Court of Appeal Decision of the Week

Whirlwind Vanishing Arsonists: What’s a “Reasonable Verdict”?

Case: R. v. Bou-Daher, 2015 NSCA 97 (CanLII)

Keywords: Arson; Reasonable Verdict; s.686(1)(a)(i) of the Criminal Code; Nova Scotia Court of Appeal; R. v. Yebes, [1987] 2 SCR 168, 1987 CanLII 17 (SCC); R. v. Griffin, [2009] 2 SCR 42, 2009 SCC 28 (CanLII); R. v. Lifchus, [1997] 3 SCR 320, 1997 CanLII 319 (SCC)

Synopsis:

On July 7, 2008, between 1:00AM and 1:15AM, someone deliberately set two fires on the upstairs level of Key Largos, a bar in lower Sackville. The manager, Mr. John Bou-Daher had been on the upstairs level of the bar until about 1:10AM, whereupon he went downstairs, armed the security system, and left the building.

The report of Philip Juby, a “fire cause determination and travel” expert was admitted by consent and included the following opinions:

  • there were two distinct areas of deliberately set fires;
  • a liquid accelerant was used;
  • liquid accelerants are commonly ignited by the use of a match or lighter;
  • the fires could not have occurred without human action;
  • the fires were set intentionally to cause damage to the contents and structure of the business;
  • the amount of “Burn Time” or time of open flame in this fire scene was more than 3 minutes and less than 5 minutes.
  • the sprinkler system minimized the damage which was limited to flooring, moulding, and light soot throughout. The fire was also minimized by the absence of a considerable volume of flammable material immediately at the flame source (see para. 16).

The trial judge inferred, from circumstantial evidence, that no unidentified person could have accessed the upstairs between 1:00AM and 1:15AM. Mr. Bou-Daher was the only person with access to the place at the time the fires were set. Mr. Bou-Daher was charged with arson for fraudulent purpose (s.435), and ultimately found guilty of arson contrary to s.434 of the Criminal Code.

Mr. Bou-Daher appeals to the Court of Appeal (files Notice of Appeal unassisted by counsel – “the judge made the wrong decision in finding me guilty”; “not enough evidence to find me guilty”). In his factum, written by counsel, Mr. Bou-Daher submits the verdict is unreasonable and unsupported by the evidence:

The Appellant respectfully submits that the learned trial judge erred in law in finding that the evidence was sufficient to find the Appellant guilty beyond a reasonable doubt of the crime of arson under s. 434 of the Criminal Code. In particular, the Appellant respectfully submits that the learned trial judge erred in law in finding that the Appellant’s guilty is the only rational inference that can be drawn in this case. [Emphasis added]

Fichaud J.A. dismisses the appeal, finding the trial judge’s conclusion was reasonable. Mr. Bou-Daher’s suggestion that an unidentified intruder may have set the fires is deemed irrational and unsupported by the evidence (see especially paras. 40-48).

Importance:

The issue in this appeal was whether the verdict of Judge Anne Derrick was unreasonable or unsupported by evidence. In other words, the Court was asked to deal with s.686(1)(a)(i) of the Criminal Code, which permits the Court of Appeal to overturn a guilty verdict, where the decision is “unreasonable or cannot be supported by the evidence”.

Is the Verdict Unreasonable of Unsupported?

According to Fichaud J.A. (at para. 35), for Mr. Bou-Daher’s suggested scenario to have occurred, the following would have been necessary:

“1. In mid-afternoon on July 6, the culprit or an accomplice, undetected by Key Largos’ staff,  would have had to go upstairs to the private Key Largos office, locate the video recording device, and shut it down at 3:19 p.m.

  1. He would have to hide upstairs until he set the fires about ten hours later, or exit in the afternoon and then he or the accomplice would have to return upstairs again before he set the fires. In either case the intruder would have to bring his accelerant. His activity would have to be undetected by Key Largos’ staff.
  2. Mr. Badour found the outside doors locked at 12:20 to 12:30 a.m., and gained entry only when Ms. Vakili opened the door to leave. The judge found no evidence of forced entry, except for the damage done by firefighters after the fire had started. So an intruder’s entry to the building would have to be before the doors were locked, i.e. earlier than 12:20 to 12:30 a.m.
  3. Mr. Bou-Daher was upstairs in the office counting the day’s take at 12:20 to 12:30 a.m., when Mr. Badour went upstairs. Anyone going upstairs after that would be noticed by Messrs. Badour or Bou-Daher. So an intruder would have to be cached upstairs, with the accelerant, before Mr. Bou-Daher had entered his upstairs office sometime before 12:20 to 12:30 a.m.  Then, unbeknown to Mr. Bou-Daher, the intruder would have waited for Mr. Bou-Daher to depart.
  4. At 1:10 a.m. on July 7, Mr. Bou-Daher went downstairs, set the alarm and immediately left the building with Mr. Badour. The alarm had a momentary arming delay to permit exit before the alarm would sound.

Between Mr. Bou-Daher’s descent downstairs at 1:10 a.m. and his arming of the alarm briefly thereafter, the intruder would have to:  (1) notice, from his hiding spot, that Mr. Bou-Daher had gone downstairs, (2) emerge with the accelerant, (3) spray the accelerant on two separate locations, one being the office just vacated by Mr. Bou-Daher, (4) ignite two fires, and (5) leave the building.  He would have to leave through the upper emergency exit door (Door #4) before the door’s alarm was armed after the exit delay.  An exit through any other door on the main level would have been observable by Messrs. Bou-Daher and Badour.  Mr. Bou-Daher’s statement (Exhibit 12) says “I locked the office door before I left and just used the door knob lock – not the dead bolt”.  If this is accurate then, during the interval, the intruder also would have to (6) somehow overcome the door-lock to access the office where he set one of the fires.

The intruder would have to (7) accomplish all this without detection by Messrs. Bou-Daher or Badour, who were downstairs in a quiet setting before they left the building.”

Section 686(1)(a)(i) directs the Court of Appeal to assess whether the verdict is unreasonable from the perspective of a “reasonable trier of fact” (see, for example, R. v. Yebes, [1987] 2 SCR 168, 1987 CanLII 17 (SCC)).

Citing R. v. Griffin, [2009] 2 SCR 42, 2009 SCC 28 (CanLII) at para 35, the Court of Appeal found that alternative exculpatory inferences must be “rational or reasonable”. In other words, an alternative must be a “reasonable inference to be drawn from the proven facts” (R. v. Cooper, [1978] 1 SCR 860, 1977 CanLII 11 (SCC)).

Furthermore, R. v. Lifchus, [1997] 3 SCR 320, 1997 CanLII 319 (SCC) stands for the proposition that a reasonable doubt “…is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence”.

Therefore, to overturn the decision of the trial judge, Mr. Bou-Daher’s alternative hypothesis (detailed above) should logically follow from premises sensibly inferred from either evidence or circumstantial evidence on the record.

One pauses to note the fine line (walked gracefully by Fichaud J.A.) that the onus of proof is not reversed – the Crown’s burden is to prove beyond a reasonable doubt, not beyond any irrational or speculative doubt.

Upon review of this improbable scenario, the Court of Appeal had this to say about Mr. Bou-Daher’s theory: “the whirlwind vanishing arsonist is a figment from which reason recoils” (para. 36). For the Court of Appeal, Mr. Bou-Daher’s assertion that two other persons were in the vicinity outside Key Largos “…taking the garbage”(para. 44) was not enough to lift his alternative hypothesis from the level of mere “conjecture” (para. 43).

Counsel for the Appellant: David Dalrymple (Crown Attorney’s Office)

Counsel for the Respondent: Timothy O’Leary

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Posted: Wednesday, November 18, 2015