Court File No.: CR-09-1585
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
SUBMISSIONS OF THE DEFENCE
This case involves four charges against Franklyn Wallace: s. 433(a) arson regarding the property at 790 Bruce Avenue, Windsor; s. 271(1) sexual assault upon Renaila Zrdalic; s. 236 manslaughter upon Elizabether Conn; and s. 433(b) arson cause bodily harm, upon Sean Conn.
The incidents giving rise to the allegations arose on September 10, 2008, at the City of Windsor.
The factual background begins with a trip that Ms. Zrdalic (“Zrdalic) took from her home town of London, Ontario, with her older friend Kathy Broadhead (“Broadhead”). Zrdalic and Broadhead traveled to Windsor to visit a friend, Shirlene Williams (“Williams”). Their general intent was to meet people and enjoy themselves. Zrdalic affectionately referred to Broadhead as her “mother”.
Zradlic, Broadhead and Williams attended at the downtown Windsor liquor store on Church Street and purchased some liquor. They met Wallace, who was known to Williams, on the street. Wallace invited the three of them to his apartment located at 790 Bruce Avenue. The four attended Wallace’s apartment. Three of them, Zrdalic, Broadhead and Wallace consumed alcohol. Williams, who was pregnant, did not.
Zrdalic believed that Wallace was “hitting on her”, and it made her uncomfortable. She stated at one point he followed her into the bathroom and fondled her. She was also concerned about having left her young son behind in London, and wanted to leave Wallace’s apartment.
Zrdalic, Williams and Broadhead left the apartment and walked north on Bruce Avenue towards University Avenue, where Williams’ apartment was located. Zrdalic expressed some concern about having left a sweater behind at Wallace’s residence. The three returned to the Bruce residence, and observed a fire on the front porch area.
Wallace was observed to be outside the residence and was acting in an unusual manner. Police, ambulance, and fire fighting personnel were on scene.
A verbal exchange took place between Zrdalic and Wallace in which Zrdalic states Wallace told her he was responsible for the fire because she “wouldn’t be with him”. Wallace was placed under arrest.
THEORY OF THE DEFENCE
It is the theory of the defence that there is no direct evidence Wallace deliberately or recklessly set a fire. Further, Wallace would have no motive to set fire to his own residence. The “best evidence” the Crown can adduce is some admission from Wallace to Zrdalic that he did so.
The defence states that the evidence of Zrdalic, as it relates to Wallace’s supposed “admission” is inherently unreliable, and, even if he the words were spoken, it was only in response to Zrdalic’s accusation to Wallace that he was responsible for the fire.
The defence also submits that an accidental cause of be ruled out. This is in accordance with the evidence of the Fire Marshall and the accepted science related to smoldering fires in couches.
The defence also raises the defence that another suspect was responsible for the arson, namely Chris Wilder. Mr. Wilder testified that he was at the Bruce Avenue building the night of the fire, and he, along with a friend, Darren McKay, purchased and consumed crack cocaine. Later, feeling they were “shorted” on the purchase, they re-attended at the residence and with the help of an accelerant, set fire to the couch on the porch of the residence. The defence submits that this evidence exonerates Wallace, or raises a doubt as to his guilt.
ANTICIPATED THEORY OF THE CROWN
The anticipated theory of the Crown is that Wallace deliberately set a fire because of his anger over his sexual advances at being rejected by Zrdalic.
The anticipated theory of the Crown as it relates to an accidental cause of the fire is that there was little or no evidence to support the factual suggestion smoking could have created a smoldering fire, that there were no smoker’s materials present in the couch remains, and that the timeline of the fire negates the potential for an accidental, smoldering fire.
The anticipated theory of the Crown as it relates to the “other suspects” defence is that Wilder’s testimony is not credible and is unreliable, that the events described were denied by McKay, and that Wilder’s version of events is not corroborated by the opinion evidence of the Fire Marshall.
DEFENCE RESPONSE TO ANTICIPATED CROWN THEORY
i) Wallace Responsible for Arson
The defence states that there is no air of reality to the notion Wallace would set fire to his own home because of his frustration at not “having” Zrdalic.
First, event accepting Zrdalic’s evidence at its highest, that Wallace had been fondling Zrdalic, there is no evidence that Wallace ever threatened Zradlic or wanted her or anyone else to draw the conclusion that he had an interest in harming Zrdalic. At times the exchanges between Wallace and Zrdalic were banter or flirting—he told her he loved her and he wanted to be with her, she told him, how could he say that, he didn’t even know her. These exchanges were taking place in Wallace’s apartment, while Wallace, Zrdalic, and Broadhead were consuming drugs and alcohol, and, along with Williams, were generally having a good time.
The evidence from Zrdalic was that Wallace did not have her phone number or any other way of contacting her, and there was no expectation from Zrdalic that, after that evening, she would ever meet Wallace again, or that she would ever return to the Bruce Avenue address.
The best evidence is that Wallace was inside the apartment when the fire was first observed. The Crown theory in short makes no sense—Wallace, suffering anguish over not obtaining Zrdalic’s affections, was driven to burn down his own house, with him in it, to in some way show her that she should have been with him. And to make this point, Wallace risked killing himself.
The defence will comment on the credibility and reliability of Zrdalic later in these written submissions. In short, though, the defence states that Zrdalic’s evidence ought to be rejected.
As to her reliability, she admitted she was drunk and stoned throughout the evening. This was corroborated by Williams, Broadhead, and Lamont Rhue. It was also observed by Officer Meismer. Her ability to recall the events throughout the evening was questionable. She presented as a poor historian.
As to her credibility, she, on her own admission, stated she was “careless with the truth”. As detailed below, when confronted with her evidence from the preliminary hearing, with her statement to Windsor Police, and her statement to an investigator, her trial testimony on several key points was shown to be contradictory. Further, her evidence on several key points was in contradiction to that of other witnesses.
ii) Potential for a Smoldering Fire
The defence submits that the potential for a smoldering fire cannot be eliminated. There was evidence of smoking activity taking place on the porch, involving Zrdalic. Other persons were seen in and around the porch area by Lamont Rhue. The Fire Marshall’s evidence, from a strict forensic perspective, supports the notion that a smoldering fire could not be ruled out. The reasons provided by the Fire Marshall in his Report for rejecting a smoldering fire were not supported by the evidence. The first reason offered is there were no smoker’s materials found at the fire scene. This lack of evidence, however, does not prove the opposite proposition is true. The second reason provided relates to a timeline of 20 minutes for a smoldering fire to commence. The Fire Marshall operated on the assumption that the timeline was 10 minutes. The timelines provided by Zrdalic, Broadhead and Williams could not be determined with any degree of certainty, and no investigative inquiry was made to develop a clearer picture of what the actual timeline would have been. Consequently, the “facts” relied upon by the Fire Marshall were not proven and in any event were inherently unreliable.
Moreover, the rejection of this possibility is predicated on the assumption that only Zrdalic, Broadhead and Williams could have inadvertently started the fire through careless smoking and only within the short timeline considered by the Fire Marshall, when in fact the introduction of a combustible to the couch could have taken place hours earlier.
As it relates to the Fire Marshall, the defence submits that in certain instances his reasoning process as reflected in his Report was fundamentally flawed, was not in accordance with accepted practice in his field, and that his opinion was generated more to support the conclusions of the police, rather than those supported by the evidence at trial.
iii) Wilder Responsible for Arson
The defence submits that the evidence of Chris Wilder that he and Darren McKay were responsible for the fire ought to be accepted. Wilder had absolutely no motive or reason to fabricate his evidence.
Wilder became involved in the Brentwood Programme in the spring/summer of 2009. The dictates of his conscience led him to “come clean” with Brentwood staff. He provided a statement to his counsel, and then later to Windsor Police. Wilder felt a need to come forward because, in his words, “an innocent man was charged with something he didn’t do”. Aside from a lengthy, sworn statement to Windsor Police, Wilder testified at Wallace’s bail review and later provided a supplementary videotaped statement to Windsor Police providing additional details. There is no known connection between Wilder and Wallace. There is no sustainable suggestion of collusion or any improper motive.
Wilder’s statements to the police were subjected to critical scrutiny by Crown counsel and the Fire Marshall. Wilder’s evidence on some points was less than clear, and on some occasions was contradictory. However, there is no explanation for the potential risk that Wilder faced by coming forward. The Crown accused Wilder of imagining these events, although Wilder had told his employer of his involvement in the spring of 2009. Moreover, the “alibi” of McKay was not revealed by him or his spouse until the last possible moment—testifying at trial—when it was clear to both of them that McKay was the subject of a serious police investigation.
Further, the defence submits that the Fire Marshall’s opinion as it relates to the Wilder evidence was influenced by the selective information provided to him by the police and Crown counsel and was further tarnished by his own belief his job was to work with the police.
SUMMARY AND COMMENTARY ON THE EVIDENCE
This trial was one which was essentially bifurcated, with the Crown calling Reply evidence from lay witnesses and recalling the Fire Marshall on the issue of whether Wilder was responsible for the fire. Because of this, in these written submissions I have not followed the strict chronological path of the trial, but have combined the evidence from each of the defence and Crown cases—both in chief and in cross-examination—starting with the Zrdalic narrative, followed by the Wilder narrative, and concluding with a discussion of the expert evidence, with a view to making these submissions easier to follow.
1. Firefighters Wayne Derozario and Gary Neufeld
Mr. Derozario was part of the response team from the Windsor Fire Department (“WFD”). His fire engine was first to arrive at the scene. During the process of setting up to tackle the fire, he had his attention drawn to Wallace who was yelling “I showed them” and rambling on either incoherently or “speaking in tongues”. Mr. Neufeld, who was in one of the crews to arrive at the fire scene early on, testified he observed Mr. Wallace yelling, “Help put out the fire”.
Mr. Derozario testified he did not understand what was meant by Wallace’s words “I showed them”. Although he saw Wallace pacing back and forth, he was not in the way. Wallace obliged them by staying on the sidewalk. He approached the cabinets of their truck. He had his hands out, but he didn’t touch anything. Derozario later saw Wallace pacing frantically back and forth. A young lady approached him. The fire was “fully involved”. He later saw Wallace being arrested.
Mr. Derozario did not know with any certainty what Wallace meant when he said “I showed them”: who was shown what, and when? It is not even known if Derozario was the recipient of the comment, or whether there even was an intended recipient. The inference the Crown would in all likelihood ask the court to draw is that Wallace’s comments were in reference to the fire, that he “showed them”, meaning he showed Zrdalic that he had set the fire.
This conclusion, while somewhat enticing, is only one of many inferences that could be drawn from this three word statement. It should be borne in mind that Mr. Derozario, who arguably was in the best position to put the words in context, was in a subjective sense unable to ascribe meaning to or draw any inference from the words.
Our courts have cautioned strongly about drawing incriminating inferences from what could be considered “excerpts” of spoken passages. The defence refers the court to the appellate cases of R v Ferris (Alta.C.A.), and R v Hunter (Ont.C.A.), which are summarized at the conclusion of these written reasons as Appendix “A” and the full texts of which have been added to the electronic version. These cases stand for the proposition that it is inherently dangerous to rely on a portion of a statement where it lacks sufficient context, or where there exists the potential for alternate meanings. In certain circumstances, such “excerpts” stand to be ruled inadmissible as having a prejudicial effect not outweighed by probative value.
On the facts of this case, it is not known what Wallace said before or after. The best Mr. Derozario can say is that Wallace was rambling and speaking “in tongues”. It is not known what was shown, if anything. It is not known who the “them” are. The “them” could have been the police, the firefighters, or ambulance personnel, for example. It is not known who, if anyone, he was directing the comment to, whether it was to Derozario or someone else. This is a three word sentence, capable of multiple meanings and multiple interpretations. Even granting the statement an interpretation most favourable to the Crown, it is not a comment about a single person—Zrdalic—the pronoun used is the collective “them”. In other words, the statement is not, “I showed her”, it is “I showed them”. Who is the “them”? It could hardly be Williams and Broadhead, who Wallace had no issues with. As well, it is not known with any certainty whether Zrdalic, Williams, and Broadhead were even back at the residence when the comment was made.
2. Constable Sherri Meismer
Constable Meismer was part of the response from Windsor Police Service (“WPS”), and was a first to arrive at the scene, with her partner. She described the scene as “pandemonium”, with police cruisers, fire trucks, in full action with emergency lights sirens all in action. She was alerted by WFD personnel to Wallace’s bizarre behavior, and placed him under arrest. She described Wallace as “speaking in tongues” and as being largely unintelligible. She also seized three lighters from him and located a spent fire extinguisher. Cst Meismer also took the initial statement from Zrdalic, and as such—as is discussed later—her observations related to Zrdalic’s sobriety are of importance.
Cst Meismer initially drew the conclusion that Zrdalic was “slightly intoxicated”. At trial, Cst Meismer testified that Zrdalic was not intoxicated, and did not show signs of intoxication. This was in direct contradiction to her evidence at the Preliminary Hearing, where she testified that Zrdalic was “somewhat intoxicated”, that Zrdalic was slurring her words, and had difficulty walking. She attempted to explain away and qualify this—although she had never spoken to Zrdalic previously—by speculating that maybe Zrdalic’s first language was not English and that she may have had difficulty walking around fire hoses. Neither of these two points was canvassed by the Crown when Zrdalic testified in chief.
The specific sections of the PH transcript that were put to Cst Meismer are as follows:
Q: Okay, and did this exchange that you had with Renaila, do you know where you made this assessment regarding her, her sobriety and whether she could offer something to the investigation? Was that done when Renaila was in the cruiser or?
A: I spoke with her briefly outside of my vehicle.
A: Most of the time was spent outside of our police vehicle…
A: …with the exception for the purpose of taking a statement inside our vehicle, so I spoke with her briefly outside, and the statement was taken inside our car.
Q: Okay, and in terms of making an assessment as to her sobriety, did you specifically ask her whether she had consumed alcohol?
A: Ah, I’m not sure. I can’t remember if that question was specifically put to her, but I do recall asking, I do recall asking her how she had come to this address and she had indicated that she had been brought there by friends.
Q: I appreciate that, but you said that you had her, and you formed an opinion, just a lay opinion but an opinion nonetheless, that, that she had, she had, she was somewhat impaired.
Q: And was that opinion that you had informed by a response to a question that you asked her as to whether or not she had been drinking.
A: It was, there was [sic] several other indicators of impairment. Like I said, there were some slurred speech but there were some walking with assistance. There was some odour of alcohol on her breath, and her admitting previous alcohol consumption.
Preliminary Hearing, January 8, 2009, p. 144-145
It should be noted as well, that when Zrdalic was giving her initial statement to the police in the rear of Cst Meismer’s cruiser, she was in the company of another witness, Kathy Broadhead.
3. Joseph Desbiens
Mr. Desbiens lived across the street directly to the south of 790 Bruce Avenue. He was one of the first individuals to observe the fire. He noticed while he was standing on his porch, across the street.
Mr. Desbiens described the fire as “small”, 1 – 1 ½’ tall to 3’ wide and that it was coming from the corner area of the couch. He went inside his house to call 911. When he came back outside, he noticed that the size of the fire had increased. He saw a black man on the second floor of the house. He yelled at him to “get the fuck out of the house”. He later saw a black man running out of the house with a fire extinguisher. He knew that this man was not Lamont Rhue, who he knew lived there and was black. He saw this man spraying the fire extinguisher around, but not on, the fire. As the size of the fire had increased significantly, Desbiens did not believe that the small, kitchen-type fire extinguisher would have been effective in suppressing the fire.
4. Aura Huezo
Ms. Huezo was also one of the first to observe the fire. She was driving north down Bruce Street and observed a “small bonfire” at the house. In her rearview mirror, she could see a man in a green shirt with a fire extinguisher at the residence.
5. Crystal Butler
Ms. Butler testified she was traveling in a vehicle north on Bruce Avenue at the time of the fire. She was by herself. She saw a fire on a porch; it looked like a garbage can was on fire. She noted the flames were 2’ high. She called 911. She went back to her friend’s house and called her. She told the friend there was a fire on her street. She went to the corner where the fire was. It was larger at that point. She saw some girls. They were hysterical, they were crying. She saw a man spraying a fire extinguisher, he was spraying it randomly. The girls were screaming and crying. She testified that the same person she saw spraying the fire extinguisher was arrested.
Although none of Desbiens, Huezo or Butler was able to identify the person with the fire extinguisher, a consideration of their evidence leads to only one rational conclusion, namely that the person with the fire extinguisher who exited the building at or around the time the fire started was Frank Wallace. A black gentleman was seen in the apartment by Desbiens in the area of Wallace’s apartment. Desbiens identified a black man leaving the second floor of the residence during the fire and spraying a fire extinguisher. Ms. Huezo observed a black man wearing a green shirt with a fire extinguisher. Wallace’s clothing, including a green shirt, were marked as Exhibit 69 in these proceedings. Ms. Butler observed the man with the fire extinguisher being arrested. No other persons were known to be arrested at the fire scene. There were no other persons seen either leaving the residence during the fire, or using a fire extinguisher. The location and layout of Wallace’s apartment also supports this conclusion.
6. Renaila Zrdalic
As indicated earlier, Zrdalic had traveled from London to Windsor that weekend to meet with Williams and enjoy a weekend in Windsor. She traveled with her friend and so-called “mom”, Kathy Broadhead.
Zradlic admitted that she had been smoking marijuana and consuming alcohol. She was a regular marijuana smoker. She first started smoking marijuana before she left London, but generally smoked marijuana throughout the day.
After arriving at Williams’ apartment, which is located in the Wyandotte/Bruce intersection, she left with Broadhead and Williams to go to a nearby liquor store and purchase some alcohol. A 26 oz bottle of vodka was obtained. Zrdalic’s intention was essentially to party, and she admitted that she was prepared to go to the riverside to drink the vodka in public.
As indicated, the three ended up at Wallace’s apartment after meeting Wallace on the street. While there, the three (Wallace, Zrdalic, Broadhead) drank the alcohol and consumed marijuana. She testified in chief that she had three drinks.
While generally everyone was having a good time, Zrdalic felt Wallace was “hitting” on her and this made her feel uneasy. She was also worried about her young son, who was in London with his grandparents. She went to the bathroom in Wallace’s apartment and cried because she missed her son. She had previously been overcome with emotion to the point were she cried while at Williams’ apartment, again about her son. She ultimately had an intention of wanting to leave the apartment, although she had been there for approximately three hours.
Zrdalic testified that over the course of the evening Wallace had told her he loved her and he wanted to be with her. She told him that, he didn’t even know her, so how could he love her. Zrdalic testified that when she went to the bathroom and “Ruby” (a nickname for Wallace, also “Rudy”) followed her in there and fondled her vagina, buttocks and breasts. She told him to stop. She testified she was “screaming and yelling” at Wallace, telling him to stop.
Zrdalic ultimately left the apartment and sat on couch on porch, waiting for Broadhead and Williams. According to Zrdalic, the couch was “facing out”, that is, facing towards the street. This is not consistent with the known facts. She testified while on the couch, she had a cigarette, then Williams and Broadhead came downstairs and joined her. Zrdalic testified at this point she was “still crying”. She asked Broadhead and Williams, presumably with respect to Wallace having touched her: “You guys didn’t hear me screaming, yelling for you?” They told her “No, we didn’t hear nothing.”
According to Zrdalic, the three left the residence and walked “a couple of houses down” Bruce Avenue. She stated it was possibly four houses down the street. She realized she had left her sweater behind. She went back and saw a fire at the house. She heard the sirens. This timeframe was, according to her, two minutes. She saw Wallace walking down the street, walking towards them but on the other side of the street (this would have been across the street on the west side). She did not see anything in Wallace’s hands.
Zrdalic could not believe her sweater was there, and the couch was on fire. She was concerned about a picture of her son that was in her sweater pocket. She was overcome with emotion—she sat down on the curb and “started bawling”. Broadhead and Williams asked her if she was okay but she did not answer them. She testified that Wallace said “I put the couch on fire because I wouldn’t be with him”. According to her, she said nothing to him when he said that to her. The police arrived after he said that. Later, she saw Lamont Rhue on the sidewalk after the police came.
7. Analysis of Zrdalic’s Evidence
As stated earlier, the defence submission is that the evidence of Zrdalic is both unreliable and is not credible. The evidence that supports these conclusions arises from the following:
i) Zrdalic’s alcohol consumption;
ii) Zradlic’s marijuana consumption;
iii) Zrdalic’s possible crack cocaine consumption;
iv) Zrdalic’s contradictory evidence and her emotional state.
i) Alcohol Consumption
Zrdalic admitted that between herself, Broadhead and Wallace, they consumed an entire 26 oz bottle of vodka. She mixed the vodka with coke, but also did straight shots. She had an intention that evening of wanting to party and to have a good time. On her own admission, she was “drunk”. Williams testified in her opinion Zrdalic was drunk. Broadhead testified “we were all drunk”, with the exception of Williams. Lamont Rhue testified that he met up with Zrdalic and her companions at or near Williams’ apartment (Bruce and Wyandotte), on his evidence he believed that Zrdalic was “spun”, i.e. intoxicated. Cst. Meismer was of the opinion Zrdalic showed some signs of intoxication.
ii) Marijuana Consumption
There is no doubt that during the course of the evening, Zrdalic smoked marijuana. What is not fully known is where and how much.
It is important to note that Zrdalic denied having consumed drugs to Cst Meismer when she was questioned at the scene. It was clear to Cst Meimser that these an she made that inquiry of Zrdalic when Zrdalic was being questioned at the scene, as the following passage from the Preliminary Hearing indicates, which was accepted by Cst Meimer at trial:
Q: Did you make any inquiries of her as to whether or not she had consumed drugs?
A: She did offer that, she offered that the, the, ah, she indicated that she, there was alcohol consumption but not drug consumption.
Q: But not drug consumption?
A: She specifically indicated that.
Q: She specifically told you, you have a recollection of that?
A: I do.
Q: All right. Did—was the focus on drugs generically or drugs illicit or do you have a recollection of that?
A: It was—she was speaking, from what I can recall she was speaking of illicit drug consumption.
Q: Oh, she was, and, and she was indicating to you that she had not?
A: She had not.
Preliminary Hearing, January 8, 2009, p. 145-147
Zrdalic initially testified she had only smoked marijuana at Rudy’s apartment. She denied she had smoked marijuana earlier that day, in London, before leaving for Windsor.
She admitted that she told the truth at the preliminary hearing. Her evidence at the preliminary hearing on this point was as follows:
Q: All right. Well let’s back up a little bit before you left to go on the car ride. Did you, did you have a couple of tokes too?
Q: What’s that?
Q: No? Or earlier that day, did you smoke?
A: Ah, in the morning I did.
Q: Okay. This is back in London, right?
Q: All right, so when did you, what did, what did you have a couple of tokes when you got up?
Q: All right, and a couple of tokes throughout the day?
A: Around 2:00 pm.
Q: Around 2:00 pm?
Q: All right, and I mean, you did say that you smoke marijuana every day?
Preliminary Hearing, January 9, 2009, p 50-51
Zrdalic further she denied smoking marijuana outside of Shirlene William’s apartment, contrary to her evidence at the Preliminary Hearing:
Q: You smoked a joint, you’ve been drinking vodka, and then you smoke some marijuana out of a pipe.
A: Yeah. I really don’t get high off marijuana.
A: ‘Cause I smoke it every day.
Q: Oh, you smoke it every day.
Q: Oh, okay, so did you smoke earlier that day, before you got to that apartment?
A: Um, a little bit, yes.
Q: Okay. Where did you smoke that?
A: Um, outside of Sharlene’s building.
Preliminary Hearing, January 8, 2009, p.48-49
Zrdalic testified at trial that although she smoked marijuana at Rudy’s apartment, this was on the porch, not in the apartment. This again was contradicted by her sworn evidence at the preliminary hearing.
Zrdalic further testified that she did not smoke marijuana out of a pipe. Again, this is contrary to her evidence at the PH
Q: All right. I’m going to suggest to you, you did smoke something out of a pipe. You smoked some marijuana out of a pipe.
A: Marijuana, but in, not in a crack pipe.
Q: Oh, okay.
A: I smoked it in a marijuana pipe.
Q: Okay. I thought you said that you smoked a joint.
Q: A joint is, is marijuana.
Q: And the, we know what a joint is. It’s a rolled up marijuana cigarette, right?
Q: All right, and what, what was it a good sized joint?
A: No. It was just like a little joint, a skinny joint.
Q: Just a skinny joint?
Q: Okay, and so you smoked that joint, and then you smoked some marijuana out of a pipe?
Preliminary Hearing, January 8, 2009, p. 46-47
Zrdalic admitted that at that time in her life, she smoked marijuana every day, and that smoking marijuana had, for her, the effect of altering reality, of making sights and sounds appear different or heightened. Further, she admitted that she was experiencing those sensations that night.
iii) Crack Cocaine consumption
Zrdalic denied smoking crack cocaine, or smoking anything that “tasted weird”. She further denied that she knew what crack cocaine smelled like, or that she knew what the smell was like from being around friends of hers, when she was 16. All of these comments are contrary to her evidence under oath at the preliminary hearing:
Q: All right. When you smoke that, that pipe with marijuana in it, okay?
Q: Do you remember that?
Q: Do you remember complaining or saying to someone that…
A: It tasted weird.
Q: That it tasted weird.
A: It tasted weird.
Q: Okay. What tasted weird about it?
A: It just wasn’t like marijuana.
A: It had some other different tastes in it.
Q: All right, and you would know that because you are an experienced marijuana smoker?
A: I don’t smoke it every day all day.
Q: I understand that, but you know when something doesn’t, doesn’t have the marijuana taste to it, right?
Q: All right, so this didn’t have the marijuana taste to it.
Q: What type of taste did it have?
A: It just smelled weird.
Q: It, it smelled weird.
Q: …in what way did it smell weird? Did it smell…
A: It smelled like crack.
Q: It smelled like crack?
A: Or coke or whatever they, the white stuff, whatever. I don’t know.
Q: What that?
A: The crack.
A: I don’t know, man. Like…
Q: Do you know that for a fact, or is that what you think?
A: Like I’ve smelled crack before.
A: …when people used to smoke it like around me.
Q: All right.
A: My friends.
Q: Sure. Have you ever smoked crack yourself?
A: No, I haven’t.
Q: But you, you hang out with people that do?
A: I used to when I was like 16 years old.
Preliminary Hearing, January 8, 2009, p. 68-69
On December 10, 2008, Dennis Bannon, a private investigator employed by Lord Investigations (London), interviewed Ms. Zrdalic. The contents of that interview form an Agreed Statement of Facts that was marked as an Exhibit 91 in these proceedings. The report of the investigator states as follows:
At some point in the evening, she is not sure when, Mr. Wallace left the room to roll a joint. Ms. Zrdalic believes that Mr. Wallace put crack cocaine in the joint. He returned to the room, offered her the joint, which she accepted.
It should also be noted that Shirlene Williams believed that Zrdalic had been smoking crack cocaine.
iv) Contradictory Evidence and Emotional State
Even bearing in mind Ms. Zrdalic’s youth and lack of sophistication, there were numerous troubling inconsistencies in her evidence. These were not inconsistencies on minor points—they touch upon her state of mind, and her ability to perceive and recall the important events of this night.
For instance, Zrdalic testified at Trial she left the apartment first, and waited downstairs for the other two; this is contradicted by her Preliminary Hearing evidence where she stated the other two were downstairs first, waiting for her.
Further, she testified at Trial that at trial she smoked a cigarette while waiting on the porch/couch; at the Preliminary Hearing, she testified that although she had a cigarette, she did not light it.
I have referred above to other examples of contradictory evidence, namely: her evidence as to whether she knew what crack cocaine smelled like; whether or not she smoked something out of a pipe that smelled like crack cocaine; whether she smoked marijuana in Wallace’s apartment.
It should also be noted that she either lied or withheld information from Cst. Meismer as to whether she had been consuming illegal drugs; it was clear that she had been, but she denied it when asked directly by this police officer. Many other important aspects of her narrative were not revealed until cross-examination.
There are other factors that weigh against according this witness’ evidence the degree of certainty needed to found a criminal conviction. She admitted she was “careless with the truth”. During cross-examination, she frequently resorted to saying or claiming she did not remember. At one point, when defence counsel was cross-examining her on a prior inconsistent statement, she blurted out she did not remember, even though no question had been asked. This behavior leads to any number of alternative conclusions: she has a bad memory, she has a selective memory, or she is hiding behind the claim she does not remember, to frustrate the court’s search for the truth.
Further, Zrdalic that evening was emotionally distraught to the point of tears on at least three occasions: first, at Shirlene Williams apartment (before she had even met Wallace); second, at Wallace’s apartment in the bathroom; third, back at the Bruce Avenue apartment when the fire was on, where, on her own admission, she was “bawling”. Additionally, according to Lamont Rhue, she was “out of her mind” and was rolling on the ground by the bus stop when they were at Williams’ apartment after having left Wallace’s residence.
Additionally, Zrdalic’s version of events was contradicted by other witnesses. There were numerous contradictions between her evidence and that of Shirlene Williams, the one person at Wallace’s apartment who was sober. For example, Zrdalic denied touching, hugging or kissing Wallace, which was contrary to Williams’ evidence; and Zrdalic denied ever having gone to the back of the apartment, which again was contrary to Williams’ evidence.
Williams stated she witnessed Zrdalic and Wallace in the bedroom hugging and kissing one another, and that Zrdalic appeared to be enjoying herself. Zrdalic also testified she was screaming and yelling at Wallace to get away from her—that point was not corroborated by any other witness.
Finally, her evidence related to her leaving the apartment is contradicted by almost every other witness. Her evidence was she left and walked four houses down, thought she’d forgotten her sweater, then returned. She made no mention, in chief, of meeting Lamont Rhue in this time frame. She did not believe they went as far as Williams’ apartment, which is contrary to the evidence of Williams, Broadhead and Rhue. She testified that the process of leaving the apartment, walking, realizing she had forgotten her sweater, and then returning, took all of two minutes.
8. Analysis of Zrdalic’s Evidence – Wallace’s “Admission”
During her examination in chief, Zrdalic said Wallace approached her and told her he set her sweater on fire because she wouldn’t be with him. She was very brief in this part of her evidence.
In cross-examination, Zrdalic testified that she formed the opinion, on her way back to the fire scene, that Wallace had in some fashion set her sweater on fire. So as she was walking back to the apartment, where there clearly was a fire, she carried with her the thought that Wallace had set her sweater on fire. She admitted that she verbalized this opinion to Rhue, who challenged her on it.
The defence submits there ought to be some doubt that Wallace even said what Zrdalic purports. To accept this, one would have to look past her admitted drunkenness, her admitted marijuana consumption (which had the effect of altering reality for her), her probable consumption of crack cocaine, and her emotional state, and then be satisfied that Wallace said what she purports he said, over the din of sirens, in a situation described as “pandemonium” by one police officer, and which statement wasn’t corroborated by a single witness.
Even accepting Zrdalic’s version of events, in chief this witness left the impression that Wallace volunteered this statement to her. However, in cross-examination, she testified that she in fact accused Wallace of having set her sweater on fire. That she would make such a comment first is consistent with her mindset as it related to her sweater and what she believed Wallace had done to it while she was walking back to the Bruce Avenue residence.
Seen in this light, Wallace’s statement is hardly an admission at all–it is repeating back to Zrdalic what she said to him, what she accused him of. The balance of the “conversation”, if one can call it that, underscores just how ludicrous this is–Zrdalic, after Wallace repeats her allegation back to her, purportedly then tells her he did this “because you wouldn’t be with me”, and she engages in this banter by telling Wallace, “why would I be with you, I don‘t even know you”. All the while police, ambulance personnel, and firefighters are working a fully involved fire. She is more concerned about a sweater with a photograph in it, and why Wallace can’t be with her because he doesn’t know her, than a fully involved house fire right in front of her.
Further, it is entirely likely that even if Wallace said what Zrdalic purports, that it was said in jest. Zrdalic admitted as much when she was interviewed by the police later. This excerpt from her police interview was put to her at trial and it was adopted by her:
RZ: Like I ran across the street where the police were and then that’s when they got him right there.
GG [Det. Glenn Gervais]: Okay. Where does he say the things that he says to you though about your sweater?
RZ: He was like: Oh I burnt uh your sweater because you won’t be with me. You don’t love me and I love you. I’m like: You don’t even know me. How can you love somebody you don’t even know them.
RZ: First of all.
GG: And he’s like: Oh whatever then. Blah, blah, blah, blah. And like my kid’s picture was in that sweater. Like that’s the only thing that broke me down is that. I didn’t care about the sweater.
RZ: Did he say anything about the house being on fire?
GG: No. He said—oh he came out. He’s like: Oh, who, who set the house on fire? And he’s laughing. Like he has a giggle and like you can see it. And when he’s like: Oh wait. I did. I goes: Where’s my sweater? He’s like, Oh, it’s on the couch burning. Like whoa. Hold up. Like I couldn’t say nothing else. That’s it. And then I just went to go talk to the cops.
Renaila Zrdalic interview – page 30
Zrdalic also stated that when this dialogue was taking place, she was “hiding” behind Broadhead. Although Broadhead was generally a poor witness, she does not recall this at all.
9. Zrdalic’s Evidence—The “Flaming” Sweater
The most important aspect of this case relates to how this fire started. Even on that issue, the evidence of Zrdalic is totally inconsistent. Generally, her evidence suggests she left the apartment and came back, only to find the porch in flames. In cross-examination, she was drawn to a statement she made to the defence private investigator. She was quick to state she did not remember providing a statement to the investigator, although she did admit that various parts of her statement to the investigator were true (the name of her son, the school she went to, etc.). So it is reasonable to conclude that she met with the investigator as suggested to her by defence counsel.
In that meeting, her comments on what she observed when she returned to the house were as follows:
Mr. Wallace “chased her” downstairs and out of he building. She sat on the couch of the veranda of the residence to catch her breath. She set her sweater on the couch. It had a picture of her son Daniel in the pocket. Mr. Wallace came down stairs after her and chased her down the street. She decided to go back to get her sweater because it had her son’s photo in it. When she got back the house was on fire. Her sweater was on fire and was being waved around by Mr. Wallace. He said “this is what you get for not being with me.” She decided to back to Sharon’s residence when the EMS arrived. The police stopped her to inquire as to her well being. She wound up giving a statement to the police of the incident.
The significance of this statement cannot be highlighted enough—she told the investigator that she actually saw Wallace holding her burning sweater. This cannot be true, and it stands as the hallmark of a witness who is not only careless with the truth, but would say practically anything that comes to mind.
In conclusion, the defence submits that the evidence of Zrdalic ought to be rejected. At the time of the incident, she was intoxicated and emotionally unbalanced. Her evidence and statements show significant contradictions on important points. She has the ability to misrepresent the truth and on her own evidence she has a cavalier regard for the truth. Her evidence is inherently unreliable and is not credible.
It should also not be overlooked that Mr. Wallace is charged with sexually assaulting Ms. Zrdalic. The defence repeats and relies on the comments made here as it relates to her credibility and reliability in terms of whether her evidence can be accepted that Wallace sexually assaulted her. Important to this consideration is the evidence of Shirlene Williams, which places Zrdalic in Wallace’s bedroom and the two of them, Wallace and Zrdalic, engaged in kissing and hugging type behavior. Further, Zrdalic claimed to have yelled to attract the attention of the other two that Wallace was sexually assaulting her—neither Williams nor Broadhead confirmed that. On balance, the evidence on this count is insufficient to found a criminal conviction.
10. Shirlene Williams and Kathy Broadhead
Shirlene Williams was called by the Crown as part of its case in chief. As noted, she was an associate of Kathy Broadhead’s and met with Broadhead and Zrdalic the night of the fire. Although Kathy Broadhead was called by the defence, because her evidence and that of Williams is along similar lines, she is included here in this part of these written submissions. Broadhead, for her part, was intoxicated and had been consuming drugs that evening. She also suffered from a birth injury that inhibited her memory.
As of September 2009, Williams lived in an apartment at Bruce and Wyandotte, in the City of Windsor. She met with Broadhead and Zrdalic on the offence date. She had not met Zrdalic before this.
The three of them went to the liquor store by the bus depot (the liquor store on Church Street, downtown Windsor). Williams believed they purchased Bacardi Rum. They went up the street and met with Wallace, who was on his bike. Broadhead and Zrdalic started talking to him. She had seen Zrdalic drinking with Native people. Drinking was not permitted in her residence.
It was getting dark and they walked to Wallace’s apartment. They sat around Wallace’s apartment. There was another person there, she believed he was Native. Lamont Rhue attended Wallace’s apartment. He knocked on the door, but Wallace wouldn’t let him in.
The others were smoking marijuana. Wallace was smoking crack cocaine. Everything was all right. Zrdalic was complaining to her aunt—Broadhead. Renaila said she didn’t like the way Wallace was acting.
Williams testified she saw the two of them in the bedroom. They were hugging each other. Wallace was touching Zrdalic’s feet. Everyone was still getting on pretty well. She left a few minutes later.
Williams testified it was Zrdalic’s idea to leave. She didn’t want to be around Wallace. She thought it was around 10:00 when they left. They all left at the same time, she believed Broadhead left first, and she and Zrdalic followed behind in a line. Wallace was upstairs in his apartment.
They sat on the couch downstairs. The couch faced the front door. She and Zrdalic shared a cigarette. They sat there for a couple of minutes, then left. She didn’t see what happened to the cigarette. They were sitting on the couch for about 10 minutes. Lamont came to the porch, he lived on the 3rd Floor. Lamont was peeking out the front door.
They walked towards the river. It was a 5 minute walk. They sat at the bus stop on a little cement bench, at the intersection of Wyandotte and Bruce. She went in to her apartment. When she came back out, Lamont was there with the two girls (Zrdalic and Broadhead). Zrdalic and Lamont decided to go back. They had been at the bus stop area for 5 minutes, 10 minutes at the most. Zrdalic realized she had forgotten her sweater. They waited for her at the bus stop. Lamont was “halfway down”, he yelled there was a fire. Zrdalic was walking beside Lamont, he was riding his bike slow.
Williams testified she and Broadhead went back to the Bruce apartment. There was a fire on the couch, with 2’ flames – that was the area she could see, there were “boards” blocking her view. Zrdalic started crying about her sweater and her son’s picture in it. Lamont left when they got to the house. She saw “Ruby” (Wallace) coming out from his front door. He had a small fire extinguisher, he did nothing with it. He was talking to himself, she didn’t know what he was mumbling. She didn’t know if there was any interaction with them. She thinks Wallace tried to talk to Zrdalic. Zrdalic tried to walk away from him. She didn’t see him do anything else regarding Zrdalic. Wallace tried to spray the fire extinguisher on the girls. He tried to set a recycling bin on fire. His lighter didn’t work.
11. Lamont Rhue
Lamont Rhue also testified for the defence. He also resided at the Bruce Avenue apartment at the time of the fire. Rhue testified that on the night of the fire, he went to Rudy’s (Wallace’s) house. He was involved in obtaining crack cocaine—a 30 piece—for two men. He described one as white, 5’ 8”, 180 lbs. He testified one was “aggressive”. Rhue believed that they were “smoking”.
Rhue testified he was in his apartment and the doorbell was ringing a lot. He testified he and Wallace went down the stairs to investigate. The two men were threatening Wallace. One person used the “N” word.
Rhue testified he and Wallace went upstairs to Wallace’s apartment. Rhue had met a girl in Wallace’s kitchen—she knocked on his (Rhue’s) door. The girl went out on the porch. Wallace came out and he wanted her back inside while Rhue was in the hallway. Wallace wanted to try to get her back in the apartment. The girl’s mother and another native girl came out of Wallace’s apartment and joined her on the porch. Most or all of the time that they were on the front porch they were yelling Rhue’s name. Rhue waited a few minutes; he didn’t want to be bothered with them.
Rhue testified he waited about five minutes until they got from Elliott Street to Wyandotte Avenue. He testified he met them (the three women) at the corner. They started talking. Rhue testified the native girl (Williams) did not say much. The mother (Broadhead) said she was going to “sell her pussy” and make some money. The other girl (Zrdalic) was drunk and, according to Rhue, “out of her mind”. She fell on the ground laughing and giggling. Zrdalic was on the ground and she said “I forgot my sweater”. The native girl said “I think you left it on the couch”. Zrdalic wanted Rhue to go back with them. Everyone was intoxicated.
Rhue went down the street, back towards the Bruce Avenue apartment. He testified he saw flames. He walked out on the street and he said “that is my house”. He stood at the corner and heard fire trucks. The girl—Zrdalic–was on the ground. He said or thought, “hey, what’s wrong with this girl?”. Rhue testified Zrdalic was blaming Wallace for the fire: “She took out of her own mind that he burned her sweater”. She said that “he [Wallace] must have burned it up and started the fire”. Zrdalic said that to Rhue and to the other two women standing there as well. His response was, “what the hell.”
The three women took off and went down to the fire. Rhue didn’t want to be involved so he went the other way. He stood on the corner for 10 minutes and then he heard more fire trucks. He had a bicycle with him. He went back there. He said that one of the women came running up to him saying that “Rudy started the fire, Rudy raped her.” Zrdalic said to Rhue, “because I wouldn’t screw him, he burned the house”. Rhue said, “Hell no, she is blaming [Rudy] and she had seen the same thing I saw.”
It should be noted that Rhue has a fairly extensive criminal record. During cross-examination, Crown counsel pointed out inconsistencies in his evidence, particularly related to the timing of the two crack purchasers’ attendance at the Bruce Avenue residence. However, Rhue was not seriously challenged as it related to his interaction with Zrdalic, particularly as it related to her behavior and comments after she and the others left the residence, and as a point in fact, much of Rhue’s evidence on these points was corroborated by Zrdalic herself.
12. Evidence of Chris Wilder
Evidence was heard from Chris Wilder that he was responsible for setting the fire. Wilder testified that he and a friend, Darren McKay, set the Bruce Avenue apartment on fire. Wilder testified on December 7, 2009.
The manner in which Mr. Wilder came to testify is of some importance. He was in a 16 week residential treatment programme at the Brentwood Home for Recovering Alcoholics (“Brentwood”). A recovering drug addict, Mr. Wilder “came clean”, so to speak, and informed Brentwood staff that he had been involved in the setting of the fire on Bruce Avenue. He was advised to contact counsel, and he did so. Mr. Andrew Bradie, a senior criminal defence lawyer in Windsor, was contacted and took Mr. Wilder’s retainer.
It should be noted that there is no evidence of any association of the accused and Mr. Wilder. The two are not known to one another. There is no suggestion or any evidence to suggest any inference of collusion between Mr. Wallace and Mr. Wilder, nor of any inference of an improper motive for Mr. Wilder to come forward with his confession to the Bruce Avenue fire.
As indicated, it is known that Mr. Wilder contacted Mr. Bradie. Mr. Bradie provided an oral submission to the court (with Mr. Wilder’s consent) regarding his representation of Mr. Wilder—namely, that Mr. Wilder contacted him with a view to relieving himself of a “heavy burden”. Mr. Wilder provided Mr. Bradie with a statement detailing his involvement in the Bruce Avenue fire. Mr. Bradie, as his counsel, negotiated an arrangement with senior Crown counsel Mr. Walter Costa (who had carriage of this matter until September 2009), in which Mr. Wilder would provide a statement to the Windsor Police regarding his knowledge of the Bruce Avenue fire. In exchange, Mr. Wilder was granted prosecutorial immunity with respect to the Arson/Manslaughter, but he would potentially be open to a prosecution for Public Mischief or Perjury, depending on the circumstances of the case as it continued to unfold.
Mr. Wilder attended upon Windsor Police on August 27, 2009, and met with Det. Glenn Gervais. Wilder provided a sworn videotaped statement detailing his involvement in the Bruce Avenue fire.
At trial, Mr. Wilder testified on behalf of the defence. Mr. Wilder testified that at the time of the arson, he was a binge drug user, his drug of choice being crack cocaine. He would use crack cocaine with his then-friend, Darren McKay, whom he had known for ten years.
On the night of the arson, Wilder testified he was with McKay and they were using crack cocaine. The cocaine was obtained from the Bruce Avenue apartment—he and McKay traveled there together. McKay’s residence was on Caroline Street, within walking distance of the Bruce Avenue address. Wilder testified he had also consumed four to six beers. Wilder testified in cross-examination that when they went to get the drugs it was light out, it was “a little bit of light out”. He did not recall the actual time. At the Bruce Avenue address, McKay purchased some crack cocaine. The two and McKay’s girlfriend consumed the crack cocaine together and, when back at McKay’s residence, McKay was “frenzied” by being shorted on the purchase. McKay obtained a jerry-can of gasoline, and poured some into a pop bottle.
McKay told Wilder to bring the bottle with the gasoline with him. The two then returned to the Bruce Avenue apartment where Wilder reached over the railing and poured the gasoline onto a couch on the porch. Wilder testified he was not sure if he moved his arm back and forth, he said it was possible, he was not sure, he just poured it. McKay lit an object and threw it on the couch, igniting the gasoline. Wilder testified the reaction was a “little explosion–poof”. He said there were flames and a bit of heat. He said he was about ten feet from the porch when McKay did this. He testified the flame started big “because of the gas” but that it burnt down. He said the fire was “not as big when the gas burned off”. He said he saw flames, “probably like five feet from the top of the couch to the top of the flame”. He said the flames went down and that was when he left. Wilder’s observations of this accelerant based fire are corroborated to a certain extent by the evidence of CFS scientist Stuart Sagara, who gave evidence related to the combustible properties of gasoline.
Much was made of the fact that Wilder made no observations of smoke, however, neither did any of the other lay witnesses.
Wilder testified at the time he was under the influence of crack cocaine. He stated he stood there for 20 seconds, in disarray. In cross, he said that time estimate was probably incorrect. He testified it felt like forever—it was probably a matter of a couple of seconds. He observed McKay running southbound towards Caroline Street. He and McKay returned to McKay’s residence, and McKay told him not to mention a word of this to anyone—they were to “take it to the grave”.
Wilder testified that he returned to the fire scene later that evening. He testified it was partially light out. In cross, he said that was what he thought, but now he knows that it wasn’t light out, because of the time. He said he “had to” go back. He looked at the front of the house and it was on fire. He was, in his words, “blown away”. He told McKay what he had seen. McKay told him to “shut up, go to your grave with it”. They all went to bed; Wilder laid downstairs on the couch.
The next morning, he again went by the fire scene and later read news reports about the fire, and became concerned when he learned there was the possibility of serious injury to some of the occupants. Wilder broached these concerns with McKay, but got nowhere with them.
It should be noted that Wilder made mention of his involvement in the Bruce avenue fire to his employer, Mr. Ron Schiller, sometime in the spring of 2009. Mr. Wilder, who was employed as a labourer/home renovator, was working at a property nearby to the Bruce Avenue apartment. Ironically, the property was owned by Mr. David Postma, the owner of the Bruce Avenue residence. At that time, Mr. Postma attended at the site Wilder was working at, and, upon after being apprised to Mr. Postma’s name, Wilder told his employer that he had some involvement with the Bruce Avenue fire and that the police had the wrong guy. His employer told him he should report it to the police. Mr. Schiller was not called by the Crown to rebut Wilder’s evidence on this point. While this evidence was introduced primarily as part of the narrative, it also serves to rebut any argument advanced by the Crown that Wilder’s account of the Bruce Avenue fire was recently fabricated.
It should be noted that Wilder was completely cooperative with the police. He volunteered to the police to be the subject of a lie detector test. While those results would never be admissible in court, it is indicative of his ongoing cooperation with the police. The police never took him up on his offer. The taking of a lie detector test is not something the police can force upon an individual. And whatever the merit or lack of merit of such a test, it is known that the police requested of Darren McKay, Wilder’s accomplice, that he take a lie detector test, which he—on the advice of counsel—declined to do. No evidence was tendered by the Crown to rebut Wilder’s contention that he was anything but cooperative with the police, or that he had nothing to gain by coming forward other than to clear Wallace—who he did not know—and everything to lose, including the publishing of his name in the local newspaper and his prior conviction for sexual assault. Wilder stated to Crown counsel during his cross-examination: “Do you think I would come down here and say I did something when I didn’t. I thought about it. I am here in the middle of it to tell the truth. I told you what happened. The rest is in your hands. I am trying to make amends.”
It was suggested to Wilder that he his involvement in the Bruce Avenue fire was a dream. His response was: “It was pretty odd that I dreamt a house was on fire and it is on fire. I am here to tell you guys what I did. I have to make amends. There is an innocent man behind bars and a there is a family that lost their daughter. I want to make sure the right person is responsible.”
13. Wilder’s “Re-enactment” Video
It should be noted as well while addressing the Wilder/McKay issue, that Wilder continued his cooperation with the Windsor Police by attending at the crime scene and doing a re-enactment with them. This took place on November 17, 2009. Wilder was in the company of Det. Glenn Gervais and Det. Greg Loebach. Det. Loebach was the camera operator. Wilder identified Carolyn Postma as being present during this videotaped interview—he had seen her photograph in the Windsor Star in front of the property shortly after the fire.
In the middle of this police investigation, property owner David Postma (“Postma”) appeared at the Bruce Avenue apartment and confronted Wilder about the arson. During this “conversation” a technical problem arose and the visual component of the interview was disengaged, leaving only the audio. Wilder testified that he observed Windsor Police speaking on a cellphone prior to this point, and he believed they were in communication with Postma. The combination of these factors leads to the conclusion that Mr. Postma was invited by the police to attend at the property and confront Wilder. No explanation was offered in reply from Det. Gervais or Det. Loebach as to why or how Postma knew Wilder was at his property, and how coincidentally at the same time Postma appeared a technical “malfunction” was visited upon the investigation.
Mr. Postma attended at court during the trial and was asked to leave the courtroom during this portion of the evidence. He did not testify at this trial to rebut Mr. Wilder’s claim that his attendance at the residence during this part of the investigation was not accidental.
During this off-camera exchange, Postma wanted to know of Wilder why he set the house on fire. Wilder testified that Postma was “swarming around him” and he kept “trying to get in front of me”. Wilder responded, “I did not set the fire”, or words to that effect. Wilder stated that he was there to answer police questions, not his. In his evidence, Wilder was cross-examined on this point and explained he took it his statement to mean that McKay was the one who lit the flame that started the fire, not him.
The propriety of this type of investigative technique is questionable. The inference that it was deliberate is overwhelming. It can only be seen, at a minimum, as part of an effort to rattle Wilder. The whole effort in videotaping Wilder and taking him through his paces, so to speak, was aimed at getting as many details as possible from Wilder, with a view to discrediting him. Crown counsel in September 2009, before the re-enactment video but after Wilder’s initial police interview, communicated with the Fire Marshall about Wilder’s version of events and had passed along an opinion that it was “bull”. A copy of that email correspondence was marked as Exhibit 86 in these proceedings. Seen in this light the only purpose in obtaining this further videotaped statement from Wilder would be to use it to attack on Wilder’s credibility or reliability.
Alternatively, if it is suggested that this tactic was part of a search for the truth, it should be noted there was no evidence that Zrdalic and her witnesses were taken through their paces to find out what their timeline was in terms of their leaving the Bruce Avenue apartment, attending at Williams’ apartment, and then returning to Bruce Avenue. An accurate timeline would have been a critical piece of information for the Fire Marshall regarding his opinion and that a smoldering fire was not possible. What we were left with were the vague recollections of drunk, stoned or disinterested witnesses who could only give broad guesses on this important point.
On the other hand, the scrutiny accorded Wilder in this investigation was to the utmost degree. Wilder gave a sworn videotaped statement to Detective Gervais, he testified under oath at Wallace’s bail review, where he was cross examined by the Crown, he gave a further videotaped statement at the crime scene where he was essentially ambushed by David Postma, he had excerpts of his evidence forwarded to the Fire Marshall prefaced with editorial comment, and testified again at trial and was again cross examined. No wonder there were a few inconsistencies in his evidence. As Wilder testified: “There might be little errors with my words, I am not perfect. I am not a memorable guy. I am 100% sure of what happened.”
14. Crown Evidence in Reply – Darren McKay
McKay testified on his own behalf on December 18, 2009, and not surprisingly denied setting the fire with Wilder or anyone else. McKay testified at the time he was living at 595 Caroline Street, Windsor. He had known Wilder for 15 years. He testified that the day of the fire he was working with his cousins doing drywall. He did not see Wilder the day of the fire and he did not attend 790 Bruce that day. He testified that at that time in his life, he was addicted to oxycontins. He testified he was not a crack cocaine user. He testified he first used it “about six months ago” and he got sick.
McKay testified he was contacted by the police in September 2009 as a witness to something. He gave a videotaped statement to Det. Gervais that was not under oath. McKay told Det. Gervais he had not seen Wilder since a year ago. He said he wanted to find Wilder and “kick the shit out of him”. McKay testified he told Det. Gervais he never had a problem with crack cocaine until about a half a year ago. McKay said he was “self-medicating” with “oxy’s”, meaning oxycontins. Methadone was prescribed for him. He said he was working, drywalling 12 hours a day. He would go home, sleep, and then back to work.
McKay testified he knew about the fire. He read about it. He knew about it a couple of days later. He didn’t know which house it was—it was around the corner. During that time, he was working from “sun up to sun down”. He was asked if he knew where he was when the fire took place—he said he was either home in bed or at work during the day. He testified he would go home and lay down and pass out. Around the time of the fire, he was working six days a week.
When Det. Gervais told him he was involved in setting a house on fire, he said it “floored him”. He told his wife/girlfriend Margaret Berlasty—she was with him at the police station. He told his wife about the contents of the interview with Det. Gervais. He was upset. He did not mention in his interview with Det. Gervais that he was working 12 hour days—he had to think about what he was doing. He called his cousins to remind them.
He suggested that Wilder had a motive to incriminate him in the fire—namely, that he had seen to it that Wilder was fired from his landscaping job, and that Wilder had stolen Christmas money from McKay’s girlfriend, Margaret Berlasty. McKay agreed that he never reported the stolen money to the police. He made one phone call to Wilder’s boss and that was all he could do. He had no interest in getting the police involved.
15. Crown Evidence in Reply — Margaret Berlasty
Berlasty testified in reply and also corroborated McKay’s “alibi”, if it can be termed that. She knew that the police had contacted McKay in late August 2009. McKay’s videotaped and unsworn statement was given to the police on September 2, 2009. Berlasty testified that she accompanied McKay to the station where he was questioned about his potential involvement in the Bruce Avenue fire. However, she made no effort to contact Windsor Police to let them know they were investigating the wrong man.
Similarly, no complaint was ever raised about Wilder supposedly having stolen their Christmas money. No evidence was tendered to support McKay’s claim that Wilder was fired at McKay’s behest. The person who was in the best position to corroborate this claim of McKay was Mr. Schiller, who was not called to give evidence in this trial.
16. Evidence of the Fire Marshall, Keith O’Leary
The court heard evidence from Fire Marshall Keith O’Leary, who was qualified to give opinion evidence on the issue of the origin and cause of the fire. He had prepared a report on this issue, which was marked as Exhibit 71 in these proceedings. The Fire Marshall testified both in chief and in reply.
17. The Fire Marshall’s Report — Summary
The Fire Marshall’s conclusions as it related to the Bruce Avenue fire were as follows:
* There was a single origin for the fire, being outside the structure at the southwest corner of the porch;
* The fuel load was a full sized cushioned couch in that location on the wood porch;
* There was no naturally occurring ignition source at that location;
* An open flame was introduced to the couch shortly before the alarm was called;
* Through an intentional human act, combustible material present (cushion couch material) was introduced to the area of origin (clothing) which was ignited by means of an open flame to cause the fire.
The Fire Marshall in his report “rejected” the possibility of a cigarette-initiated fire:
“The hypothesis that included the accidental ignition by way of an improperly discarded cigarette was rejected based on the following. The sifting of fire debris in the area of origin as well as the remaining sections of the porch revealed no smoker’s material present” (3.2.2)
Similarly, the Fire Marshall in his Report discounted the possibility of an accelerant-based fire because:
The Centre for Forensic Sciences results were negative for any liquid accelerant. However, in this case no liquid accelerant was required to initiate the fire because sustained fire growth would have continued after an open flame was applied for sufficient time to commence the chain reaction process, given the nature of the fuel load present (full sized cushion couch).” (3.2.2, sub 2).
In considering all of the information made available to him, the Fire Marshall was ultimately of the opinion that the “most probable” hypothesis was that set forth in his conclusions, namely “an intentional human act involving the introduction of the combustible material of the couch to the area of origin (clothing) which was ignited by means of an open flame to cause the fire” (Trial, December 8, 2009, p 37).
18. Fire Marshall’s Evidence – Human Actor Responsible for Arson by Introducing Burning Object to Couch
The theory of the police and the Crown is that Wallace set Zrdalic’s sweater on fire that set the couch on fire. Many of the foundational facts upon which the Fire Marshall sought to base his opinion were not established. Numerous uncertainties in the underlying facts have previously been discussed in these submissions, particularly those emanating from Ms. Zrdalic.
The Fire Marshall testified he did not undertake any first hand interviews of any witnesses, although in his report he talks freely that his conclusions were based in part on information received “from the independent witnesses to the case” (Report, Part 5, Conclusion). He did not believe it was necessary for him to interview anyone—he was content to rely on the information that the police provided him and in fact was of the view that the police were the “foremost authority in determining credibility”:
Q: We sort of went through this in your examination in-chief and in cross-examination, where we talked about, you know, the dangers in relying on lay witnesses.
A: Yes, sir.
Q: And, you know, those dangers are as present as they are related to this accelerated fire as they are related to other issues related to people who consume drugs, this type of thing?
A: Well, eye witnesses are accepted criteria for forming an opinion, based on 921.
Q: That’s right, but doesn’t 921 use the word credible in that assessment?
A: It does, and the police are the foremost authority in determining credibility.
Q: All right. So if the police have the view that someone’s credible, you share that opinion?
A: Yes, sir.
Q: You don’t engage in any independent analysis or any focus yourself on that determination? The police tell you, that’s good enough for you?
A: If the police are investigating at the risk of introducing a false memory I would not seek to then independently interview those witnesses.
Q: Well, sir, you never even looked at the actual witness statements themselves?
A: Not till after the preliminary inquiry, that’s correct.
Q: So you formulated your opinion based on what the police have told you pretty much, right?
A: In terms of where it was significant, the opinion, yes, sir.
December 8, 2009, Transcript p 19 – 20
One piece of information that was given him was that the police had a man in custody charged with arson. This was found in his report. It was a piece of information that had the effect of shifting his opinion to a finding there was a deliberately set fire. During his cross-examination in reply, the Fire Marshall essentially admitted as much:
Q: Can I ask you sir, why is that important that the police did something?
A: Because they had investigated the cause of this fire, and determined that criminal charges were appropriate.
Q: So that fact that the police arrested somebody factors into your opinion related to the isolation of the ignition source, is that correct?
A: It is a known fact, sir.
Trial, December 8, 2009, p 35
19. Shifting Source Information Provided to the Fire Marshall
A significant point of concern in this case relates to different information the Fire Marshall was operating from as it related to the Zrdalic line of inquiry—namely that there was credible evidence that Zrdalic had witnessed the commencement of the fire.
The Fire Marshall, in his Report, operated from the assumption that this was the case:
The police investigation confirmed that Person 5 had observed Person 3 with a flaming article of clothing. Person 3 then placed the flaming article of clothing on the couch located in the southwest corner of the porch. This information resulted in an arrest with criminal charges.
It is known that Person 5 was Renaila Zrdalic. No evidence was heard from her that she observed such conduct.
The Fire Marshall testified later that in fact this information (that Zrdalic had seen the “flaming article of clothing” being placed on the couch) was not even true, or at a minimum it was no longer believed to be true by the police. The revised belief was that someone was told that the fire was deliberately set. When this belief was formulated, and why the previous belief was held was rejected, was not explained in the course of this trial. The Fire Marshall was cross-examined on these points in his reply evidence:
Q: So, and I’m not particularly criticizing…your job is not to conduct a police investigation. Your job is to investigate a fire?
A: That is correct.
Q: And, you know, you generally accept what the police tell you at face value?
A: There’s no reason for them to lie, sir. And I may add that it was consistent with all the known facts in accordance with 921.
Q: Do you remember testifying earlier that you essentially held an opinion that the fire was caused by a person holding a flaming object, like a sweater. Do you remember that?
A: Yes, sir.
Q: And you got that information from the police, didn’t you?
A: Yes, sir.
Q: And you later discarded that hypothesis didn’t you?
A: Once the police confirmed that was not correct information, yes.
Q: Okay. So when the police tell you that they think that someone was carrying a burning object, you accept that, right?
A: Yes, sir.
Q: And then when the police later tell you, no there wasn’t a burning object, you accept that?
A: Yes, sir, and then factor that into my opinion.
Q: The fact of the matter is, sir, is you accept what the police tell you at face value. You don’t undertake any investigation. You don’t ask to look at any witness statements or do anything, right?
A: I accept what the fire department says initially as well, followed up by statements eventually.
Q: I wasn’t asking about the fire department. I was asking about the police.
A: I apologize. It was an example.
Q: My question remains.
A: Yes, sir.
Trial, December 8, 2009, p 21 – 22
These aspects of the case are troublesome.
First, it serves to inform Zrdalic’s testimony. Somewhere buried in the mass of information regarding this investigation is the suggestion that Zrdalic claimed to someone that she in fact saw Wallace with a burning article of clothing. That was not in her evidence. When the question was put to her in cross-examination that she said the same thing to an investigator, she said she did not remember.
Second, it is this piece of information which purports to be a link between Wallace and the start of the fire. The Fire Marshall relies on this erroneous information as the cornerstone to his opinion. Seen this way, the Fire Marshall’s “probable hypothesis” and elimination of other potential causes in his Report is nothing more than a restating of the police and Crown theory of the case:
MR LIDDLE: Okay. Let’s start from the top. It started off you—this happened when you went there that day, right?
Q: Your initial investigation. You had information that someone said there was a flaming article of clothing that was thrown on the couch.
A: That’s correct.
Q: Okay. And, you know, to use the vernacular, you ran with that information, right?
A: No. That was included in the information during the course of the scene examination.
Q: Well, you didn’t question it, correct?
A: No, that’s correct.
Q: All right, so at a later point in time, some time, was it before or after the preliminary hearing, can you tell us?
A: Sorry, which….
Q: This information about the flaming article of clothing being taken off the slate, to use my terminology. His Honour asked you about that. I’m trying to pinpoint when you got this information.
A: I don’t recall.
Q: Can you even say if it was before or after the preliminary hearing?
A: It was before my formal report was filed.
Q: And you had by that point excised that piece of information?
A: Yes, sir.
Q: That the flaming article of clothing was thrown on the couch, right?
A: All right. Then it would appear, at least on this exchange of emails around September 1, 2009, someone is providing you with information that a button and a zipper from the sweater were found in the couch remains?
A: That’s what that point says.
Q: All right. When you read that, did you say to yourself, you know what, that’s not the case at all? We eliminated this whole notion of the sweater before the preliminary hearing?
A: No, I could not say that.
Q: All right. Did it cause you any concern whatsoever?
A: Again, I am there to assist the police with this fire investigation. They are the driving force behind whether or not (a) suspects are identified, whether or not charges are filed.
A: So they provide me with, in some cases, information that they may, they may not, sorry, they may not supply me with information that they believe—they will do that for whatever reason.
Q: Well, in this particular case you have no way of knowing, right?
Trial, December 8, 2009, p 25-27
It should be noted, following the development in this case of Mr. Wilder coming forward, that the Fire Marshall was contacted with a view to commenting on Wilder’s statement. That correspondence was marked as Exhibit 86. Aside from an editorial opinion from Crown counsel to the Fire Marshall that Wilder’s statement was considered to be “bull”, there was an attached Appendix that contained additional information that a sweater zipper and a sweater button were found in the couch remains. The source of this information is not known. No evidence was heard on this point in the trial. Further, the Fire Marshall’s own report made no mention of sweater buttons at all, it only referenced a zipper in relation to a zipper from a couch, not a sweater, and he was at the scene when the couch debris was being sifted. This concern was canvassed in reply in the following passage:
Q: And then this item here, number three, button and zipper, it says, from sweater were found in couch remains.
A: That’s what it says.
Q: Now, is that from your fire investigation report….
A: No, sir.
Q: …and photos?
A: No, sir.
Q: Okay. So what do you make of that? I mean, this is information that is being provided to you from the Crown Attorney’s office with a view to you generating an opinion, right?
A: Yes, sir. It wasn’t entirely possible as the police had took those exhibits for further examination, but it had been confirmed somehow that those were in fact what those items were pertaining to. It was possible, but unconfirmed to me other than what you just read there.
Q: Okay. So someone passed along to you a note, I suppose, that there was a button and a zipper from a sweater that was found in the couch remains?
A: That’s what it says.
Q: In your opinion, to the extent you can comment on this, there’s no mention made anywhere of a button, correct?
A: In my report?
A: That’s correct.
Q: And in your report the only reference that you make to a zipper relates to cushions?
A: Possibly, yes, correct.
Q: There’s certainly no mention anywhere in your report about anything where a button is related to a sweater or where a zipper is related to a sweater?
A: That is correct.
Q: So what did you make of this when someone was sending you a note that says, fire investigation report and photos say button and zipper remains from sweater was found in the couch remains?
A: Coming from the Crown’s office, it was, as I said, possibly further evidence that had come forward, or been confirmed through police sources, unknown to me.
Q: Okay. So you went from initially thinking that there was a lit sweater, because you based that on information from the police, right?
Q: Your rejected that opinion or fact I suppose at a later point in time because the police told you that, you know, that wasn’t accurate or whatever the case was?
A: It was corrected, therefore, removed.
THE COURT: How was it corrected?
A: The police confirmed that once formal interviews had taken place that that was not in fact the case.
THE COURT: Did they give you any information on that?
A: Other than…?
THE COURT: As to what interviews caused them to form that opinion?
A: Of the three females that were in attendance prior to the fire.
MR LIDDLE: When did you get that information?
A: Sorry, what information?
Q: The information about the no flaming article of clothing. When did it change from being a flaming article of clothing to being taken off the slate?
A: I cannot recall, sir.
THE COURT: Well, what did they say to you that did cause, or what information did they give you that did cause?
A: The information was then that one of them had been told that the fire had been set through the ignition of the sweater and placement on the couch.
THE COURT: I am sorry? One of them had been told what?
A: That one of these three females had been told that the sweater was ignited and then placed on the couch.
THE COURT: I do not know whether you are confused, but I certainly am.
Trial, December 8, 2009, p 23 – 25
In his Report, the Fire Marshall’s only reference to the couch remains was as follows: The southwest corner of the porch included the remains of a cushioned couch, evidenced by the charred wooden frame remains and the metal support springs and zippers remains (possibly for cushions) on the floor in that location. The foam padding and the material cover of the couch were completely consumed. As to the shifting information the Fire Marshall is receiving, it appears to him to be of little consequence:
Q: Sir, if you knew that, we’ve heard evidence in this case, as well as from a hypothetical perspective, you know, that no one ever saw anyone waving around a piece of lit clothing, does that cause you any concern?
A: No, sir, because of the timeline that we’re dealing.
Q: Oh, the timeline?
A: Yes, sir.
Q: Okay. From people that have been smoking marijuana and consuming alcohol to the point of drunkenness. Do you consider those to be very reliable timelines?
A: That was not confirmed by myself, sir.
Q: Do you not feel, sir, that you have some form of a duty to sort of look into these things when you are putting your name to an important opinion?
A: I rely on the police, sir.
Trial, December 8, 2009, p. 38
On wonders, if the police were convinced that Wilder was responsible, could the Fire Marshall’s opinion would have supported that scenario? The accelerant was consumed in the fire. There was a “poof” and then the flames receded. When the couch material was alit, the flames grew in intensity. The NFPA 921 supports the notion that intoxicated persons do not respond to fires in a “typical” fashion. Wilder is under arrest.
20. No Inquiry Related to the Composition of the Couch, Couch Pillows, or Sweater
The investigation was focused on whether there was a deliberately set fire–one would think that some inquiry ought to have been made about the most important thing in this case, namely the physical constitution of the sweater, or the physical constitution of the couch or couch pillows. None was undertaken.
Zrdalic testified that the sweater was made out of wool—she was not sure on this point, but that was her first answer. The Fire Marshall knew from his own training the burn properties of various types of fabric. He admitted that of commonly found fabrics, that wool is among the most difficult to sustain an open flame. His own personal and professional experience supported this conclusion, and his curriculum vitae noted he had “hands-on” experience in this area, and in October 2002 he had training in demonstration burns of fabrics. His conclusion related to wool fabric was:
Open flame applied to 100% wool material with the material hard to ignite and flame burning slowly till self-extinguishment after 10 seconds
A further unknown factor, which militates against acceptance of the Zrdalic/sweater theory of the start of the fire, is that nothing is known about the composition of the covering of the couch, whether it was covered in wool, vinyl or even leather—this was raised by the Trial Judge and admitted by both counsel.
21. The Smoldering Fire
The Fire Marshall in his Report rejected the potential for a smoldering fire because the debris did not reveal any smoker’s material present (ashtrays) and that it was not consistent with the evidence of the witnesses. The Fire Marshall in his viva voce evidence did agree, though, that from a strict forensic perspective he could not rule out the possibility of a smoldering fire. A core temperature of a couch fire of 2,000° F would no doubt obliterate any evidence of smoker’s materials.
The Fire Marshall agreed that if he simply came upon the scene without any preconceived information about what may or may not have happened that he could not eliminate the possibility of a smoldering-initiated fire. The main reason he moved away from this possibility was based on timelines.
As has already been noted, the timelines in this matter as it relates to the Zrdalic group are wanting in specificity. The Fire Marshall did testify that the best forensic evidence was that a smoldering-type fire could take place within a 20 minute time frame. This was based on studies referenced in Kirk’s Fire Manual. Elaborating on the point, the Fire Marshall testified that although the polyurethane padding that is commonly found in much furniture would not ignite if presented with a burning cigarette, the important thing is what type of material covers the polyurethane: once that material generates an open flame, the polyurethane will react and a fire would ensue quickly.
The Fire Marshall discussed the timeline issue at the conclusion of his evidence, in this exchange with the Trial Justice:
THE COURT: No, I am saying that on the evidence so far those are the things I have got to think about.
A: My understanding is, based on the evidence as I know it, that the smoldering cigarette part was in part removed because of the timeframe that was identified by these witnesses in the fact that they left the couch, returned to the couch…
THE COURT: Yes, 20 minutes later or so.
A: My understanding was it was ten minutes.
THE COURT: Well….
A: The minimum…
THE COURT: It is anywhere from ten to 20 minutes or longer. Counsel will correct me if I am wrong. It is not absolutely nailed shut as to what it was. There are conflicting pieces of evidence, but it could have been for argument sake a minimum of 20 minutes, which if the cigarette was there would of course rule it in.
A: Statistically, yes, sir.
Trial, December 8, 2009, p 57
The Fire Marshall admitted the text, the NFPA 921 was the industry-accepted “Bible” for fire investigation. The NFPA cautions in strong terms against making a credible determination regarding the cause of a fire where there is no physical evidence (as here) of the ignition source:
When the origin of a fire is clearly defined, it may be possible to make a credible determination regarding the cause of the fire, even when there is no physical evidence of the ignition source identified after the fire. (Section 18.2.1)
The NFPA 921 is the leading text in fire investigation. The Fire Marshall incorporates passages from it in his Report. The language employed in the NFPA 921 is of tremendous significance: the NFPA 921 counsels against ruling out accidental causes, and cautions that a finding there was the application of an open flame is a finding that “may” be justified in “limited circumstances”. The full passage is as follows:
The ‘elimination of all accidental causes’ to reach a conclusion that a fire was incendiary is a finding that can rarely be justified scientifically, using only physical data. However, the elimination of all causes other than the application of an open flame is a finding that may be justified in limited circumstances, where the area of origin is clearly defined and all other potential heat sources at the origin can be examined and credibly eliminated.” (Section 18.2.5)
The Fire Marshall was fairly clear that a smoldering fire could develop within a timeline of as little as 20 minutes. Alternatively, it could take as long as three hours. He recognized numerous variables in this scenario—the location of a cigarette (whether or not in a crevice), the cover material of the couch (not known); the cover material of pillow cushions (not known); the seat cushion material of the couch (the Fire Marshall believed it was polyurethane foam, although this opinion was somewhat outside of his realm of expertise and this conclusion was not referenced in his report); the material of the pillow cushions (not known if cellulosic). Further variables include the age and condition of the couch, and its location on breezy outdoor porch. The Fire Marshall testified at one point that this was a “modern style” couch, although, again, this was arguably outside the scope of his expertise.
The Fire Marshall admitted there was little in the way of referable science related to “porch couch fires”, as it was put to him:
Q: You can’t point us in the direction of any learned articles, you know, that would address the issue of accelerants, that specific narrow area of accelerants on upholstered furniture?
A: Well, very little research, to the best of my knowledge, has been done on accelerated fires in furnishings.
Trial, December 8, 2009, p 47-48
The Fire Marshall also accepted as part of his opinion these passages from Kirk’s Fire Investigation, a respected reference source.
Today’s furniture is markedly improved in its resistance to the most common type of accidental ignition—a dropped cigarette. The trade of is much worse—resistance (read: virtually none) to flaming sources. Once alight, such furnishings can be completely involved in 3-5 minutes and be reduced to a charred frame in 10 minutes, while producing very high temperatures.
The defence submits that the possibility of a smoldering fire cannot be eliminated. It is, of course, impossible for the defence to assert that it certainly did happen. The timeline suggested by the Fire Marshall is that this type of smoldering fire could take as long as three hours to turn to flame, or as little as 20 minutes. That is a fairly wide time-frame. It is known that there were other people aside from Wallace, Zrdalic, Broadhead and Williams in the house, including Lamont Rhue, two men that Rhue saw at or around the front porch and who got into an argument with Wallace. Shirlene Williams testified there was another man, not Rhue, who was also in Wallace’s apartment when they arrived. It is known that Zrdalic smoked a cigarette on the porch while she was waiting for the others to leave Wallace’s apartment. Williams may also have smoked a cigarette.
The nature of an accident is, obviously, something that is unplanned. It is something that the actor probably doesn’t even know he has caused, let alone admit. So the fact the defence can’t produce a witness to say he is responsible for negligently starting this fire should come as no surprise. The important consideration is that from a strict scientific perspective, is that an accidental cause cannot be ruled out in this case.
22. The Accelerant Based Fire
In the same way the Fire Marshall began his assessment of a smoldering fire as initially being “rejected” to become “statistically possible”, he also modified his opinion related to an accelerant based fire. In his Report, he states that “…the negative results of the Centre of Forensic Sciences analysis was not a factor in this case”. True, it was not a factor in establishing the presence of an accelerant, however, because no accelerant traces were found, does not lead to the conclusion that they never existed. Stuart Sagara’s evidence was clear in confirming that an accelerant could have been consumed in the fire. The Fire Marshall agreed with that proposition, and accepted and adopted the following passage from Kirk’s Fire Investigation, a respected text in the field of fire investigation:
The intensity of such [furniture] fires can obliterate traces of ignition sources and induce the speed of spread and kind of damage once thought possible only for accelerated fires, and make the recovery and identification of possible accelerant traces very difficult.
Again, from a strict forensic perspective, the Fire Marshall could not eliminate the possibility that an accelerant was used in this fire:
Q: Now, you are, I don’t think it’s not a secret, you’re familiar with the contents of the CFS report regarding accelerants, you’ve had a chance to read that, correct?
A: Yes, sir.
Q: All right. Separate and apart from that, and apart from chemical analysis of scene samples, is there anything in your own examination to suggest an accelerant of a chemical nature was used in this fire?
A: No, sir. I could not eliminate it totally, other than the fact that the fire was consistently spread across the wood planks in the area underneath the couch, whereas normally an accelerant of the type you are providing, would cause the fire to drop to floor level at a greater rate of speed, and potentially more involved, hence more consumption of floor planks.
Trial, December 8, 2009, p 11-12
It was known to the Fire Marshall that gasoline-type accelerants find their way into cracks and crevices of floorboards. No effort was made to collect the floorboards in this case, because at the time it wasn’t considered relevant—the police had a suspect in custody and there was an eyewitness to the starting of the fire.
The Fire Marshall also testified that although he made certain observations of the fire scene, he could not state whether or not anyone was looking for a 500ml plastic bottle:
THE COURT: All right. Mr. O’Leary, I have got some questions for you. Mr. O’Leary, my understanding is that you arrived at the scene about 6:00 am in the morning.
A: That’s correct.
THE COURT: And that you made certain observations?
A: Yes, sir.
THE COURT: And the Fire Department and the Police Department were still there?
A: Yes, sir.
THE COURT: And I take it that hoses were all over the place?
A: Yes sir.
THE COURT: Equipment was all over the place?
A: Sorry, I missed that.
THE COURT: Pardon?
A: Hoses were all over the place and what was next?
THE COURT: Equipment was all over the place?
A: Yes, sir.
THE COURT: And no one was specifically looking for a 500 ml plastic bottle I take it? That was not something people were looking for at the time?
A: I could not say that, sir.
THE COURT: Okay. In any event, none was found?
A: That is correct.
THE COURT: None was referred to?
A: That is correct.
Trial, December 8, 2009, p 55-56
With regard to the various potential causes of the fire, the Fire Marshall’s final comments were as follows:
THE COURT: Okay. Did you at any time ever rule out the flaming garment?
A: It was not possible to eliminate that.
THE COURT: Okay. So the best you can say is may or may not have been, is that true?
A: It was more possible, probable…
THE COURT: More probable
A: Than the gasoline.
THE COURT: Okay.
Trial, December 8, 2009, p 64
23. Fire-Related Human Behavior
The Fire Marshall agreed, in his capacity as an expert, that there existed a burgeoning social science related to the study of fire-related human behavior. Referencing again the NFPA 921, the Fire Marshall agreed with the following comment from that text:
10.3.1.2 Cognitive Comprehension Limitations
Cognitive comprehension limitations, which may affect an individual’s ability to recognize and react appropriately to the hazards presented by a fire or explosion incident, include age (as it relates to mental comprehension), level of rest, alcohol use, drug use (legal or illegal), developmental disabilities, mental illness, and inhalation of smoke and gases. These cognitive limitations are more likely to affect and individual’s ability to accurately assess the hazards presented by a fire or explosion.
Turning to the facts of this case, it is known that Zrdalic, Broadhead and Wallace had been consuming alcohol and illegal drugs. It is known that Wallace consumed crack cocaine and it is likely that Zrdalic also consumed crack cocaine. It is also known that Wilder consumed crack cocaine. It is against this backdrop that their behavior and reaction to the fire ought to be judged.
The defence submits that the charges against Mr. Wallace ought to be dismissed. The underlying evidence from the lay witnesses called to support the theory that Wallace deliberately or recklessly set this fire has been shown to be unreliable and not credible. The possibility that the fire was the product of an accident can not be ruled out. The evidence of Chris Wilder that he was responsible for the fire is capable of raising a reasonable doubt as to the guilt of Franklyn Wallace.
Respectfully submitted this 8th day of March, 2010, at Windsor, Ontario.
691 Ouellette Avenue
Counsel to Frank Wallace
To: Mr. Scott Pratt
Office of the Crown Attorney
200 Chatham Street East
And to: The Clerk of this Honourable Court
INHERENT DANGEROUSNESS IN RELYING ON A PART OF A STATEMENT
In R v Ferris (1994), CANLii 5267 (Alta.C.A.), the Alberta Court of Appeal considered whether the trial judge was correct in permitting a portion of a conversation to be admitted into evidence. The accused had been arrested for murder and requested to make a long distance call his father. The call could only be made from the homicide office within the detachment. The officer who took the accused there heard the accused say during the call “…I killed David…”. The officer stated that it was not his intent to hear any part of the accused’s conversation and that he did not hear what was said before and after those three words. The Crown did not call the father in the course of the voir dire, and the accused did not testify.
The court ruled that the trial judge erred in permitting the statement to be adduced into evidence:
To be relevant, the evidence must be probative of some fact in issue. Words do not become admissible merely because they are uttered out of the mouth of the accused. It is for the party tendering the evidence to prove the connection between he evidence tendered and the fact. In some cases the words may be relevant to the issue of credibility, but that is not the case here. There may be cases where the utterance of a single word (such as a code word) would go to prove the accused’s knowledge of an important fact. The onus rests on the party tendering the evidence to prove the connection between the evidence offered and the fact. In this case, the only possible relevance of these words is if they could be found to constitute an admission by the accused that he killed David. They are being tendered as proof of their contents. The issue here is not whether the officer is telling the truth, that the accused uttered these words, but whether any meaning can be put on the words. Are they an admission? Certainly if they are, they are relevant and highly probative. While the jury ultimately makes the decision, the trial judge must determine whether there is evidence on which they could so decide.
R v Ferris, at para. 15
The facts of this case are unique in that there exists no circumstances or context from which the true meaning of the words can be inferred. It is uncontradicted that the words were part of an utterance only, and that other words passed both before and after those words. It is uncontradicted that the words could have come at the beginning of a sentence, or at the end, such as ‘They think I killed David’, or ‘They think I killed David, but I didn’t’. His father could have asked him what the police think he did and he could have replied ‘I killed David’. Those utterances do not prove any fact in issue and are not an admission of guilt. Indeed, on the basis of the uncontradicted evidence, the possibility of statements with the words ‘….I killed David…” contain therein are numerous. There is no way of determining the meaning of thought to be attributed to the words. A trial judge could not ascertain, nor could the jury, the meaning of the words.
R v Ferris, at para. 17
Where one party seeks to tender an admission of the other party into evidence, he must introduce all of the statement, and not just the portion which favours the party tendering. As was stated in Capital Trust Company v. Fowler (1921), 64 DLR 289 (Ont.C.A.) at 292:
The law seems quite settled that, if an admission is used by one party, it must be used in its entirety, that is, everything must be read that is necessary to the understanding and appreciation of the meaning and extent of the admission.
As mentioned above, the testimony of Sgt. Schmidt makes it clear that the words ‘I killed David’, on there own, are not enough to allow for the proper understanding and appreciation of the meaning of the statement. It is essential that the jury receive the complete utterance so that the meaning can be ascertained. Further, this is not a case where the recipient of the call testified as to the meaning of the statement. Normally in admission cases, the accused is afforded the safeguard or cross-examining the recipient of the information as to the true meaning of the words without being forced to testify.
R v Ferris, para’s 23 – 24
The Ferris decision was affirmed by the Supreme Court of Canada and was recently reconsidered by the Ontario Court of Appeal in R v Hunter (2001), CANLii 5637 (OCA). There, the Crown sought to call a Mr. Dicecco who overheard the accused speaking to his lawyer in an open area at the Toronto Old City Hall Courthouse. Mr. Dicecco heard part of conversation, namely that of the accused stating: “I had a gun, but I didn’t point it”. On a voir dire, both the accused and his counsel, Mr. Rusonik, denied ever saying that. The appellant was convicted.
On appeal, the decision is Ferris was revisited and endorsed. Justice Goudge wrote:
In my view, Sopinka J’s reasoning [in Ferris] is anchored in the important role that context can play in giving meaning to spoken words. Where an overheard utterance is known to have a verbal context, but that context is itself unknown, it may be impossible to know the meaning of the overheard words or to otherwise conclude that those words represent a complete thought regardless of context. Even if the overheard words can be said to have any relevance, where their meaning is speculative and their probative value therefore tenuous yet their prejudicial effect substantial, the overheard words should be excluded.
R v Hunter, par. 19
Moreover, the court ruled that in this case the admission of the overheard statement resulted in a substantial wrong or a miscarriage of justice:
The Crown argued that even if the overheard utterance was admitted in error, it resulted in no substantial wrong or miscarriage of justice. I do not agree. The Crown characterized this evidence as very critical. Moreover, in the appellant’s first trial where the one significant difference appears to be that this evidence was not called by the Crown, the result was a deadlocked jury and a mistrial. I do not think it can be said that without this evidence the verdict would necessarily have been the same.
R v Hunter, par. 23