R. v. Filipowicz, 2010 ONCJ 621

COURT FILE No.: Halton 1211 09 3934 DATE: 2010·12·17 Citation: R. v. Filipowicz , 2010 ONCJ 621 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — MICHAEL FILIPOWICZ Before Justice R.

Zisman Heard on October 18, 19, 2010 Reasons for Judgment released on December 17, 2010 Agata Tasson ............................................................................................................. for the Crown Peter Craniotis ............................................................................ for the accused Michael Filipowicz ZISMAN J.: INTRODUCTION [ 1 ] The defendant is charged that on August 27, 2009 he caused damage by fire to the motor vehicle of Jonathan Leigh Thomas, contrary to

section 434 of the Criminal Code . He is further charged that he was in possession of incendiary materials that is, an explosive substance for the purpose of committing arson contrary to

section 436.1 of the Criminal Code . [ 2 ] The defendant was one of three individuals arrested after the police received a 911 call that a motor vehicle was set on fire at 341 Wilson Avenue in Milton, Ontario. The defendant and two other individuals were located close by, shortly after the incident. At the scene the police located three bottles of Nestea filled with gasoline that were used as a Molotov cocktail to cause the fire. [ 3 ] The issues of date, jurisdiction and identification were admitted . EVIDENCE AT TRIAL [ 4 ] Ken Mayes lives in a townhouse complex at 341 Wilson Avenue in Milton.

He testified that on August 27, 2009 at about 2:50 a.m. he heard a loud noise that sounded like a bomb. He jumped out of his bed and looked outside his bedroom window that was open. He saw three young men and what looked like two parked cars on fire, one was grey and the other one was red. He saw the three young men standing in front of the grey car. They were talking loudly and he heard someone say, “Is this the car?” [ 5 ] He called 911 and ran outside. The red car was not on fire.

He grabbed his fire extinguisher from his garage and put out the fire on the driver’s side of the grey car. [ 6 ] By the time he went outside, the three men were gone. He did not see anyone throw anything. He could not identify the men except that they were about 20 to 21 years old, white and about 6 feet tall. He could not identify their clothing. On the grass he saw what looked like glass bottles with wicks. [ 7 ] Avdar Singh was driving a taxi in the morning of August 27, 2009. He was dispatched to 740 Woodward Avenue in Milton at 3:03 a.m.

He arrived at that address at 3:10 a.m. and picked up three males who were standing outside on the sidewalk. He was told to drive the three men to the Best Western Hotel. Within several minutes, he was pulled over by the police and asked to step out of the taxi and questioned about when and where he picked up the three men. Mr. Singh testified that he did not smell gasoline or pay any attention to anything the three men were saying while they were in the taxi.

His testimony was not clear as to where the men were seated or if he spoke to the officer inside or outside of his taxi. [ 8 ] Constable Ron Strauch is a member of the Halton Regional Police Service and was on uniformed patrol in the early morning of August 27, 2009. He received a call from dispatch about a car being on fire. He arrived at 3:05 a.m. at 341 Wilson Avenue and saw a silver car on fire that Ken Mayes was trying to put out with a fire extinguisher. Constable LaChappelle arrived on the scene a

few minutes later and she stayed at the scene while Constable Strauch went to look for the males based on the information he received from Mr. Mayes. [ 9 ] At 3:21 a.m. Constable Strauch stopped a taxi with three young males on Woodward Street which was close to the vicinity of the fire. After a short discussion with the taxi driver, he opened the rear door of the taxi and smelt gasoline in the taxi. He did not smell gasoline when the men were standing outside of the taxi. The three males verbally identified themselves as Peter Lawrence, Mike Filipowicz and Daniel Thibault.

The defendant was seated in the middle back seat. [ 10 ] Based on their lack of plausible explanations about what they were doing in the area, Constable Strauch felt he had probable grounds and arrested them all. He heard Daniel Thibault tell the others not to say anything. He transported Mr. Thibault to the police station and other officers who had arrived on the scene transported the others. The clothing of all three of the men was seized. [ 11 ] Constable Bilton was in charge of seizing the clothing from all three of the men.

He concurred with Constable Strauch that when the men were in the police cells the smell of gasoline emanated from all three of them. [ 12 ] The defendant was wearing an Orlando basketball shirt and a black t-shirt underneath. When Constable Bilton removed the clothing of the defendant he smelt gasoline on the shoulder of his shirt. The others had the smell of gasoline on the sleeves of their shirts.

The clothing of all three of the men was kept separate, sealed in separate bags and never came into contact with the clothing of the others. [ 13 ] While the three men were lodged in separate cells, he could hear them yelling to each other and he heard one of the men say that he told the police that they were riding dirt bikes and not to say anything. Constable Bilton could not identify which of the men said anything. [ 14 ] Madeline Lambert testified that she was friends with Daniel Thibault (whom she called “Danny” or “Shady”) and Jonathan Leigh Thomas (whom she knew as “Leigh Thomas”).

She and her friend Valerie had arranged to hang out with them at the Best Western Hotel in Milton. She drove her car and they arrived at the hotel at about 11:00 p.m. Danny Thibault, Leigh Thomas and two young men, who she did not know, were there. She was told the two young men were from Scarborough. She identified one of them as the defendant. [ 15 ] Ms. Lambert testified that while they were deciding what to do, she decided to drive to her ex-boyfriend’s house to retrieve her necklace. She testified that Danny Thibult and the two men drove with her in her car and they were gone about 20 minutes.

She testified that Leigh Thomas was calling Danny asking for the keys to Leigh Thomas’ car that Danny had accidentally taken. They were swearing at each other and she heard Danny say, “I’m not going to be his little bitch.” When they arrived back at the hotel Leigh Thomas was standing beside his silver car and Danny went into the car to talk to him and then Danny came back and told her everything was fine. [ 16 ] Although they were invited up to the hotel, she and Valerie decided to go home and left at about midnight. [ 17 ] In cross-examination, Ms.

Lambert agreed that Leigh Thomas had called Danny two times while she was in the car and they were yelling, arguing and swearing at each other. After they returned, Danny Thibault and Leigh Thomas were in Leigh’s silver car for two to five minutes. She testified that she did not hear anyone talking about setting a car on fire. [ 18 ] Sargon Yonadam is the manager of the Esso gas station on 640 Martin Street in Milton. In response to a request from the police, he produced the video from his surveillance cameras for the evening of August 27, 2009.

He also produced a receipt for three Nestea drinks purchased at 12:53 a.m. on August 27, 2009. It was agreed that Danny Thibault was the individual who purchased the Nestea and that the individual seen at the gas pump who was wearing an Orlando basketball t-shirt and “McGrady” on the back was the defendant. But it was agreed that the defendant was not seen to purchase any gas. [ 19 ] Jonathan Leigh Thomas testified that he was the owner of two motor vehicles, a 2007 silver Dodge Magnum and a black truck that he used for work as a landscaper. He admitted his criminal record. [ 20 ] Mr.

Thomas testified that on August 27, 2009 he was on probation and one of the terms was that he was not to have any contact with Danny Thibault. He had arranged for Danny Thibault to come to Toronto to hang out with some girls but that plan never materialized. Mr. Thomas arrived at Byng Street in Scarborough to pick up Danny and his two friends whom he identified as the defendant and his younger brother, Randy. They then planned to drive to Milton to rent a hotel room at the Best Western.

They left Toronto at about 9:30 p.m., they picked up a woman and arrived in Milton at about 10:30 p.m. and rented room 223 at the Best Western Hotel. [ 21 ] He testified that Danny Thibault received a telephone call from the girls they were waiting for. He testified that Mr. Thibault left with the defendant and his brother and he stayed on the hotel room with the woman that they had picked up earlier. It was after 11:00 p.m. when he called Mr. Thibault as it was getting late and Mr. Thibault had his car keys. He was angry at Mr. Thibault for taking his keys and admitted that he probably swore at him.

He was in a hurry to return home since he had to work the next day, he was married and his wife was expecting a child and he did not want his wife to find out that he had sex with a women in the hotel room. [ 22 ] Mr.

Thomas testified that he had purchased the 2007 silver Dodge Magnum five or six months before for a total cost of $24,000.00 and it was financed for about $20,000.00. [ 23 ] He arrived home at about 11:15 p.m. and as his truck was in the driveway he parked it on Wilson Street and walked home. [ 24 ] The next morning, his wife returned from taking their daughter to school and when she returned she asked him where his car was and mentioned that she saw burnt debris on the street. Shortly after, he received a telephone call from Constable Peppler asking that he come to the police station.

[ 25 ] Mr. Thomas testified that he made a sworn statement to the police on August 27, 2009 at 8:48 a.m. He did not mention that he was with Danny Thibault or a girl or the defendant and his brother. He told the police he had seen Danny Thibault in Toronto a few days before. [ 26 ] Later that evening, the police came to pick him up and he gave a further sworn statement at 8:51 p.m. He was told he would be charged with obstruct justice and lying under oath. He gave a further statement and provided the same information as he did in his testimony.

He testified that he lied in his first statement because he was worried about his wife finding out about his infidelity. He was worried that he would be arrested for a breach of his probation since he was with Danny Thibault. He testified that he was not aware that he had admitted to being with Mr. Thibault in his first statement. [ 27 ] Mr. Thomas testified that he was never formally charged with either obstruct police or breach of his probation. He testified that he never asked anyone to burn his car. He testified that the insurance company only paid him $14,000.00 for his car.

He testified that he still owed $12,000.00 and as a result was forced to declare bankruptcy. [ 28 ] Mr. Thomas testified that he had not met the defendant before August 27, 2009. He had known Danny Thibault for three or four years and had may have met Peter Lawrence (who was later identified as Randy Filipowicz, the defendant’s brother) once before. [ 29 ] In cross-examination, Mr. Thomas agreed that his name was on the hotel receipt that was printed on August 27, 2009 at 9:39 a.m. He testified that he returned to the hotel after the police interview to see if anyone was still there.

When it was pointed out that the hotel receipt indicated that he parked a Ford F350, he testified that it was not true and that he only wrote Ford because he had difficulty spelling and easier to write “Ford” than “Magnum”. [ 30 ] He admitted that about a year earlier he had reported his car stolen from his townhouse complex and that it had been set on fire. He testified that he never mentioned this to the police before because he was not asked. He also denied that after Danny Thibault returned to the hotel that they spoke in his car as testified to by Ms.

Lambert. [ 31 ] Detective Constable Stephen Martin has been employed with the Halton Regional Police Service for 25 years and is an arson investigator. He was the investigator in this case and received custody of four property bags containing the clothing and other property of the defendant, Danny Thibault and Randy Filipowicz. Each person’s property was placed in a separate and sealed bag for processing.

A butane lighter was seized from Danny Thibault that he tested and it was 1/8 full of fuel and a ½ inch flame and had a missing wind guard. [ 32 ] Detective Constable Martin attended at the scene and observed scorch marks and dust from a fire extinguisher. He seized broken glass consistent with a motor vehicle side window, clear glass consistent with a Nestea bottle, a Nestea bottle cap and a metal windguard from a disposable lighter.

He observed that the front and rear passenger window of the motor vehicle was broken and there was glass at the floor of the driver’s side that was the same shape and size of the bottle seized by Constable Bilton. He determined that the source of the fire was from the driver’s seat area because of the burn pattern. He noted that the seat belt and console were melted and there was smoke damage of the rest of the car. [ 33 ] Detective Martin testified that he confirmed that Mr.

Thomas had registered in room 223 at the Best Western Hotel at 11:43 p.m. on August 26, 2009, he paid cash and gave his driver’s licence as identification and checked out the next day at 9:30 p.m. The hotel swipe card was found on Danny Thibault. A wallet was located by the chambermaid in room 223 and belonged to the defendant. [ 34 ] In cross-examination, Detective Martin testified that he did not know where in the hotel room the defendant’s wallet was located.

He also testified that the only lighter found was in the property of Danny Thibault. [ 35 ] With respect to the broken bottles, he found one in a gutter which he believed was from a Nestea bottle. There was a broken bottle in the car’s driver’s seat. He believed that Constable Bilton found a bottle at the scene that was handed to him but he was not certain as to where it had been found. [ 36 ] Constable Bilton’s evidence was introduced by means of an agreed statement of fact.

His statement indicates that at the scene he located and seized a glass bottle with gasoline inside the bottle and a burnt Nestea cap. [ 37 ] Detective Constable Mark Freeman has been a forensic investigator with the Halton Regional Police Service since October 2006. He is qualified as a forensic specialist. [ 38 ] On August 27, 2009 at 8:40 a.m. he was briefed by Constable Martin and seized four property bags, three contained clothing items and the other bag contained a Nestea bottle and cap.

He removed each item of clothing separately to contain any acceleration and to prevent cross-contamination since the bags were not air tight. He wore separate gloves to remove the items from each bag. He repackaged the items in the nylon see through bag and sealed the bags. He submitted the bags to forensics. He identified the various items of clothing that he bagged and sealed. [ 39 ] Constable Freeman attended at the crime scene with Constable Martin. He identified a Nestea bottle cap and a lighter wind deflector next to the west curb just north of where the car had been parked.

He located two pieces of glass next to where the car was parked. He found a blue rag and bottle in the car. He noted a yellowish tinged liquid on the driver’s side of the floor of the car and the obvious presence of the odour of gasoline in the motor vehicle. He tested all of the items tested for fingerprints but none were found. [ 40 ] In cross-examination, Constable Freedman confirmed that there were no identifiable fingerprints and he could not tell who held the bottle last.

He also confirmed that once items are put in clear plastic bags it cannot be determined where the gas is coming from. [ 41 ] Michael Harrison is employed as a forensic scientist with the Centre of Forensic Sciences. He was qualified as an expert in the examination of items from fire scenes including clothing, the property of ignitable liquids and the conclusions to be drawn from

the examination of these items. [ 42 ] Mr. Harrison was requested to examine the items seized by Constable Freeman to determine if the items contained volatile liquid. He explained that there were three possible findings he could make namely, gas is identified, trace amounts of gas are identified or no volatile or ignitable liquid is identified. If no gas is identified this can be the result of it not being present, it has evaporated or other products may have interfered. He also explained that if a trace amount is found this indicates an amount that is near or above detection levels.

If gas is identified it is not possible to quantify the amount. [ 43 ] Mr. Harrison was able to identify gas in the charred Nestea bottle seized from the scene by Constable Bilton. He also identified gas on the bottle and rag seized by Detective Freeman from the vehicle. He tested the contents of the Nestea bottle, located at the scene by Constable Bilton, to determine if the gas was mixed with mineral oil. He was able to identify gas in the contents of the Nestea bottle. Mr. Harrison explained that he did not test all of the items seized for mineral oil as such testing destroys any gas that is present.

He was therefore instructed to only test the contents of the Nestea bottle. The purpose of such testing was to trace back the gas found on the clothing seized to the gas found in the motor vehicle. But no such link could be established. [ 44 ] Mr. Harrison found gas on the shirt and clothing seized from Randy Filipowicz and only traces of gas on the shirt seized from Daniel Thibault and from the defendant. He found no volatile ignitable liquid on any other clothing seized from either Daniel Thibault or the defendant. He found no volatile ignitable liquid on the lighter wind deflector.

The other items seized were either not analysed or nothing was found on them. [ 45 ] When questioned about the possibility of transfer of gas from one item to another, Mr. Harrison explained that it is very unlikely that an item that has traces amounts of gas could be transferred to another item. [ 46 ] He was then questioned about the amount of physical contact that would be required to transfer the gas identified on Randy Filipowicz’s clothing to the defendant’s clothing, Mr.

Harrison could not quantify the amount of contact that would be required for such a transfer to occur but he testified that transfer was possible. [ 47 ] The defendant Michael Filipowicz testified. He stated he was 18 years old at the time of the offence. He testified that he was not home when Leigh Thomas and Danny Thibault came to his house. When he came home they were there with his brothers Randy and Keith. Danny Thibault asked if they wanted to go to a party in Milton. He testified that he had never met Leigh Thomas before but knew Danny Thibault as he was his brother Randy’s friend.

They left his house at 58 Byng Street in Scarborough at about 9:30 p.m. in Leigh Thomas’s car, a silver Magnum. They picked up a woman and arrived at the Best Western Hotel in Milton. He testified that Leigh Thomas and Danny Thibault checked into the hotel while he, his brother and the woman waited in the car. Although he was not certain of the time, he estimated it was about 10:45 p.m. [ 48 ] Leigh Thomas, Danny Thibault and the woman went upstairs and then Danny and the woman came down. The woman who he identified as Mattie (Madeline Lambert) said she wanted to go pick up her necklace.

Danny, his brother and him went with her and they drove around for about 20 minutes. Leigh Thomas called very upset because Danny had taken his car keys. When they returned to the hotel, Leigh Thomas was waiting outside. Danny and Leigh went into Leigh’s car and it looked like they were arguing and then Leigh drove off.

Mattie and the other girl who he identified as Valerie talked to Danny for about five to ten minutes and then they decided to leave. [ 49 ] He went upstairs into the hotel with Danny and his brother Randy and another woman was already there. [ 50 ] He testified that they walked to an Esso station that was about five minutes away and that Danny Thibault had bought them ice tea and they walked back to the hotel. It was about 1:00 a.m. They watched television and he put his wallet under the pillow and fell asleep. He was woken up a bit later by Danny to ask if he wanted to go to a party.

It was his understanding that they had booked the hotel so they could sleep there after the party in Milton. [ 51 ] He testified that Danny called a taxi and he told them that the party was close by. They exited the taxi and Danny paid. As they were walking Danny pulled a bottle out of the bag he was carrying and asked, “Are you down with torching Leigh’s car?” He was pretty sure it was a Nestea bottle. His brother Randy was willing and took the bottle. He had no reason to do it and asked Danny what he was talking about. He tried to tell his brother not to do it.

Danny tried to push the bottle on him but he walked away. He saw Danny whip the bottle with a flame at the car. He did not see his brother throw the bottle. [ 52 ] He testified that he started to run and both his brother and Danny ran after him. Danny called a taxi. He did not know where he was and did not have a cell phone. He got into the taxi and sat in the back seat between Danny and his brother. They were stopped by the police a short distance later. Danny told them to say they were riding a gas operated motorbike.

The defendant testified that he told the duty counsel he spoke to that he made up the story about riding a motorbike and the duty counsel told him not to say anything else. [ 53 ] In cross-examination, he agreed that while he was in Ms. Lambert’s car, it was clear that Danny and Leigh were having an argument but he did not hear everything that was said. He testified that when Ms. Lambert and Valerie left in Ms.

Lambert’s car and then when Leigh Thomas left in his car, he did not have a car. [ 54 ] When cross-examined about the plans for that night, he testified that he did not know what plans were made earlier in the evening.

It was his understanding that they were going to a party in Milton to meet girls, that they would sleepover in the hotel after the party and that it was not his intention to spend the night in a hotel room. [ 55 ] He agreed that between the time Leigh Thomas left at about 10:00 p.m. and at about 2:00 a.m. when he was woken up by Danny Thibault, he never asked about where the party was or if they were still going to the party or any details about a party.

He testified that when he was woken up he was happy to go to a party and he was ready to go. [ 56 ] When the taxi dropped them off, he just followed Danny who told him the party was a few houses away. He agreed that

when they left the taxi, he did not see nor were they near any house that looked like there was a party going on. [ 57 ] When cross-examined about the car bombing, he repeated that he had no reason to car bomb Leigh Thomas’ car.

He agreed that when he saw Danny remove two bottles from the case he was carrying, he then knew that the bottles were going to be used as Molotov cocktails. [ 58 ] When cross-examined about where he was standing when the bottles were thrown at the car, he testified that he was standing behind the car on the grass, then he changed his evidence and testified that he was standing at the front but at the passenger side.

He disagreed with the evidence of Ken Mayes who testified that he was woken up by the sound of a smashing and saw three males standing in front of the grey Magnum, between that car and the red car that was in front of it. The defendant denied he was ever standing in front and between the two cars. [ 59 ] The defendant was aware that the car belonged to Leigh Thomas as he had been driven in the car from Toronto to Milton earlier that night. He further explained that he ran away and kept asking what was going on. Danny and his brother caught up to him and Danny called a taxi when they were about two blocks away.

He testified that he was angry and upset. But he had no cell phone, no money, it was 3:00 a.m. and had never been to Milton before so he got into the taxi to go back to the hotel. He agreed that it was stupid to get into the taxi with them but he was stranded and they told him that they were going back to the hotel and not to worry. GENERAL PRICINPLES [ 60 ] It is trite law that as this is a criminal charge, the defendant is presumed innocent. The onus is on the Crown to prove each and every element of an offence beyond a reasonable doubt.

The defendant does not need to prove that he is innocent and after considering all of the evidence I can only find him guilty if I am satisfied that the Crown has proven its case beyond a reasonable doubt. That degree of proof applies to each essential element of the charges. In R. v. Lifchus 1997 CanLII 319 (SCC) , [1997] 3 S.C.R. 320 reasonable doubt is explained as follows: “A reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice.

A reasonable doubt is a doubt based on reason and common sense which must logically be derived from the evidence or absence of evidence.” [ 61 ] As the defendant has given evidence in this case, I am also aware and remind myself that in evaluating issues of credibility, the analysis to be undertaken is in accordance with R. v. W. (D.) [1999] 1 S.C.R. 742 .

POSITION OF THE PARTIES [ 62 ] It is the theory of the Crown that Danny Thibault was the principal and that the defendant was a party to the act of arson that destroyed the motor vehicle of Jonathan Leigh Thomas. [ 63 ] It is submitted by the defendant that Jonathan Leigh Thomas was involved in arranging the firebombing of his own car. The court was asked to consider that Mr. Thomas was older than the defendant and Danny Thibault and Randy Filipowicz, he has a criminal record and he had another car that was allegedly stolen and burned.

It is the position of the defendant that although he was present when Danny Thibault threw the Nestea bottle at the motor vehicle, he did nothing to aid or abet him. It is submitted that the defendant had no prior knowledge of the plan and did nothing to assist in the destruction of the vehicle and in fact tried to talk his brother out of participating. [ 64 ] The Crown submits that the court should reject the defendant’s version of the events and reject his evidence that he was an “innocent dupe”. The Crown relies on the cumulative effect of the circumstantial evidence to implicate the defendant.

THE LAW [ 65 ] As the Crown’s case relies on circumstantial evidence, in order to find the defendant guilty of the offences with which he is charged, the court must be satisfied, beyond a reasonable doubt, that the only reasonable inference to be drawn from the circumstantial evidence is that the defendant is guilty. [ 66 ] Further, as the Crown’s theory is that the defendant is guilty as a party to the offence, the defendant must be found to have aided or abetted in the commission of the offences. [ 67 ] As explained in R. v. Almarales 2008 ONCA 692 (CanLII) , [2008] O.J.

No. 3937 (C.A.), participation by aiding and abetting has both a both conduct and fault requirement. The relevant statutory provisions are found in sections 21 (1) (

b) and (

c) of the Criminal Code . Section 21 (1) (

b) applies to aiders. A person is a party to a crime as an aider if that person: • Does (or, in the case of a legal duty, omits to do) something that helps the (or,

a) principal to commit the offence (the conduct requirement); and • Provides the assistance with the intention of helping the (or,

a) principal to commit the offence (the fault requirement). [ 68 ] Section 21(1)(

c) applies to abettors. Abetting also requires a conduct and fault element similar to those of aiding. A person is a party to a crime as an abettor if that person:

• Says or does something that encourages the (or,

a) principal to commit the offence (the conduct requirement), and • Offers the encouragement by words or conduct with the intention of encouraging the (or,

a) principal to commit the offence (the fault requirement). [ 69 ] It is well established that mere presence at the scene of a crime is not sufficient to find culpability. Something more is needed, encouragement of the principal offender;

an act that facilitates the commission of the crime such as keeping watch or

an act that prevents or hinders interference with accomplishment of the criminal act. (See R. v. Dunlop 1979 CanLII 20 (SCC) , [1979] 2 S.C.R. 881 at pages 7-8; R . v. Portillo 2003 CanLII 5709 (ON CA) , [2003] O. J. No. 3030 (C.A.) at para. 64 ). ANALYSIS [ 70 ] I make no findings as to whether or not Jonathan Leigh Thomas was involved in the firebombing of his own car. It is not relevant to the issues I must decide. [ 71 ] In this case, there is evidence that I accept that three males were present when the motor vehicle of Jonathan Leigh Thomas was fire bombed.

There is no eyewitness to anyone throwing the lit bottle. There is no dispute that the defendant was one of the males who was present. There is also no evidence as to which male was heard by Ken Mayes to say, “Is this the car?” [ 72 ] I agree with the Crown that the defendant was evasive and argumentative when being cross-examined as to where he was standing when the bottle was thrown. I accept the evidence of Ken Mayes that he saw three males standing in front of the silver Magnum and between the red car. However, Mr.

Mayes did not see any one throw the bottle, he got dressed and went into his garage to get his fire extinguisher and by the time he was outside the males were gone. [ 73 ] However, even if the defendant was standing in front of the car and stood by when either or both Danny Thibault and his brother threw the bottle that does not prove any positive act by him to assist or encourage the car bombing.

The fact the defendant was present or passively acquiesced to the firebombing is not sufficient evidence of aiding or abetting in the offence. [ 74 ] Presence at the commission of an offence can be evidence of aiding and abetting if accompanied by other factors such as, prior knowledge of the principal’s offender’s intention to commit the offence or attendance for the purpose of encouragement.

In this case, there is evidence that the defendant went with Danny Thibault and his brother to Milton with rather vague plans to attend a party, that he accompanied them to buy Nestea and that there was gas found in the contents of the Nestea bottle that was used to set fire to the motor vehicle of Mr. Thomas. [ 75 ] The defendant provided an explanation for his presence that evening in Milton and why he accompanied Mr. Thibault. The Crown submits that that defendant did not call any evidence to establish that there was a house party in Milton that evening and points out that Ms.

Lambert’s evidence was that she was told that she was going to a hotel party. It is of course trite law, that an accused does not have the burden of proving any element of the crime. However I accept that I can assess the defendant’s credibility by comparing his evidence to the other evidence of other witnesses. It is entirely plausible that the defendant and Ms. Lambert were told different things about the plans for that evening. The defendant’s explanations for his actions that evening are suspicious but I am left with a reasonable doubt that he was aware of the intention of Danny Thibault to set Mr.

Thomas’s car on fire. [ 76 ] I find that the defendant was sitting in the middle of the back seat of the taxi between Danny Thibault and his brother. I also accept the evidence of Constable Strauch that he heard Danny Thibault tell the others not to say anything. At the police station, someone said, “tell them were riding dirt bikes”, but there is no evidence as to who made this statement.

The defendant admitted that Danny Thibault told them to say they were riding dirt bikes and that he did make this statement to the police upon his arrest. [ 77 ] Based on the forensic evidence, there was gas found on the shirt of Randy Filipowicz and only traces of gas were found on the shoulder of the shirt of the defendant. It is possible on the evidence that I accept that the gas may have rubbed off onto the defendant’s shirt as he was sitting in the middle seat of the back seat of the taxi.

There is no evidence as to who bought the gas and no evidence that the defendant was aware or participating in buying the gas or in putting the gas into the Nestle bottles. There is no evidence that the defendant was ever in possession of the bottles. The only lighter found was in the property of Danny Thibault and there was only one bottle found in the car which is consistent with the defendant’s version of events. [ 78 ] There is no evidence that the defendant did or said anything to assist or encourage anyone to set the motor vehicle of Mr. Thomas on fire.

CONCLUSION [ 79 ] Although I am suspicious of the defendant’s prior knowledge and participation in the firebombing of Jonathan Leigh Thomas’ motor vehicle, based on the W(

D) analysis, I am left with a reasonable doubt that he was a party to the offence. [ 80 ] The Crown has not met its burden of proof with respect to the offence that the defendant was in possession of incendiary materials. [ 81 ] Both charges against the defendant are dismissed. Released: December 17, 2010

Signed: “Justice R. Zisman”