said it would be better if the property burned. The persons who heard this, and told the police, also said they did not, in effect, take it seriously. The evidence of financial difficulty with the restaurant is certainly inadequate, and to the extent there was any real evidence, some witnesses indicated it was doing poorly while others said they thought it was doing okay.
[46] As stated in Yebes, supra, motive and opportunity alone, absent evidence of exclusive opportunity, are not by themselves sufficient basis to justify a conviction. The evidence establishes that Mr. Boucher could have set the fire, not that he in fact, beyond any reasonable doubt, did set the fire.
MacAdam, J.