R. v. Gareau, 2020 ONCJ 489

ONTARIO COURT OF JUSTICE CITATION: R. v. Gareau , 2020 ONCJ 489 DATE: 2020 07 21 COURT FILE No.: 17- 6178 BETWEEN: HER MAJESTY THE QUEEN — AND — AARON GAREAU Before Justice Angela L. McLeod Heard on March 2, 3, 4, 9, 2020. Reasons for Decision were to be released on April 28, 2020 but delayed due to COVID 19 – released on July 21, 2020.

Michael Cousineau............................................................................ counsel for the Crown Jason Robinovitch.............................................. counsel for the accused Aaron Gareau McLeod J.: GENERAL OVERVIEW [ 1 ] In August 2016, the Alliston Feed Mill was destroyed by a fire. The mill was in the middle of a residential area, approximately 50 feet from surrounding townhouses. [ 2 ] The Fire Marshall’s office determined that the fire started in an uncovered, outdoor, metal, commercial, recycling bin, located beside the loading bay.

The loading bay was covered by a cedar shingle overhang. The fire travelled up the support post, to the roof and then to the mill. The fire was started via an open flame. The conclusion of the Fire Marshall’s office was that the only source of an open flame in that area was by human intervention. [ 3 ] Aaron Gareau was seen at the Mac’s convenience store, located approximately 300 meters from the mill, in and around the time of the fire. [ 4 ] Mr. Gareau made several statements to police. The voluntariness of each is admitted, and each was filed as a transcript. He denied starting the fire.

BACKGROUND [ 5 ] In 2016, Bryanna Addis was living with her parents and occasionally staying with Aaron Gareau or Dillon Wilson or Eric Thieman. She also stayed at other residences. [ 6 ] Bryanna had been dating Aaron Gareau. During the relationship between Aaron and Bryanna, the two would attend a local conservation area and sit by a bond fire. In April 2016, at the time of their break up (months before the fire at the mill), Aaron sent Bryanna a video of himself putting some of her clothes and belongings into a bond fire at the conservation area. At another point post

break up, Aaron had sent multiple pizzas to Bryanna’s residence. [7] She broke up with Aaron to date Eric Thieman; then, cheated on Eric with Aaron approximately two weeks before the fire. Onthe night in question, she was out with Eric, discussing the possibility of getting back together, when they crossed paths with Aaron. Words were exchanged and the parties separated. [8] Shortly thereafter, Eric and Bryanna parted company. Bryanna once again crossed paths with Aaron. She testified that on thissecond occasion, Aaron said “[something] is on fire”.

She further testified that while the fire was burning, Aaron sent her a text messagethat read, “do you believe in the devil?”. [9] On the night in question, Bryanna had made plans to spend the night at the home of Amber Holderny.

At some point in theevening, her plans changed, and she went to stay at the home of Dillon Wilson. [10] A few weeks prior to the night of the fire, Aaron Gareau had been to Dillon Wilson’s residence with Bryanna Addis. [11] Dillon Wilson’s residence was adjacent to the Alliston Feed Mill. [12] The Crown’s theory is that Aaron Gareau knew that Bryanna Addis was spending the night at Dillon Wilson’s residence, andstarted the fire to send her a message.

PURPOSE OF PRELIMINARY INQUIRY [13] Section 548(1) of the Criminal Code allows a judge conducting a preliminary inquiry to order the accused stand trial or that sheor he be discharged. It states:

(1) When all the evidence has been taken by the justice, he shall (

a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence inrespect of the same transaction, order the accused to stand trial; or (

b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for theoffence charged or any other indictable offence in respect of the same transaction. [14] The primary purpose of a preliminary inquiry is to serve as a screening process, to ensure that trials only occur where there issufficient evidence (R. v. Russell, 2001 SCC 53 , [2001] 2 S.C.R. 804 (S.C.C)). ROLE/FUNCTION/JURISDICTION OF PRELIMINARY INQUIRY JUSTICE [15] The presiding justice must accept as a fact any direct evidence proffered by the Crown.

She may not evaluate the credibility orreliability of the source. [16] The presiding justice must accept as a fact any circumstantial evidence proffered by the Crown. She may not evaluate thecredibility or reliability of the source (R. v. Acuri, 2001 SCC 54 , [2001] 2 S.C.R. 828 (S.C.C.). [17] Circumstantial evidence serves to support a conclusion. There is an inferential gap between the evidence proffered and the factto be established.

The presiding justice must weigh this evidence, to a limited degree, in order to assess whether it is reasonably capableof supporting the inferences that the Crown asks the jury to draw (Arcuri, supra). [18] If there is more than one inference to be drawn based on the evidence, the presiding justice must not choose which she prefers,but instead only the inferences that favour the Crown are to be considered (R. v. Sazant, 2004 SCC 77 , [2004] 3 S.C.R. 635). [19] The inferences do not need to be compelling or easily drawn in order to be reasonable.

The presiding justice must draw anyreasonable inference in favour of the Crown, regardless of its strength (R. v. Munoz (2006), (ON SC), 205 C.C.C. (3d)70 (ONSCJ)). Inferences must arise from the evidence and cannot be based on conjecture or speculation (Sazant, supra). TEST FOR COMMITTAL [20] The test for committal is the same as the test applied by a trial judge considering a civil motion for non-suit or a defence motionfor a directed verdict (United States v. Shepard, (SCC), [1977] 2 S.C.R. 1067 (S.C.C.), R. v. Acuri, 2001 SCC 54, [2001] 2 S.C.R. 828 (S.C.C.), R. v.

Fontaine, 2004 SCC 27 , [2004] 1 S.C.R. 702 (S.C.C). [21] The presiding justice must consider the “whole of the evidence”, when determining whether the Crown has adduced sufficientevidence to meet the test (R. v. DesChamplain, 2004 SCC 76 , [2004] 3 S.C.R. 601 (S.C.C.)). [22] In R. v. Wilson, 2016 ONCA 235, Benotto J.A. stated: The test is the same whether the evidence is direct or circumstantial. However, with circumstantial evidence, there is an inferential gapbetween the evidence and the matter to be established.

The question becomes whether the elements of the offence to which the Crownhas not advanced direct evidence may reasonably be inferred from the circumstantial evidence. The preliminary inquiry judge must therefore engage in a limited weighing of the evidence to assess whether it is reasonably capable ofsupporting the inferences that the Crown asks the jury to draw. This does not entail considering whether he or she would conclude thatthe accused is guilty. Nor does the judge draw factual inferences or assess credibility.

Rather, the preliminary inquiry judge asks whetherthe evidence, if believed, could reasonably support an inference of guilt: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828.

Any reasonable

interpretation or permissible inference from the evidence, beyond conjecture or speculation, is to be resolved in theprosecution's favour. At the preliminary inquiry stage, if more than one inference can be drawn from the evidence, only the inferencesthat favour the Crown are to be drawn: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635. To weigh competing inferences is to usurp thefunction of the trier of fact: R. v. Clarke (2002), (ON CA), 159 O.A.C. 221. ISSUES TO BE DECIDED AND SUBMISSIONS [23] The Crown’s case comes down to identity. Who started the fire?

Motive and opportunity can establish some evidence ofidentity. [24] The Crown theory is that Aaron Gareau started the fire in order to send a message to Bryanna Addis. [25] The Crown seeks to have the court come to this conclusion by drawing an inference. The inference is to be drawn only afterseveral facts are established:

(1) Aaron Gareau sent Bryanna Addis a video recording of him burning her personal belongings, in order to convey a message andexpress his feelings about their break up (not in issue, Bryanna’s viva voce evidence establishes this fact);

(2) Aaron Gareau knew that Bryanna Addis would be staying at Dillon Wilson’s residence, located next to the mill, on thenight in question;

(3) Aaron Gareau was at the Mac’s convenience store, located approximately 300 meters from the mill, before and after theestimated time of the fire starting (not in issue, store security camera footage establishes this fact). [26] Bryanna Addis had a fluid residential situation. She was not dating Dillon Wilson. She had been seen in the company of Eric,not Dillon, on the night in question. Bryanna ‘believed’ Aaron had left a backpack at Dillon’s house weeks before when she waspresent.

Belief is not evidence, even at the preliminary inquiry stage of the proceedings. [27] Bryanna Addis had made plans to stay at another friend’s house. At some point she changed her plans and went to stay atDillon’s house. There is absolutely no evidence that Aaron Gareau knew anything about the original or the changed plans.

There is noevidence that Aaron Gareau knew or could have known that Bryanna was staying at Dillons house, adjacent to the mill. [28] Aaron Gareau had expressed his feelings to Bryanna about their break up in a number of different ways, including burning herbelongings, sending numerous pizzas to her house fraudulently, and through text, Facebook and verbal messages. There was not oneconsistent manner of communication. The Crown did not bring a similar fact/act application but did submit that there is some evidenceof similar act that should be left to a jury, and if accepted would result in a conviction.

For reasons noted, I disagree. [29] The Crown did not bring a post offence conduct application but submitted that there is evidence of material inconsistenciesbetween the three statements made by Aaron Gareau, that could meet the test for admissibility. This submission was not supported byargument or fact. No specific examples of inconsistencies were highlighted. The Crown choose to simply leave over 700 pages oftranscripts filed as exhibits, with the Court to review. No reference was made to those pages.

After a thorough review, I could not findany inconsistencies. [30] Tanner Graves was also out and around the area at the time of the fire. He testified that he was using large amounts of drugs atthe time, and ultimately could not say whether he started the fire. Aaron Gareau did not have exclusive opportunity to start the fire, butthis would be for a jury to decide. [31] A review of all the evidence, taken as a whole, makes the Crown’s theory nothing more than speculation. The inference soughtto be drawn cannot be drawn as the primary facts have not be established.

CONCLUSION [32] The Crown has failed to carry the burden established in Sheppard on the issue of identity. Mr. Gareau will not be committed tostand trial in the next court of competent jurisdiction. Released: July 21, 2020 Signed: Justice Angela L. McLeod