2011 ONCJ 249, 2011 ONCJ 249

FRIDAY, MARCH 11, 2011 R E A S O N S F O R J U D G M E N T MAUND, J. (Orally) : [ 1 ] The accused before the Court, James Cassidy, stands charged that on or about the 14th day of August, 2009, at the Town of Caledon, being in control of property, to wit: a dwelling house situate at 13351 Chinguacousy Road, he did unlawfully, as a result of a marked departure from the standard of care that a reasonably prudent person would use to prevent or control the spread of fires, cause a fire in the said dwelling house, which fire did damage the property of Carol Lyons, James Lyons, Danielle Ottlyk and Martin Ottlyk, contrary to Section 436(1) of the Criminal Code of Canada . [ 2 ] The trial proceeded on November 29th, 2010, and is before the Court today for Judgment.

On the trial date, Mr. Cassidy entered a plea of guilt to the offence of unlawful production of marijuana contrary to Section 7(1) of the Controlled Drugs and Substances Act . The Court made a finding of guilt on that charge, pursuant to a series of admissions made by the accused in support of his plea, and those factual admissions are part of the record for the purpose of this trial. Mr. Cassidy acknowledged that on the date in question, he resided, or had resided until the fire, in one of the apartments on the subject property with Irene Gryski.

At approximately 9:00 a.m. on August 14th, 2009, the fire department in Caledon responded to a fire call at this property on Chinguacousy Road in Caledon . During the investigation into the fire, officials determined that a marijuana grow operation was located in the apartment formerly occupied by Mr. Cassidy on the second floor. A warrant was executed. The police seized eleven marijuana potted plants along with five seedlings totaling one hundred and fifty-six grams, and five pots of seedlings along with vials containing cannabis resin.

And later in the investigation the accused acknowledged to the investigating officer that he was entirely responsible for the grow operation in the house. Mr. Cassidy was remorseful and entirely forthcoming concerning his responsibility in that regard. [ 3 ] The Court heard the evidence of the investigating officer, Detective Constable Scott MacPhail of the O.P.P. And he arrived at the scene at approximately 3:52 p.m. on August 14th. Based on information from the fire officials with respect to a marijuana grow operation, he obtained a tele-warrant to search the premises. He ascertained that Mr.

Cassidy, along with Ms. Gryski, had been tenants of the second floor of this property since December, 2007. [ 4 ] At 6:34 p.m. the officer spoke with Mr. Cassidy, who he described as very upset. The Defendant made the following statements to DC MacPhail at that time. "It's my fault. I quit doing it but I forgot to unplug it." And then subsequently, "I was growing but I failed. That's why I stopped. I want to co-operate. I am not a bad guy." In addition he indicated that, "Irene has nothing to do with this. Everything in there is mine." And that is the end of the quotation from Mr.

Cassidy. [ 5 ] Subsequently, on August 17th the officer entered the building together with a fire inspector from the office of the Fire Marshall. He made observations of the marijuana plants and related equipment and paraphernalia in the master bedroom. [ 6 ] The fire inspector, Douglas Horn, made a search of this residence. He was qualified as an expert in fire scene investigations, which included the assessment and examination of fire scenes and the determination of the origin and potential cause of fires. His report into this investigation was filed as Exhibit "2".

This witness filed a series of photographs which showed the areas of damage in the residence relevant to his inquiry. [ 7 ] Those photographs illustrate the charred contents of what was formerly the apartment occupied by Mr. Cassidy. High-

powered fluorescent lights and related equipment were used to facilitate the growth of the marijuana plants. Also shown was what was described as an electrical ballast required to provide high intensity power to such electrical devices. The growing lights in question (or what remained of them) contained high powered sodium bulbs which reach very high temperatures when in use. [ 8 ] The photograph filed as Exhibit "3-J" is a close-up of the heavily charred baseboard on the floor. Mr. Horn identified this area as the area of origin of the fire.

The main focus on the part of the investigator was to attempt to locate what he described as "competent ignition sources" for the fire. Three potential ignition sources were identified by this witness as set out in page 9 of his report: 1. The possibility of accidental ignition as a result of failure of the extension cord passing through the area of origin; 2.

The possibility of accidental ignition of combustibles on the floor as a result of heat generated by the high intensity bulb lying in the area of origin; (That is to say, this heat source falling or coming into contact in some way with combustibles); 3) The possibility of accidental ignition as a result of heat from the high intensity bulb causing the insulation on the extension cord to fail resulting in ignition as a result of electrical arcing. [ 9 ] Mr.

Horn indicated on cross-examination in relation to the extension cord possibility (that is the first theory) that even if the cord had been used legitimately (that is my word), it would have been a potential cause of the fire. [ 10 ] The last witness for the Crown was Eerik Randsalu, who is a fire protection engineer with the office of the Fire Marshall. Mr. Randsalu was qualified as an expert in the assessment and examination of fire scenes.

In addition, his expertise extends to investigation into electrical supply and distribution and the examination of power receptacles and related devices for electricity in relation to fire scene investigation. His Curriculum Vitae is set out in Exhibit "4", and the witness entered and adopted his report as Exhibit "6". [ 11 ] During his initial investigation, Mr. Randsalu examined the electrical service and panels in the basement of the house. He determined that there was no malfunction in the essential electrical service of the house which may have contributed to the cause of the fire.

The witness introduced a series of photographs and close-ups in relation to the damage within the room where the fire was started. [ 12 ] Photograph 5'J' shows the wall plug receptacle in the northeast corner of the room with a plug inserted. The receptacle area is shown to be heavily charred and the insulation essentially burned away from the power cord. Photographs 5'K' and 5'M' show the plug in the wall receptacle and cord attached to a timer which leads to the ballast box. The electrical extension cord leads to the sodium lamps.

Photograph 5'O' demonstrates beads of copper on the electrical cord which were said to have been caused by a short circuit. The conclusion of the expert in that regard was that the cord was energized when the damage was caused. Mr. Randsalu testified that he believed that it was more likely that the damage to the cord was caused by the fire externally and not by the electrical arcing generated from the cord itself. [ 13 ] The ballast box was required to operate and control the high intensity sodium lights in use. The box itself did not show fire damage or signs of apparent overheating.

The witness testified that the high intensity sodium light fixture operates in temperatures as potentially high as 410 degrees Celsius. He indicated that if these bulbs were to come into contact with combustible items it would readily cause ignition. And Mr. Randsalu found significant fire damage in the area where the remains of the bulbs were found. He noted that a bulb was found less than one foot from the damaged electrical cord.

[ 14 ] Mr. Randsalu's conclusions as set out on page 11 of his report were as follows: "The electrical branch circuit wiring and components in the area of origin were not fire damaged and did not exhibit failures. The only electrical device that was plugged in was a ballast energizing a high pressure sodium lamp. Arcing damage was observed to the ballast power cord.

The mechanism that caused the arcing to occur could not be determined, however, in order for the damage to occur, the ballast must have been energized at that time." [ 15 ] The expert acknowledged on cross-examination that it was most likely that the sodium light was suspended before the fire, although he did not and could not know how the light may have been configured. He indicated that he could not determine what caused the short circuit to occur on the damaged electrical cord. And further, that it may have been the electrical cord itself which caused the short circuit.

In relation to this potential failure of the electrical cord as a cause of the fire, the witness agreed that while this was possible, he believed that it was less likely as a potential source. [ 16 ] And finally, Geoffrey Dick, a fire protection specialist with the Fire Marshall's office, gave evidence for the Crown. Mr.

Dick attended the property on August 17th in search of potential Ontario Fire Code violations. [ 17 ] This witness determined that one violation that he found was in respect of an inoperative smoke alarm on the second floor of the residence outside of the sleeping area which did not have batteries. Mr. Cassidy subsequently was charged and entered a plea of guilt on May 27th, 2010, to an offence in relation to this fire code regulation, which was contrary to

Section 28 of The Fire Protection and Prevention Act , 1997. Exhibit "7" is a certified copy of the Provincial Offences Act information. I note that in the information, Mr. Cassidy is described as the owner of the Chinguacousy Road property, but was actually a lawful tenant of the apartment at the time of the fire.

The building was shared with other tenants, however there is no evidence as to the responsibilities for the parties residing in that house in the evidence at trial. [ 18 ] Section 436(1) of the Criminal Code reads as follows: "Every person who owns, in whole or in part, or controls property is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years where, as a result of a marked departure from the standard of care that a reasonably prudent person would use to prevent or control the spread of fires or to prevent explosions, that person is a cause of a fire or explosion in that property that causes bodily harm to another person or damage to property."

There have been very few authorities to guide trial courts in relation to this provision in the Criminal Code. Counsel havereferred me to the appeal decision of R. v. Harricharan, and it is cited in a number of cases, but the cite I am putting on the record is, (ON CA), 23 O.R. (3d) 233, a decision of the Ontario Court of Appeal. The Defence submits that there is an issue ofinterpretation arising from the wording of Section 436(1), and that is that the delict should be read as preventing or controlling the spreadof fires.

So, the argument is, that it should be understood as relating to conduct to limit the spread of fires only and not preventing firesgenerally. The Crown takes the view that the first use of the word "prevent" in the

section must be read disjunctively. And that is, thatthe duty imposed upon a person is threefold: To prevent fires and/or control the spread of fires and/or to prevent explosions. [19] Harricharan does not deal with this issue directly. Mr. Zaduk refers the Court to paragraph 42 and 43 of Chief JusticeMorden's reasons where the Court concludes that the 1990 amendment expands the duty to controlling the spread of fires. [20] The Court of Appeal in Harricharan dealt with a fact situation where the accused did not control the spread of a fire whichhad already commenced. It was that type of fact situation.

It was not a case where it was alleged, as here, that the accused had a role instarting the fire. All three Justice's of that panel agreed in the result that, as stated by Justice Catzman at paragraph 52(b): "...in a prosecution under s.436(1) the Crown must prove a causal connection between the accused's breach of duty, the resulting spread, and the bodily injury or damage to property." [21] The majority view also was that the

section imposes a duty to control the spread of fire, even if the fire may have beencaused by some other agency. [22] As I interpret this section, it imposes three separate duties to prevent fires, to control their spread and to prevent explosions. That, in my view, is the plain and ordinary meaning of the words as I understand them. And the reasons of the Court in Harricharan,read as a whole and in context, in my view, do not lead me to a restrictive

interpretation as advanced by counsel. [23] The prohibited conduct, accordingly, is that a fire and resulting damage be caused "as a result of a marked departure fromthe standard of care that a reasonably prudent person would use to prevent or control the spread of fires." The actus reus of the offence,as alleged on these facts, was the neglect of a public duty by the controller of the property, in this case the tenant, to meet his standard ofcare to prevent fire. [24] On the facts before me, Mr. Cassidy took immediate responsibility for the fire in his statement to the officer and he was verycandid.

In his words: "It's my fault. I quit doing it, but I forgot to unplug it." Now, the accused was running, albeit with limitedsuccess, a marijuana grow operation in a private residence. He was using high intensity grow lights which were connected into anintensifier ballast box and a timer. It is not difficult for the Court to find that such lights, which operate at abnormally high temperatures,are inherently dangerous when operated in the confines of a small apartment within a house. Any reasonably prudent person wouldreadily understand the risks involved. And those risks appear to have been understood by Mr.

Cassidy who, in his statement, associatedhis fault with his failure to unplug the apparatus. [25] The fire investigators concluded that the lights, ballast and timer were connected and operational when the fire commenced. However, these experts were unable to state which of three potential ignition sources were the actual cause of the fire. One such sourcewas the potential failure of the electrical cord leading to the lights. While Mr.

Randsalu could not rule this out, he believed it wasunlikely as the source. [26] The Defence submits that the potential failure of the electrical cord as a cause of the fire, one of three theories, establishes

that this charge cannot be proven by the Crown. And further, that even if the fallen lights were the actual cause of the fire, it was not foreseeable that the suspended lamps might fall and cause ignition. [ 27 ] With respect, I cannot agree with that argument. What must be proven beyond a reasonable doubt in this

section of the Criminal Code , is the breach of public duty, the general neglect of that duty, which was the cause of the fire. That is to say, negligence. Even in the event that the fire started from the electrical cord when attached to the ballast and lights, this was an inherently dangerous exercise in any circumstances. The high intensity lights were in operation when the fire occurred. That was established.

And as for such lights falling and potentially coming into contact with something which might start a fire, that was a readily foreseeable risk in my view. [ 28 ] While the decision of the Ontario Court of Appeal in Harricharan did not deal explicitly with a fact situation relating to the prevention as opposed to the spread of fire, I understand those reasons to support the proposition that, if the Court finds the accused in breach of his duty, he may be found liable even if the actual cause of the fire was by some other agency.

On these facts, even a potential failure of the electrical cord as a cause of the fire does not exempt the accused from his neglect and reckless behaviour in setting up these dangerous and unlawful appliances in his home. [ 29 ] Finally, I make no inference from the evidence of the faulty smoke detector in the home. While Mr. Cassidy entered a plea of guilty to this provincial offence, I am not clear as to his responsibility as an "owner" for that area of the shared house. Would you stand up, Mr.

Cassidy, please. [ 30 ] Sir, for these Reasons, in the result, I am satisfied the Crown has established guilt beyond a reasonable doubt and I make a finding of guilt. ********** THIS IS TO CERTIFY that the foregoing is a true and accurate transcription of my recordings, to the best of my skill and ability. Barbara-Ann Thompson Barbara-Ann Thompson, C.C.R.

Information No: 09-1094 Citation: R. v. Cassidy , 2011 ONCJ 249 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN - and - JAMES CASSIDY ********** R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE, MR. JUSTICE D.B. MAUND on March 11, 2011, at ORANGEVILLE, Ontario **********

APPEARANCES : J. Rodger, Counsel for the Crown M. Zaduk, Counsel for Mr. Cassidy ********** (

i) Table of Contents ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S Page REASONS FOR JUDGMENT 1 - 13 **********

Transcript Ordered: March 11, 2011 Transcript Completed: March 29, 2011 (Draft) Ordering Parties Notified: Released April 4, 2011