) ) HER MAJESTY THE QUEEN – v. –, 2017 ONSC 4800

CITATION : R. v. Comeau, 2017 ONSC 4800 COURT FILE NO.: 1909/16 DATE: 20170809 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – Dylan Patrick Gerald Comeau Defendant ) ) ) ) ) ) ) ) Aniko Coughlan, for the Crown David Stoesser, for the Defendant ) ) HEARD: July 25, 2017 Justice R. Raikes [ 1 ] This pre-trial application deals with the admissibility of post-offence conduct by the defendant; specifically, Internet searches by him after a text from his former girlfriend accused him of burning down her parents’ shed.

The Crown seeks to tender at trial the fact of his searches and what he searched. [ 2 ] The defendant contends that the evidence is not admissible because the searches are consistent with conduct by an innocent man falsely accused. The evidence has negligible probative value and is outweighed by its potential prejudice. Further, the defendant has an alibi for the night in question when the fire occurred and, accordingly, the evidence is therefore irrelevant. [ 3 ] For reasons that follow, I find that the fact of the searches and the matters searched are admissible.

Background [ 4 ] The defendant dated E.R. (“E.R.”) for approximately a year. Their relationship ended in November 2014. [ 5 ] E.R. lived with her parents, K.R. and D.R.. The R. family resided at the end of a cul-de-sac in Lambton Shores. There was a shed on the R. property in which Mr.

K.R. kept his drone helicopters and his equipment for building them. [ 6 ] The defendant visited E.R.’s home while they were dating. [ 7 ] In November 2014, the defendant was advised that he was no longer welcome at the R.s’ home. [ 8 ] On December 5, 2014, the defendant and E.R. exchanged a number of emails during which E.R. told the defendant that he should stop all contact with her. He continued to send text messages to her nevertheless. E.R. became concerned for her safety and that of her parents.

She called her mother to make sure everything was okay at home. [ 9 ] The last text between the defendant and E.R. was sent at 12:55 AM on December 6, 2014. [ 10 ] E.R. stayed with a friend the night of December 5, 2014. At approximately 2:45 AM on December 6, Mrs. D.R. woke to a loud muffler noise outside the residence by the road. Within minutes, she saw an orange glow coming through her bedroom window. When she looked, she saw that the shed was on fire. [ 11 ] Mr. K.R. was awake and watching television. Mrs. D.R. alerted him to the fire.

He went outside and tried to douse the flames with a garden hose while Mrs. D.R. called 911. The fire department extinguished the fire but not before the shed and its contents were destroyed. None of Mr. K.R.’s drones were found in the remains of the shed. [ 12 ] The fire investigator concluded that the fire was not accidental. [ 13 ] A neighbour observed a truck with its lights extinguished driving through a neighbouring cornfield in the direction of the R. home at approximately 1:45 AM.

He could not identify the make, model or colour of the truck. [ 14 ] The defendant owned a truck at the date of this incident, although he advises through counsel that it was inoperable on that date. I pause to observe that no one testified on this application. The facts set out in the facta filed were not disputed. [ 15 ] Police subsequently searched the cornfield and found tire marks northeast of the R. house. The tire marks went along a cedar

hedge up to an area of the cornfield adjacent to the R.’s address.

There, police found a discarded cigarette butt, white filter with a single gold band, and a can of “Busch Ice” beer which were seized for DNA testing. [ 16 ] On December 6, 2014, the defendant and E.R. sent the following texts to one another: 7:18 AM (defendant to E.R.): “Up n sober its great” 8:59 AM (E.R. to defendant): “Googd one burning the send [sic-should be “shed”] youre fucked and going to jail.” 11:04 AM (defendant to E.R.): “What are you saying.” 14:21 PM (defendant to E.R.): “Mean dont understand thro text.” There were no further texts between them. [ 17 ] The defendant was arrested on December 7, 2014 for assault, sexual assault and criminal harassment of E.R..

Police observed that the defendant had burns and blisters to both hands. He also had cigarettes with a white filter with a single gold band. [ 18 ] Police seized his cell phone as evidence as it was believed to contain the text messages that E.R. described to police at the outset of the investigation regarding criminal harassment. [ 19 ] During his interview with police on December 7, 2014, the defendant denied the allegations as they relate to the charges of assault, sexual assault and criminal harassment.

He also provided an alibi for the fire. [ 20 ] The beer can and cigarette butt found in the cornfield were sent for DNA testing. On January 14, 2015, the Centre for Forensic Science (“CFS”) reported that both items were tested and DNA was present on both. The DNA was from a single source, an unknown male. [ 21 ] On April 15, 2015, police obtained and executed a warrant to search the defendant’s cell phone. [ 22 ] On May 16, 2015, police executed a DNA warrant on the defendant. A blood sample was taken and sent for testing.

The CFS concluded that the defendant could not be excluded as the source of the DNA on the cigarette butt and beer can found near the fire. [ 23 ] On June 9, 2015, the defendant’s cell phone was examined by police.

They found that between 5:56 PM on December 6, 2014 and 1:16 PM on December 7, 2014, the defendant’s cell phone was used to conduct fifty Internet searches on the following subject areas: • Arson • Evidence needed for arson • Gasoline fires • Big blister burn • If no real evidence, can you be charged? • OPP • Prosecutors • Aircraft controllers • Drone gaming controllers • Octocopters [ 24 ] Tab 3 of the Crown’s Application Record lists each search in reverse date and time order (from most recent to earliest). The first search was “gasoline fires – how long does gasoline burn on fire”.

The next searches focused on aircraft and drone controllers including how much they cost. The searches then focused on octocopters before turning to how much evidence is needed for arson. Twenty-three of the fifty searches related to arson. [ 25 ] The searches started almost nine hours after E.R.’s text to the defendant telling him that he was going to jail. There is no evidence that in that interim period, E.R. clarified that “send” meant “shed”. [ 26 ] On June 28, 2015, the defendant was charged with mischief and arson, counts 8 and 9 on the most recent indictment.

By then, he was already charged with assault, sexual assault and criminal harassment of E.R.. [ 27 ] Counts 8 and 9 of the indictment read as follows: “8. That on or about the 6 th day of December, in the year 2014, at the Municipality of Lambton Shores, in the Province of Ontario, [Dylan Comeau] did commit mischief by wilfully burning, without lawful justification or excuse and without colour of right property, to wit: wooden shed, of K.R., the value of which exceeded five thousand dollars, contrary to section 430(3) of the Criminal Code of Canada . 9.

That on or about the 6 th day of December, in the year 2014, at the Municipality of Lambton Shores, in the Province of Ontario, [Dylan

Comeau] did intentionally or recklessly cause damage by fire to a wooden shed, the property of K.R. situated at …, contrary to section434 of the Criminal Code of Canada.” Post-Offence Conduct Evidence [28] The critical issue on counts 8 and 9 is identity: did the defendant set the fire to the shed? No one saw him set the fire and hedenies any involvement or responsibility for it. The Crown’s case is entirely circumstantial.

The Internet searches on the defendant’sphone took place after the fire and are another piece of circumstantial evidence on which the Crown seeks to rely to meet its burden ofproof. [29] Post-offence conduct is circumstantial evidence. Like all circumstantial evidence, it must be relevant, material and admissible:R. v. White, 2011 SCC 13 , [2011] 1 S.C.R. 433 at para. 21. [30] In R. v. J.A.T., 2012 ONCA 177 , [2012] O.J.

No. 1208 (ON CA), Watt J.A. wrote at para. 142: “Evidence of post-offence conduct is circumstantial evidence which, like other circumstantial evidence, will be relevant and admissibleaccording to whether it has some tendency as a matter of logic, common sense and human experience, to help resolve the issues in thecase: R. v. White…para. 140; and R. v. Cornelius, 2011 ONCA 551, 283 O.A.C. 66 at para. 19.” [31] The defendant argues that to be admissible, the conduct must be consistent with guilt and inconsistent with conduct of aninnocent person. He relies upon para. 26 in R. v.

Peavoy, (ON CA), 1997 CarswellOnt 2689 (ON CA) for thisproposition. I respectfully disagree. It seems to me that the defendant has taken that proposition out of context. [32] In Peavoy, the accused was charged with second degree murder. He testified that he and the victim had been drinking when anargument broke out between them that escalated into a physical altercation. He admitted stabbing the victim but argued that the victimcame at him with a knife and was stabbed while they wrestled. The victim left his apartment and subsequently collapsed and died.

Theaccused cleaned the knife and straightened up the apartment after the victim left. The Crown relied on this cleaning as after-the-factevidence of consciousness of guilt. The issue was whether the after-the-fact evidence could be used to determine the degree ofculpability; viz. to find it was more likely that the accused committed murder than manslaughter [33] Weiler J.A. for the court wrote at paras. 24-28: “24. There is nothing magical or unique about after-the-fact conduct.

It is not necessary for the Crown to prove that an item of after-the-fact evidence, or even all of the items, in themselves, establish the guilt of the accused person. It is only some evidence which is to beweighed with all the other evidence by the trier of fact in deciding whether or not the guilt of the accused person has been proved beyonda reasonable doubt. 25. Evidence of after-the-fact conduct must be relevant to a fact in issue and may be relevant to more than one issue in the trial.

Likeother circumstantial evidence, evidence of after-the-fact conduct must be reasonably capable of supporting an inference which tends tomake the existence of a fact in issue more or less likely. The primary question is, “How is the after-the-fact conduct relevant?” Thisquestion cannot be determined in the abstract or by regard only to the evidence of after-the-fact conduct. It will depend on the nature ofthe conduct and the factual context of the case, particularly the context of the position advanced by the appellant at trial: R. v.

Conway, ajudgment of the Ontario Court of Appeal delivered (January 17, 1995), Doc. CA C6540 (Ont. C.A.) (summarized (1995), 26 W.C.B. (2d)121 (Ont. C.A.)). Relevance is, of course, addressed when the evidence is tendered. The relevance of after-the-fact conduct should beused to shape the instruction given to the jury in any particular case where that kind of evidence forms part of the case. 26.

Evidence of after-the-fact conduct is commonly admitted to show that an accused person has acted in a manner which, based onhuman experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person. The after-the-fact conduct is said to indicate an awareness on the part of the accused person that he or she has acted unlawfully andwithout a valid defence for the conduct in question. It can only be used by the trier of fact in this manner if any innocent explanation forthe conduct is rejected.

That explanation may be expressly stated in the evidence, such as when the accused testifies, or it may arisefrom the trier of fact’s appreciation of human nature and how people react to unusual and stressful situations. It is for the trier of fact todetermine what inference, if any, should be drawn from the evidence. 27. Often, after-the-fact conduct may be relevant to the issue of the identity of the person who committed the crime: White, supra; R. v.Dunn (1990), (BC CA), 56 C.C.C. (3d) 538 (B.C. C.A.); R. v. Tzimopolous (1986), 29 C.C.C. (3d) 3014 (Ont.

C.A.).Where, for example, a person denies being the person who engaged in an assault on another person, but was seen fleeing from the sceneof the crime by someone who knew him, the trier of fact may (not must) conclude that flight from the scene was more consistent with aperson who had committed the assault. On the other hand, where the evidence of the accused admits being the person engaged in afight, the after-the-fact conduct will add nothing to the issue of identity and has no relevance in that regard. 28.

When an accused person has been charged with an aggravated assault and admits to having committed common assault, evidence offlight does not make it more or less likely that the assault was aggravated assault as opposed to common assault. The evidence,therefore, has no relevance to that issue. Where culpability for one offence is admitted but culpability for another offence is denied,evidence of flight cannot be used to draw an inference of guilt because it does not relate to a particular offence. It cannot be used todetermine the degree of culpability of the accused person: R. v.

Arcangioli, (SCC), [1994] 1 S.C.R. 129 (S.C.C.).” [34] It is clear from the above passage that it is for the trier of fact (the jury) to determine whether or not to accept that there is aninnocent explanation for the defendant’s conduct. It is not a prerequisite to admissibility that the conduct be incapable of any inferenceor explanation but guilt.

That sets the bar too high and conflates the issue of admissibility with the ultimate weight that may be attachedto that evidence by the trier of fact. [35] To determine whether the fact of the defendant’s Internet searches and what he searched should be admitted into evidence attrial, I must consider:

1. Is the evidence relevant to a matter in issue? 2. Is the evidence excluded by another rule of evidence? 3. Is the probative value of the evidence outweighed by its prejudicial effect? [ 36 ] In the context of the other evidence (for example his burned and blistered hands and texts to E.R. on December 5), a reasonable juror could infer as a matter of common sense and ordinary human experience that the defendant conducted those Internet searches because he lit the fire. Jurors might infer or conclude that he could not otherwise have understood E.R.’s text about “burning the send” to refer to the shed.

Why then start to search arson and the burden of proof for same? It is logical and a matter of common sense to infer that a person who set a fire might soon after seek information about the crime committed. That is not to say that a juror must draw such an inference, only that he or she could do so. A juror may draw other inferences or conclusions having regard to all of the evidence and will attach such weight to the searches as he or she sees fit. [ 37 ] I note that at the same time as he searched to find out about arson and what needed to be proved, he also searched about drone controllers and octocopters.

The bones of those items were missing in the remains of the fire. It is for the jury to determine what weight to give to the searches, all or any of them. [ 38 ] The defendant may well have an explanation for the searches. Perhaps, as counsel suggested in argument, he did so because he was being wrongly accused by E.R.. That is for the jury to determine on the whole of the evidence. [ 39 ] I find that the Internet searches are relevant to the identity of who started the shed fire.

It is also relevant to the narrative of what happened and when. [ 40 ] There is no rule of evidence that excludes this evidence, nor is one put forward by the defendant in argument. [ 41 ] The last step in the analysis requires that I weigh the probative value against its prejudicial effect. In this context, prejudicial effect deals with trial fairness and efficiency, not whether the evidence makes conviction more likely. [ 42 ] The defendant argues that in light of his alibi defence, this evidence has no probative value.

I do not have before me the facts alleged that provide the alibi; however, I note that it is for the jury to weigh the alibi evidence. If the jury accepts that evidence or finds that it raises a reasonable doubt, it must acquit the defendant. On the other hand, if the jury rejects that evidence, it must still consider whether the Crown has met its burden of proof on the remaining evidence.

Thus, the mere fact that the defendant asserts an alibi does not render this evidence irrelevant or of marginal probative value. [ 43 ] As above, I am satisfied that the post-offence conduct here is probative of a critical issue in the case. The evidence of the searches made is directly relevant and is not outweighed by any prejudicial effect; in fact, I do not agree with the defendant that there is any prejudicial effect. The evidence of his searches, including any explanation he may opt to provide, will not take much time.

There is little chance that this avenue of inquiry will undermine the trial process or trial fairness. Conclusion [ 44 ] On the information presently before me, I find that the evidence of the fact of the Internet searches by the defendant and what he searched is admissible in evidence at trial. [ 45 ] Counsel may make submissions at trial regarding any caution to the jury either mid-trial or in the final charge. Original signed by Justice R. Raikes Justice R. Raikes Released: August 9, 2017 CITATION : R. v. Comeau, 2017 ONSC 4800

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – Dylan Patrick Gerald Comeau REASONS FOR JUDGMENT Justice R. Raikes Released: August 9, 2017