R. v. Aster

2023 BCSC 1174 R. v. Aster

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Aster, 2023 BCSC 1174 Date: 20230519 Docket: 75944-2 Registry: Prince George Rex v. Justin Kyle Aster Before: The Honourable Madam Justice Fleming Oral Reasons for Judgment Counsel for the Crown: J.D. Hempstead D. Reznikov Counsel for the Accused: J.C. LeBlond Place and Dates of Trial: Prince George, B.C. January 23-27, 30-31, 2022 February 1-3, 6-10 and 15, 2022 May 15-16, 2023 Place and Date of Judgment: Prince George, B.C. May 19, 2023 [1] These reasons, delivered orally, have been edited for publication. Introduction [2] The accused, Justin Aster, is charged on a five‑count indictment with three counts of criminal negligence causing death, committing arson with disregard for human life and committing arson damage to property. All of the alleged offences relate to a serious fire at the Econo Lodge City Centre Inn ("Econo Lodge") in Prince George on July 8, 2020. Tragically, the fire resulted in the deaths of Amos Miller, Curtis Fraser, and Maryann Sanders. It also caused serious injuries to others and severe damage to the Econo Lodge. [3] The trial proceeded over 12 days. The Crown called a number of police witnesses, a firefighter, two lay witnesses, and three expert witnesses, two of them fire investigators with the RCMP. The Crown also introduced a number of agreed statement of facts and admissions; Mr. Aster's

statements on July 11, 2020 and September 17, 2021; video footage recorded by CCTV cameras at the Econo Lodge and various nearby businesses; photographs; and multiple documents, some of which are based on a review of the video footage and still images from the footage. [4] Other than introducing a short clip of video footage from the Econo Lodge, the defence adduced no evidence. [5] Mr. Aster acknowledges that he was present at the Econo Lodge, as depicted in video footage from before the fire on July 8, 2020, but he denies any role in starting the fire, either deliberately or accidentally. Consequently, the central issues in this case are the cause of the fire and, if incendiary, meaning set by a person, whether it was set by Mr. Aster. Overview [6] The Econo Lodge is a motel located at 910 Victoria Street in downtown Prince George. It is an older two‑storey U‑shaped building that partially surrounds an outdoor courtyard on the east side of the building. Motel rooms are located on the first and second storeys of the east side. The ground floor rooms open onto the courtyard. A staircase at the east end of the courtyard leads to a landing that connects to flights of stairs to the north and south sides of the second storey. A balcony surrounding the upper storey is covered by the roof overhang. The sides of the stairs and the landing are enclosed. The staircase, the landing and

the flights of stairs to the second story cover the ground floor stairwell or an area beneath. [7] A door near the south side of the bottom of the east staircase leads to an enclosed set of stairs or a breezeway, and then to a parking lot at the back or south side of the Econo Lodge. [8] West of the courtyard is the motel office. Adjacent to the office is another parking lot. Open at the west end, there is nothing to prevent people from walking through and around the courtyard and through the breezeway. [9] The Serious Crime Unit of the Prince George RCMP investigated the fire. Corporal Katarzyna Walaszcyk gave evidence about her review of CCTV video footage obtained during the investigation that included video footage from the Econo Lodge taken by Camera 24 of the east end of the courtyard, and Camera 23 of the back parking lot facing south, from July 6 to 8, 2020. The Econo Lodge video footage in evidence, however, is limited to footage taken by both cameras for a much shorter period, from about 7:45 a.m. to 8:47 a.m. on July 8, 2020, apart from some still images in a document Cpl. Walaszcyk prepared. [10] In testifying about the Econo Lodge footage from July 6 to 8, 2020, Cpl. Walaszcyk said she observed members of the fire department arriving at 10:41 a.m. on July 6, 2020 and completing an inspection of the Econo Lodge, although not the second floor, accompanied by staff

members. She also testified that footage from July 7, 2020 showed two people she referred to as maintenance or staff members removing construction debris from the second storey of the Econo Lodge and dropping it into the courtyard below, starting at 10:18 a.m. They continued to drop the material throughout the day. By 4:00 p.m., they had moved all of it behind the east end staircase, and a garbage can. Corporal Walaszcyk described the debris she observed in the footage as rolled‑up foam, carpeting, upholstery, and other debris. [11] David Klein, a guest at the Econo Lodge on July 7 and 8, 2020, who was seriously injured in the fire, also gave evidence about noticing a large pile of debris directly under the stairwell. Mr. Klein stayed in Room 118, located adjacent to the stairwell. Indicating he worked as a contractor doing home renovations before the fire, he identified the debris as carpet underlay and wood tacking used to fasten carpeting. He estimated the size of the pile as 15 feet long,10 feet wide and four feet high. [12] One of the agreed statement of facts and admissions titled Civilians ("Civilians") includes the similar less‑detailed observations of Mr. Klein and Brian George. Mr. George stayed at the Econo Lodge with his wife, Amy, in Room 116. He said he noticed a pile of foam, rubber, carpet, and wood by the steps near their room. It appeared as though the motel

was doing a renovation. [13] The first signs of smoke are visible in the Camera 24 footage of the east side of the courtyard above the landing between 8:44 a.m. and 8:45 a.m. on July 8, 2020. [14] The testimony of Lana Pierre and Civilians indicates she and her partner, Shawn Tomah, were the first to detect a fire. Mr. Tomah, a long‑time resident at the Econo Lodge, was living in Room 124. He had invited Ms. Pierre for breakfast that morning. She testified that she arrived around 7:00 a.m. and Mr. Tomah finished cooking around 8:00 a.m., although Civilians states she arrived about 20 minutes before the fire and Mr. Tomah was cooking breakfast from between 8:00 and 9:00 a.m. [15] In any event, Ms. Pierre testified the door of Mr. Tomah's room was cracked open a little and the two of them watching the news. She heard a kind of crackling noise about an hour after she arrived and was pretty certain she first heard the sound around 8:15 a.m. when she first went outside but she did not see anything. She went outside again when the noise got louder and saw smoke coming from the last or back steps. Ms. Pierre returned to the room to tell Mr. Tomah there was a fire. When she stepped outside again, the flames were pretty high. [16] Ms. Pierre also saw a maintenance man coming from Tim Hortons. She testified to telling him about the fire but he did not seem to care. After going to the

Econo Lodge's office, Mr. Tomah pulled the fire alarm twice, but there was no sound. Ms. Pierre began shouting and yelling "fire" as loud as she could. The two of them walked up and down the courtyard, banging on room windows to alert sleeping guests. Civilians indicates some of them heard the screams of fire and/or the sound of cracking. [17] Tragically, after the fire, the body of Amos Miller was found in Room 242 and the bodies of Curtis Fraser and Maryann Sanders were found in Room 240. [18] Forensic pathologist Dr. Bilimoria performed autopsies on Ms. Sanders and Mr. Miller. In his autopsy reports, he concluded that both of them died of smoke inhalation. Each had fatal levels of carbon monoxide in their blood. The autopsy of Mr. Fraser was completed by forensic pathologist Dr. White. Based on finding a fatal level of carbon monoxide in his blood, he too concluded Mr. Fraser had died of smoke inhalation. [19] In addition to the video footage from the Econo Lodge, the Serious Crimes Unit also obtained CCTV footage taken on the morning of July 8, 2020 by nearby cameras at an accounting firm, the Marriott Hotel, a construction site, a Tim Hortons, the CBC, the Coast Hotel, and a Money Mart. [20] All of the video footage was analyzed by Cpl. Dale Baker and video analyst Brenda Mackenzie. Corporal Baker prepared a spreadsheet that includes an extremely detailed timeline based on

the video footage that captured a person police believed was Mr. Aster and his movements around the downtown area from 6:58 a.m. until 8:45 a.m. on July 8, 2020. The spreadsheet also accounts for differences in the time clocks and between the time clocks used by the various CCTV cameras and real time. Based on the timeline, Ms. Mackenzie prepared a compilation video that sequences segments of footage chronologically. [21] Mr. Aster no longer disputes that he is the person depicted in the video footage, nor does he dispute the accuracy of the timeline. [22] There is no dispute and the evidence indicates that at the time of the fire and his arrests on July 11, 2020 and September 20, 2021, Mr. Aster was struggling with an addiction to heroin that involved daily use and was homeless. [23] Much of the compilation video, to the extent the images are clear or close enough, show Mr. Aster wandering throughout the downtown area, sometimes backtracking before the fire on July 8, 2020. Initially he was wearing bright red pants, a hoodie with a cloaked skeleton on the front and back, a dark ballcap with a red rim, and tan or yellow hiking boots with a light‑coloured sole. He was also carrying a blue or black backpack. Often, he can be seen looking down or bent over, searching for items on the ground. He sits down occasionally. At a certain point or points, he interacts and walks with other

people. [24] After entering a Tim Hortons at about 7:35 a.m. and searching in his backpack, he puts on some gloves. He gestures and speaks with a staff member. Mr. Aster leaves the Tim Hortons with his arms raised in the air. He then re‑enters the Tim Hortons. After speaking with another staff person at the counter, he leaves. [25] At 7:50 a.m., Mr. Aster walks into the north side parking lot of the Econo Lodge, heading east through the courtyard on the south side. He walks around the bottom of the staircase at the east end of the courtyard. He is out of sight behind the staircase for about 12 seconds. At 7:51 a.m., he walks into the breezeway leading to the south parking lot. Hunched over in the stairwell on the other side of the breezeway, he then walks into the south parking lot of the Econo Lodge smoking. He remains in the parking lot for some time. For several minutes, he appears to be seated or crouched between two parked cars. While there, he changes his clothes. He removes his red pants and puts on long, baggy dark‑coloured shorts and leggings or long socks that cover his lower legs. After removing his upper clothing he seems to put the same items back on, along with the gloves. Mr. Aster can also be seen cutting his hair with clippers. [26] At about 8:10 a.m., he walks west in the alley next to the parking lot, before returning to dumpsters located on the east side of

the parking lot. For several minutes, he stands near the dumpsters. He again appears to be looking for items on the ground. From 8:14 a.m. to 8:17 a.m., another person dressed in blue is also standing near the dumpsters looking on the ground, much like Mr. Aster. [27] At 8:20 a.m., Mr. Aster sits down in a sunken area. At 8:33 a.m., he walks down the alley looking at the ground and inside parked vehicles. Out of view for some moments, he is back at the sunken area at 8:37 a.m. and then milling around the vehicles in the south parking lot, again looking at the ground. [28] Returning to the west side of the parking lot, he tosses his backpack near a dumpster at about 8:41 a.m. and then continues looking for things on the ground. Leaving the backpack there, Mr. Aster enters the breezeway some seconds after 8:43 a.m. and appears at the east end of the Econo Lodge courtyard near the door to the breezeway at 8:43:33. Out of view behind the staircase three seconds later, he reappears about 12 or 13 seconds after that on the south side of the stairway behind a grey box, which other evidence establishes contains a plastic garbage can. He seems to crouch or bend down behind the box and is out of view again at 8:43:51. He reappears in that same spot at 8:44:05. [29] After that, he re‑enters the breezeway, reappears in the back parking lot and picks up his backpack, which he puts on. From

there, he walks toward the Marriott Hotel, about half a block away, and into a vacant area near a construction fence. Again, he is meandering, looking for items on the ground. [30] Mr. Aster made his first statement to police during an interview with Cpl. Richard Anderson on September 11, 2020. When asked about the fire, Mr. Aster tells the officer he saw the smoke from the top of Connaught Hill. He also says he was really high at the time. Asked what he was doing the morning before the fire, Mr. Aster responds with words to the effect of, "I am an addict, right? I'm out looking for a high. That's what I was doing, getting high." He also indicates this is what he does every day. [31] Corporal Anderson asks him where he got high and Mr. Aster says he was all over town. Pressed for specifics, Mr. Aster states he can only remember a little and he remembers buying dope downtown and seeing smoke in the air. Corporal Anderson continues to ask Mr. Aster what his day looked like before the fire. Mr. Aster states he was just getting high, just like he does every day. At that point, Cpl. Anderson asks Mr. Aster if he lit the fire. Mr. Aster responds no. [32] Asked more questions about what he remembers about being in the area, Mr. Aster says he was passing through, looking for "dope" and looking for a guy that sells "dope". He adds he believes he "scored" close to Connaught Hill. He

repeats that he was walking through town looking for the "dope man". Asked what his route looked like and whether he could draw it, Mr. Aster says he cannot, and he was pretty much walking all over town, and the route he takes might not be the same every day. [33] Corporal Anderson asks him about passing through the Econo Lodge. Mr. Aster states that he passed or walked through and left. He also says he was walking towards the Econo, "or no, the hill," and was getting high when he heard sirens. [34] Asked about his route through the Econo Lodge, Mr. Aster states, "[u]nderneath and up the back, where you go in between the building," also referring to a courtyard and a pass‑through that everybody uses. Further, he says, he walked through and he never stopped. He was just getting dope. Asked specifically if he stopped anywhere just before he passed through the Econo Lodge, Mr. Aster says, "I don't think so, no." [35] Confronted with a still image of a person outside the Tim Hortons that he later acknowledges was him, Mr. Aster initially says he does not know anything about Tim Hortons. When Cpl. Anderson tells him, "I know that it was you at the Tim Hortons," Mr. Aster responds, "I must have passed through, I guess," but he does not remember. He also says, "I don't see where I'm in on the fire though. I walked through like I told you, but I never did nothing. Like why would I hurt

people? I have no reason to. Like I've been in treatment many times and I would not hurt a person like that. I have morals. I respect people." [36] Corporal Anderson then tells Mr. Aster he wants to know more about what happened at the Tim Hortons, referring to the still image that shows him with his arms up. Mr. Aster denies being high when he walked out of Tim Hortons. Agreeing it is him in the image, he states that this has nothing to do with the fire. He refers to a lady, a staff person, who was angry and outspoken, saying something to him, him getting mad and walking out. After that, he says, he walked through the underpass and went and got high. Asked what her problem was and what their conversation was about, Mr. Aster says he does not know, she is just a bad worker, she is not supposed to talk to people like that, and she was getting his order wrong he thinks, but he cannot remember. [37] Pressed about where he went after he walked through the underpass, Mr. Aster says he does not know the streets, but refers to the welfare office and the buildings in that area. He agrees he was where the new construction is and the Marriott. [38] Mr. Aster provided a second statement to Cpl. Scott Gardiner during a smoke break after an interview on September 17, 2021. During the interview, the lead investigator, Cpl. Scott Gillam, presented a power point comprised of still images from

video footage and captions about other evidence, including DNA evidence, intended to demonstrate the strength of the evidence against Mr. Aster and the victim's family's need for answers. [39] During the presentation, the interviewer, Cpl. Aaron Penner, who was and had emphasized he was new to the investigation, conveyed how convincing the evidence was. [40] During the smoke break, Cpl. Gardiner comments, "There is some heavy stuff going on," with reference to the presentation, and asks Mr. Aster how he feels about what he was shown. He responds, "That's their story, they stick with it, go for it." [41] Asked if he has an alternate story, Mr. Aster makes a number of exculpatory statements, including, "It's probably their electric." Asked what makes him say that, Mr. Aster responds, "Because I didn't start the fire. I was just walking through, looking for butts. That's all I was doing." [42] After agreeing the images in the presentation are of him, he says, "But I never started the fire." [43] Corporal Gardiner states, "But like they showed you walk out, 40 seconds later the fire starts out. It's a coincidence, you're saying?" Mr. Aster responds, "That's messed up, man. It's like a setup or something." [44] Corporal Gardiner goes on to ask him if he ever stayed at the Econo Lodge and Mr. Aster says, "A few times and it's a good place." Asked how he was treated, Mr. Aster

comments, "They just don't like natives." [45] Corporal Gardiner ask, "How come?" Mr. Aster says, "They kicked everyone out." [46] Corporal Gardiner asks, "So did they tell you or did they kick you out at some point or what?" Mr. Aster says, "Just my friends were living there." Asked who the friends were, his answer is indecipherable. But he seems to agree with Cpl. Gardiner's query about whether that this was a long time ago. Asked if he ever had problems when he stayed there, Mr. Aster says, "I never stayed there", just his friends did. Mr. Aster also says he does not know if his friends were there when the fire happened. Corporal Gardiner suggests these friends were not good friends and perhaps more like acquaintances, somewhere to crash. [47] Corporal Gardiner also tells Mr. Aster, "If you are saying you didn't do it, I mean, we need to understand that you didn't, right?" Mr. Aster responds, "I didn't do it. My family has died in fires." He goes on to describe seeing his father save people from a fire. He agrees with Cpl. Gardiner that his father was a bit of a hero. Some moments later, Cpl. Gardiner asked Mr. Aster if there is any chance he was looking for butts and an accident happened. Mr. Aster denies this, stating, "'Cause I was looking for something to smoke." When he left, there was no smoke and no light. [48] Mr. Aster acknowledges seeing what Cpl. Gardiner

describes as all the packing materials shoved under there, but he continues to deny lighting anything adding, "Why would I? That place was being renovated too. Could've been anything there." Asked if his friends were kicked out during the renovation, he states, "'Cause even their fire alarms didn't go off," indicating he heard that from people. Asked if there is any reason he can think of for the fire, Mr. Aster offers, "electrical, there is a lot of electrical around that area." [49] Corporal Walaszcyk testified to watching the Camera 24 video footage up to "the limit of" July 7, 2020, and observing no one else milling around the courtyard until around 6:30 a.m. on July 8, 2020. [50] As I have indicated, the Econo Lodge footage that is in evidence starts at about 7:45 a.m., apart from a short clip of Camera 24 footage from about 6:56 a.m. introduced by the defence. [51] The short clip shows a woman appearing on the landing from the staircase below. She walks up the stairs to the south side of the second storey and enters a room at the far east end. She comes out of the room some seconds later and walks west along the upper balcony. At the same time, a person wearing a hoodie with the hood up emerges into view on the northwest side of the courtyard. He walks away from the camera toward the east end staircase and behind it, out of view for four or five seconds before walking

back towards the camera along the south side of the courtyard. It is not clear from the footage if his hands are inside his sleeves or not. [52] The balance of the Econo Lodge footage, in terms of other persons, shows a woman in a dark hoodie emerging from a different second storey room at about 7:52:34 and walking down the stairs, and behind the stairwell. She is out of view for about 40 seconds, from 7:52:49 until 7:53:29. At that point she can be seen on the north side of the stairwell. She disappears north. At 7:54:29, she can be seen walking up the stairs. She bends down after apparently dropping something and then seems to drop something again, before returning to the same motel room on the second storey. [53] In between, a person in a safety vest walks behind the stairwell at 7:17 a.m., where he remains for six or seven seconds. He walks past the area again at 7:55:11. A shadowy figure can be seen briefly around the entrance to the breezeway at 8:01:28, close to the debris area. Dark in this area, it is not clear but it seems the person enters the door to what the diagram evidence shows as Room 119. Before this, at or about 7:58:15, a man emerges from the other side of the breezeway and enters the south parking lot. Mr. Aster is between the parked cars at this stage. The man proceeds to smoke and drink something. He appears to throw something down, perhaps a cigarette,

before re‑entering the breezeway at 8:01:17. Accepting this is the same person as the shadowy figure, 11 seconds is longer than others spent in the breezeway. Fire Investigator's Evidence [54] The Crown's case includes the evidence of two fire investigators, Cst. Glen Edwards and Cpl. Alan Smith, members of the Regional General Investigation Section of the RCMP's North District. Both gave fact and expert opinion evidence during their testimony. The Crown also relies on a fire investigation report prepared by Cst. Edwards. Corporal Smith completed a technical and peer review of the report in his role as Cst. Edwards' supervisor, and agreed with his findings. [55] Following a brief voir dire and without objection, each was qualified to provide expert opinion evidence regarding the origin, cause, and development of fire. Constable Edwards and Cpl. Smith are the only RCMP fire investigators that conduct origin and cause investigations into fatal or potential criminal structure fires in Northern BC. Constable Edwards has been fulfilling this role since 2015. He began arson investigation training in 2013. Corporal Smith has significantly more experience. He has been investigating fires since 2004. Much of their training in fire investigation, I note, is comprised of short online courses through the International Association of Arson Investigators. Corporal Smith's training also

includes RCMP fire investigation training. [56] There were no objections to the admissibility of any of the opinions expressed in Cst. Edwards' report or by either expert during free-ranging direct examination. [57] In approaching their opinion evidence, however, I have considered the Supreme Court of Canada's repeated caution that expert evidence must not be allowed to usurp the role of the trier of fact. I have also considered R. v. Sekhon, 2014 SCC 15, which urges trial judges to be especially cautious with police expert witnesses, recognizing their evidence could amount to nothing more than the Crown's theory of the case cloaked with an aura of expertise. [58] In this vein, I note that in addressing the purpose of his report, Cst. Edwards writes that he made no attempt to discuss all potential hypotheses, as they were considered, and either adopted for testing or rejected. Instead, the intention of the report is to communicate to the investigating agency the data collected and the conclusion of the investigator, in order to assist the agency in advancing the investigation if a criminal act is determined to be possible or probable. [59] Clearly, as fire investigators employed by the RCMP, Cst. Edwards and Cpl. Smith are not independent expert witnesses. At the same time, both of them attested to their objectivity. Consistent with his evidence on this point, Cpl. Smith was

reasonable and fair throughout his testimony. He readily acknowledged the limits of his conclusions and other possible explanations and circumstances. [60] I found Cst. Edwards less straightforward, and was left somewhat concerned about his apparent lack of objectivity at times. Along with displaying a focus on confirming his findings and conclusions, he was less willing or reluctant to acknowledge circumstances or nuances inconsistent with his conclusions. [61] Accordingly, and based also on the superior experience of Cpl. Smith, where their evidence differs, I prefer the evidence of Cpl. Smith. [62] Constable Edwards' report outlines his investigative approach as incorporating the scientific method with reference to the NFPA 921, a 2017 guide for fire and explosion investigations written by the technical committee of the National Fire Protection Association ("NFPA"). The report also identifies the steps involved in applying the scientific method to fire investigations. Those steps include developing a hypothesis after collecting and analyzing all the data. The investigator is also required to test the hypothesis against all known facts, as well as the body of relevant scientific knowledge. [63] Substantively, the report discusses the environmental or weather conditions on the day before and the day of the fire, the layout of the motel and various building systems, including

gas, electrical, security, and fire protection. [64] Regarding the fire protection system, Cst. Edwards notes that when he examined the alarm panel, it was in the silenced position and the silence trouble light was not on. Also noting a current inspection tag, he identifies the reason for the system being silenced as an important question for the criminal investigation. There is no further evidence on this point. [65] The discussion of weather conditions in the report includes a chart of the temperatures and the relative humidity, along with other factors from midnight to 9:00 a.m. on July 8, 2020. The relative humidity ranged from 55% at midnight to 76% at 5:00 a.m., and then 55% at 8:00 a.m. [66] Constable Edwards writes that in the days before the fire, higher relative humidity, cool overnight temperatures, and good overnight recovery resulted in unfavourable burning conditions for fuels exposed to the environment. These conditions reduced the potential for fires to develop from low energy ignition sources such as sparks or discarded cigarette butts. [67] Both Cst. Edwards and Cpl. Smith were cross-examined about the issue of relative humidity. Constable Edwards specified the data in his report was obtained from a weather station at Prince George airport located some distance away and suggested the conditions there were the warmest and driest in the area. He was reluctant to

acknowledge the relative humidity of the materials under the stairs, given they were mostly enclosed, would have been less than in an exposed area, other than to say it would have been different. [68] In contrast, Cpl. Smith agreed the humidity level under the stairs would have been somewhat less, given it was not exposed to the moisture coming down from the air such as dew. In addition, he indicated that although concrete tends to retain moisture, it also evaporates faster than from grass or dirt. Corporal Smith also agreed that if the materials had been indoors until the day before, they would have been drier and there would not have been time to absorb moisture from the air. [69] The report includes a fairly lengthy chronology of witness and electronic accounts of the fire based on CCTV footage, witness statements, some of which are not reflected in the agreed statements of facts, and dispatch records. [70] Constable Edwards' testimony left the impression that his review of CCTV footage and the witness statements played a role in confirming, if not forming, some of his conclusions. [71] In addition to detailing the fire patterns found throughout the building, including the roof, the courtyard, and below the east stairs, the report discusses the large debris field found in the covered area below the stairs and the covered stairwell. [72] According to the report, the area

under the stairs was selected for excavation because the fire appeared to start there. Close examination of the east staircase showed the fire patterns originated from under the staircase near a garbage can on the south side of the stairs. Excavation of the garbage can eliminated it as the point of origin of the fire. [73] I accept this conclusion. Photographs and the fire investigators' testimony establish the garbage can was plastic but encased in a square grey plywood surround. It is the grey object I referenced earlier in discussing the Econo Lodge video footage. In photographs, the grey surround is visible on the right or south side of the enclosed area at the foot of the east stairs. The investigators found it lying on its side. The garbage can inside was significantly melted, but the fire pattern on the surround showed it started from the outside. Specifically, the burning and charring of the outside of the plywood around the container was far more evident and pronounced than anything inside. [74] An electrical fire was also eliminated. Again, I accept this finding. [75] Constable Edwards writes there was "no energized electrical circuits beneath the bottom section of the stairs". He gave evidence about examining the electrical system, including an electrical outlet above the stairs. Constable Edwards found the fire impinged on a number of circuits. He concluded that

damage to the wires depicted in a photograph resulted from the heat of the fire as opposed to an electrical fault. The base of the light fixture from above the stairs was found in the garbage can. An electrical ballast from the light fixture was found on the lower flight of the stairs. The ballast was not damaged internally, indicating it did not cause the fire. Similarly, other components Cst. Edwards described as hanging down did not show evidence of failure, such as an electrical arc. [76] Corporal Smith, who was in charge of excavating the area under the east stairs, testified to finding remnants of fine ignitable materials, cellulose, light paper such as newsprint, light cardboard, carpet remnants, and rebonded polyurethane foam remnants. He also found a paint can and the remains of a chair. In cross-examination, he agreed there was a light cellulose material draped over the chair that was likely a large piece of fabric which could have been a curtain or a bedsheet. Further, there were remnants of wood latticework that had enclosed a smaller area under the stairs where a barbecue and decorative rocks were stored. Corporal Smith agreed the latticework was a fairly volatile source of fuel. [77] The report states that the pile of materials under the stairs appeared to have burned from the south side near the garbage can, but no obvious igniting objects were present. The

report indicates that the debris pile, where it was deepest, included several inches of synthetic polymer debris which in turn included melted thermoplastics and charred thermostats, nylon carpet, along with a mixture of other materials, such as charred wood and melted aluminum soffits. [78] Corporal Smith described the debris pile as a large molten mass or "blob" that was up to 18 inches thick. Similarly, Cst. Edwards indicated it was five or six feet across and about two feet deep. Describing the polyurethane foam as ignitable and the fumes it produces as quite toxic, Cpl. Smith testified foam starts to melt and off‑gas at 400 degrees Celsius. It is the vapours that ignite. Because the foam shrinks as it melts, he could not tell how much was there before the fire. [79] Both investigators testified no ignitable liquids were found during the excavation. Constable Edwards also gave evidence the components of the decomposed underlay were difficult to distinguish from ignitable liquids. However, Cpl. Smith was present when a hydrocarbon detector was used and did not detect ignitable liquid molecules. In his experience, the detector will not alert in response to melted foam. He also testified the last component of the excavation process, a water wash, showed no signs of ignitable liquids. [80] In the report and during his testimony, Cst. Edwards concludes an unknown form of heat

was applied to an unknown material under the (east) stairs that ignited the pile of construction materials. The report also identifies the point of origin of the fire as unknown, although the area of origin was the area beneath the east stairwell, under the lowest flight of the east stairs. Corporal Smith also gave this evidence. [81] Regarding the time of ignition, the report states the scene examination did not suggest a start time other than the fire appeared to have propagated readily into the pile of renovation material. In his direct evidence, Cst. Edwards identified the first whitish, light, wispy smoke visible in the Camera 24 footage as what he would expect from the ignition of cellulosic or woody material with some amount of water content. In cross-examination, however, he offered that interpreting fires based on their plumes is something fire investigators have to be cautious about. [82] Regarding the cause of the fire, Cst. Edwards writes: "It is probable and there is evidence to show that this was an incendiary fire." [83] Both he and Cpl. Smith testified to arriving at this conclusion before completing their investigation and watching the Camera 24 footage. Corporal Smith stated that seeing someone in the location of the fire just before it started did not change his hypothesis but was consistent with it. Constable Edwards said he felt validated after watching the

footage, as he was sure the fire had not started in the garbage can which was the initial view of the fire crews on scene. [84] At the time of the investigation, the NFPA classified fires as natural, accidental, incendiary, or undetermined. An accidental fire involves an unplanned event or a chance occurrence arising from unknown causes, as well as an unexpected happening due to carelessness, etc. An incendiary fire is one that is deliberately set with the intent to cause fire in an area where fire should not occur. Whenever the cause of a fire cannot be determined to an acceptable level of certainty, the proper classification is undetermined. [85] In support of his conclusion that the fire was incendiary, Cst. Edwards identified several indicators of incendiary fire set out in the NFPA 921 as relevant: lack of ignition sources, unusual fire growth, remote location with view blocked, and unusual fuel configuration. Explaining the last two indictors, he wrote: The construction debris near the stairs was piled in manner that was conducive to fire, though the intent of this configuration remains uncertain. The area under the stairs was concealed from view by most units. [86] On this last point, I would highlight that apart from the general observations of some hotel guests, those of Cpl. Walaszcyk based on her review of the CCTV footage, and those of the fire investigators with

respect to the remnants, there is no evidence that would allow me to identify the nature of all the materials under the east stairs before the fire, including those placed there late in the afternoon on July 7, 2020 and any that were already there. I am also left unable to determine the volume of those materials, how much space they occupied, or how they were piled generally and in relation to each other. Questions arise, for example, how were lighter materials configured in relation to the nylon carpet and foam underlay, any other "construction materials" and the latticework? [87] To the extent Cst. Edwards' conclusion about an incendiary fire contemplates the person who set the fire arranging the materials immediately prior to igniting something flammable, he provided no evidence about how long this would take and what sort of configuration he had in mind. [88] As it relates to the remoteness of the location as an indicator of an incendiary fire, various diagrams of the layout of the motel and images of the courtyard area satisfy me the area under the stairs was visible from several of the first‑floor rooms, including Rooms 115, 116, 117, 118, 119, 120, 121, and 122. [89] Asked how certain he was the fire was incendiary, Cst. Edwards stated there was no competing hypothesis that could push this one off their view. He also testified passing 51 percent probability, "it's not

saying we're only half sure, it's saying we have no competing hypothesis." At the same time he suggested that certainty is rare in their field, a suggestion that Cpl. Smith did not endorse. [90] With respect to the requirement for hypothesis testing, Cst. Edwards' report says only that witness accounts and the CCTV reporting supported the findings of the scene examination. [91] When asked about testing their hypothesis as they conducted their investigation, Cpl. Smith described the investigation as "borderline" and, "it came down basically to the undetermined aspect. When you're looking at a fire investigation," he added, "the key points you want to get to at the very end if everything is successful is the ignition source, the material first ignited, and the point of origin." Here none of those were identified. [92] Asked for his view on the ignition source, Cpl. Smith stated typically with the environmental conditions and the little bit of fuel load he found, paper, light cardboard, and cloth remnants are the items that would have most readably or easily ignited. Typically, he said, any of these items would have to reach a temperature of over 250 degrees Celsius to ignite. He referred to the resulting open flame as the most probable and plausible cause to ignite the polyurethane foam. [93] In addition to challenging various aspects of the report and their direct evidence,

alternate theories were canvassed in cross-examination. One of those theories involved the presence of an oily rag that may have self‑combusted causing a smoldering fire. Asked if the remnants of the cloth material found could have been a rag, Cst. Edwards testified rags tend to have a thicker weave. Asked if an oily rag could have been a component of the debris pile, he commented none of the witnesses mentioned observing rags, and he was not prepared to speculate. Asked if an oil or gas‑soaked rag may have served as an accelerant to a potential fire from something like a discarded cigarette, he indicated this was unlikely. In his experience, Cst. Edwards stated, fires that start like that have a "fuel package" that is found during the investigation. Regarding smouldering fires generally, he indicated they typically start at a slower pace, but they can develop rapidly. [94] Both he and Cpl. Smith testified that typically remnants would be found from oily linens that have self‑combusted because they were piled in such a way as to create density. The fire starts internally and stays on top as it slowly burns down through the layers. Both said they would have expected to find evidence of a clump of linen or something similar. [95] When Cpl. Smith was asked about self‑heating or oil‑contaminated rags transitioning to a smouldering fire, he agreed this could occur in a timeframe of

one to four hours, although most of the research he is familiar with indicated a three‑ to five‑hour time period. He also described linen combustion as a phenomenon that happens regularly. Oils used in construction or furniture finishing along with some other oils are extremely volatile. They can heat up rags to self‑combust. He further explained, when placed in a pile instead of being allowed to air dry properly, oily rags self‑combust if they reach an internal temperature of just over 100 degree Celsius, which takes, he said, a minimum of three hours. A bunch of oily rags thrown in the corner of the garage on cool, damp concrete would take longer. Referring to what he called crossover factors, that is when the temperature is over 20 degrees Celsius and the relative humidity of the fabric is below 20 degrees, Cpl. Smith indicated the chances of combustibility go through the roof or become higher. [96] Corporal Smith also agreed that given the presence of a paint can, along with a possible accumulation of fabric, he considered the possibility of an oily rag being a source of combustion and viewed it as a possible source of the fire, but not a likely cause. [97] Cross-examined about a discarded cigarette causing or starting the fire, Cst. Edwards equivocated about whether a smouldering fire caused by a lit cigarette was a possibility that he and Cpl. Smith even considered,

stating it was definitely something they could consider. But he also testified he would say a lit cigarette was something they did consider as a possibility, but it never became a plausible rival hypothesis. [98] Noting there was some evidence of smoking material in the area, Cst. Edwards stated that material appeared old and was unlikely to have sufficient energy to start a fire. Based on his relative humidity findings, he testified the paper would have absorbed water from the air. It would have taken time for the cigarette to remove water from other materials and then cause that material to produce ignitable flames. He also commented that he did not see people discarding cigarettes in the area before the fire in the CCTV footage. [99] Indicating he found cigarette butts in the garbage can, some of which were melted into the side of the plastic, Cst. Edwards said he was not aware of them being found elsewhere in the debris. He also testified cigarettes do not disappear when they are involved in fire and they tend to find filters, offering however that not all cigarettes have filters. He commented that "big cigarettes" are manufactured to self‑extinguish and he found it difficult to imagine how throwing a cigarette under something could cause a fire, other than in very ideal conditions, including very low humidity or very high temperatures. Acknowledging a fuel configuration

could have been created with something like cardboard, Cst. Edwards said even this was unlikely because of the thickness of cardboard. [100] Although Cpl. Smith gave evidence there was no indication of a cigarette in the excavated area under the stairs, he agreed it could have been consumed by the fire or contained within the molten mass. He also acknowledged the excavation tools may have missed a cigarette butt, given their small size. In light of the carefulness of the excavation process he described, unless there was a butt from a filterless cigarette, this seems less likely to me. [101] Corporal Smith gave detailed evidence about cigarettes as a heat source, testifying that the tip will burn at 600 degrees Celsius when a cigarette is held in the open air. The temperature drops by 100 degrees when it is placed on a surface. If dropped on top of a piece of polyurethane foam, the ember would have to melt into the foam enough to cause it to reach its liquid state at 400 degrees Celsius and start off‑gassing to ignite an open flame. [102] Corporal Smith testified it is plausible for a cigarette to burn long enough to bring the foam to that temperature. Typically, he said, when foam ignites due to a cigarette, it has been smouldering for 15 to 20 minutes around the foam. In cross-examination, he agreed that a smouldering fire caused by a burning cigarette placed on a combustible

substrate like cardboard, paper, or cotton could involve a timeframe of eight minutes to one hour if the cigarette was brand new or full length. Regarding the burn time for cigarettes, Cpl. Smith also said a brand new cigarette would burn for approximately 30 minutes maximum, a filterless cigarette, which contains more tobacco, will slowly pyrolysis and burn through, if a cigarette burns at a rate of two to three millimetres per second there would be eight to 10 minutes of burn time. [103] Asked about the burn time for a cigarette discarded into fabric, Cpl. Smith agreed that dropping it into a fold would affect how long it could smoulder, given the temperature of the ember decreases with reduced oxygen. If there is enough oxygen to burn, the length of the burn time will increase. He suggested cigarettes that fall into the folds of furniture can smoulder for up to half an hour. [104] Ultimately, Cpl. Smith agreed they could not eliminate a smouldering type of fire caused by oily rags or cigarette ignition as a possible cause of the fire based on the evidence. Legal Framework Fundamental Principles [105] I start with the fundamental legal principles that apply in every criminal case: the presumption of innocence and the Crown's burden to prove the guilt of accused beyond a reasonable doubt. Section 11(d) of the Charter and the common law before it guarantees Mr. Aster is

presumed innocent unless and until the Crown has proven he committed the alleged offences beyond a reasonable doubt. The burden of proof remains with the Crown and never shifts. Mr. Aster has no obligation to call evidence or to prove anything. [106] Proof beyond a reasonable doubt is a high standard. I must be sure of the guilt of Mr. Aster. Absolute certainty is not required but proof that Mr. Aster is probably or likely guilty is not enough. As to the substance of the standard of proof, a reasonable doubt is a doubt that is based on reason and common sense. It is logically derived from the evidence or from the absence of evidence: R. v. Lifchus, [1997] 3 S.C.R. 320 at para. 39; R. v. Starr, [2000] 2 S.C.R. 144 at para. 242. [107] The standard of reasonable doubt applies to each of the essential elements of the alleged offences and the totality of the evidence, not every piece of evidence: R. v. Paquette, 2019 BCCA 396 at para. 35; R. v. Ryon, 2019 ABCA 36 at paras. 44-49. It follows that a reasonable doubt on any element must be resolved in favour of Mr. Aster. Charged Offences [108] The offence of criminal negligence causing death is set out in s. 220 of the Criminal Code, R.S.C. 1985, c. C‑46. The elements of the offence are identified in part in s. 219, which defines criminal negligence as showing wanton or reckless disregard for the lives or safety of other persons in

doing anything or omitting to do anything they have a legal duty to do. [109] To establish criminal negligence causing death, the Crown must prove beyond a reasonable doubt that: 1) Mr. Aster set the fire under the east staircase at the Econo Lodge; 2) in setting the fire, he showed wanton and reckless disregard for the lives or safety of others; and 3) his conduct caused the death of Mr. Fraser, Mr. Miller, and Ms. Sanders. [110] The offence of arson ‑ disregard for human life, set out in s. 433 of the Criminal Code, requires the Crown to prove beyond a reasonable doubt: 1) that Mr. Aster intentionally or recklessly caused damage to property by fire; 2) he knew or was reckless as to whether the property was inhabited or occupied; and 3) bodily harm to another person resulted from the fire. [111] Only the first element is essential to arson ‑ damage to property, along with not wholly owning the property in question. [112] As discussed in R. v. Tatton, 2015 SCC 33 and R. v. Doran, 2022 BCSC 1697, the criminal act captured by the arson offences is not setting the fire, but causing damage to property and, with respect to s. 433, having done so knowing the property was occupied or inhabited. Knowing includes actual knowledge or recklessness as to whether the property was occupied or inhabited. Proof Beyond a Reasonable Doubt and Circumstantial Evidence [113] The Crown's case that

Mr. Aster caused the fire intentionally, recklessly, or with wanton and reckless disregard for the lives or safety of others is circumstantial. [114] R. v. Villaroman, 2016 SCC 33 remains the leading authority on the proper approach to circumstantial evidence and proof beyond a reasonable doubt. Where one or more elements of the offence depend exclusively or largely on circumstantial evidence, the Crown must prove beyond a reasonable doubt that the accused's guilt is the only reasonable inference to be drawn from the evidence as a whole. If there are reasonable inferences other than guilt, Crown has not met their burden of proof: at para. 35. [115] When assessing circumstantial evidence, the court should consider other plausible theories and other reasonable possibilities which are inconsistent with guilt. Reasonable alternative inferences need not be based on proven facts. Instead, they may be based on the evidence or a lack of evidence. In other words, an alternative reasonable possibility may arise from a gap in the evidence. While the Crown must negate reasonable inferences inconsistent with guilt, they are not required to negate every possible conjecture no matter how "fanciful or irrational", which might be consistent with the innocence of the accused. [116] The Crown's burden does not require proof beyond a reasonable doubt of every piece of evidence: R. v. Collin, 2008 BCCA 431 at para.

17. Instead, circumstantial evidence must be assessed cumulatively and in the context of the evidence as a whole. [117] To determine whether the essential elements have been proven, the ultimate issue is whether the accused's guilt is the only reasonable inference (see also: R. v. Duong, 2019 BCCA 299 at paras. 61-62 and 64. The core question is whether the evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than guilt: Villaroman at para.

38. Mixed Statement Rule [118] As I have indicated, the Crown relies on two statements that Mr. Aster made to police. Required to tender the statements as a whole, each statement contains now‑acknowledged, potentially inculpatory statements insofar as Mr. Aster identifies himself in the video footage and acknowledges he was at the Econo Lodge shortly before the fire, and exculpatory statements denying any role in setting the fire. [119] Under the "mixed statement rule", both the exculpatory and inculpatory aspects of the statement are substantively admissible, meaning they are admissible for their truth and are not to be weighed on any presumptively different basis: R. v. Rojas, 2008 SCC 56 at para.

40. In appropriate circumstances, the exculpatory portions of an accused's statement can, in themselves, form the basis of a reasonable doubt: R. v. Sunshine, 2013 BCCA 102 at para.

56. Beyond a Reasonable Doubt Standard and Credibility [120] R. v. W.(D.), [1991] 1 S.C.R. 742 established a framework for applying the beyond a reasonable doubt standard to the issue of credibility where an accused testifies. The purpose of the framework is to ensure the burden remains on the Crown. [121] The framework was articulated as three steps: 1) if I believe the evidence of the accused, I must acquit; 2) if I do not believe the evidence of the accused, but it leaves me with a reasonable doubt, I must acquit; and 3) even if I am not left in a reasonable doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence I do accept, that I am convinced beyond a reasonable doubt by the evidence of the guilt of the accused. [122] A fourth step was later identified: if, after careful consideration of all the evidence, I am unable to decide who to believe, I must acquit: R. v. C.W.H. (1991), 68 C.C.C. (3d) 146 (B.C.C.A.). [123] In Ryon, Justice P. Martin made the point that steps one and two of the W.(D.) framework actually apply to any exculpatory evidence, whether it forms part of the Crown or the defence case. [124] Of course, as with the testimony of a witness, I may accept some, all, or none of what Mr. Aster said in his statements based on my assessment of the credibility or honesty and reliability or accuracy of "his" evidence. [125] The

authorities recognize a number of factors as helpful in assessing credibility and reliability. They include: · the witness's opportunity and ability to observe, and their ability to recall and accurately describe the events in question; · whether the witness has been untruthful on a previous occasion; · internal and external inconsistency in the witness's evidence, meaning did their testimony change between direct and cross-examination or between prior statements; · previous evidence and their evidence at trial; · whether the witness's evidence harmonizes with or is contradicted by other evidence, particularly independent or undisputed evidence; · the inherent plausibility of their evidence in the context of the case as a whole, meaning does their evidence make sense or does it seem improbable or unlikely; and · the witness's demeanour. [126] Regarding the last factor, the authorities establish a need for caution in giving significant weight to the way in which a witness presented or behaved, recognizing there is a risk of preferring the testimony of a better actor or conversely misinterpreting an honest witness as untruthful (R. v. Jeng, 2004 BCCA 464 at para. 54). [127] Caution is also required when considering a witness's motive to lie or the apparent absence of a motive to lie. The obvious potential motive of every accused person to avoid conviction cannot be

considered. Assessing the Evidence Mr. Aster's Statements [128] The Crown argues that the exculpatory parts of Mr. Aster's statements should be rejected because strong circumstantial evidence shows the fire was intentionally set, and by him, given the timing of his departure. Even considered on their own, says the Crown, his exculpatory statements are not credible. [129] Because, as I have attempted to highlight in discussing the fire investigators' evidence, I have some concerns about the reliability or strength of their opinion(s) about the cause of the fire, I will address the Crown's second argument now. [130] They assert his credibility is undermined by the fact that it was only after he was shown photographic and video evidence that he reluctantly acknowledged passing through the Econo Lodge breezeway immediately prior to the fire. Emphasizing Mr. Aster clearly knew more than he was letting on, the Crown identified and criticized his two "explanations" for the fire - being set up and the fire being electrical - as untrue feeble attempts to deflect questioning by police. The Crown emphasized "the theory" of the fire being electrically caused was easily dismissed by the expert fire investigators, and there is no evidence suggesting he was set up. [131] Depicting Mr. Aster as mentioning he was in an angry mood due to his interaction with the Tim Hortons staff person before

attending the Econo Lodge, the Crown also questioned why he would toss his backpack aside immediately prior to entering the breezeway. They suggest this shows he intended to return in a short time, rather than meandering around the courtyard looking for cigarettes. Further, the Crown argues that when he did return to the back parking lot, he left in a brisk fashion or was walking with purpose. [132] The Crown also submitted Mr. Aster's comments during the second statement, that the motel owner did not like "natives" and had kicked people out, point to a motive for setting the fire. In my view, drawing such an inference would not be reasonable. First, it is unclear from what Mr. Aster said, how he knew the owner's view, who had been kicked out and when, and if or when he stayed there himself. The recording shows Mr. Aster made the comments quite casually. Considered together they indicated the owner's actions did not really affect him. [133] In any event, it would have been clear to Mr. Aster from walking around and through the Econo Lodge before the fire, as the Crown points out, that the motel was occupied. In denying that he set the fire in his first statement, Mr. Aster made significant exculpatory statements which the Crown did not address specifically. Again, he identified the fire as hurting people, not destroying property. He emphasized that he would not hurt people. In

addition to having no reason to hurt anyone, he stated that he "respects people" and "has morals". [134] Although there is a gap in the evidence regarding the nature, amount and placement of all of the materials under the east stairs, there can be no dispute the synthetic construction materials placed in that area the afternoon before the fire contributed to its magnitude and intensity. [135] In these circumstances, the idea that Mr. Aster would have seized on an opportunity to reap revenge on the Econo Lodge owner by setting a fire under the stairwell, after noticing the accumulation of construction materials less than an hour before the fire, makes little sense to me. [136] Similarly, I view the Crown as significantly overreaching by also suggesting Mr. Aster's angry response during a brief interaction with a Tim Hortons' staff person motivated the alleged fire setting about an hour later. The video footage demonstrates that before and after his interaction at the Tim Hortons, Mr. Aster's behaviour is not consistent with being agitated or, as the defence put it, in a state of mind consistent with an intention to set a dangerous fire. [137] I would not assess Mr. Aster's exculpatory assertions as not credible based on the Crown's assertion that he was not forthcoming and clearly knew more than he was saying. Along with other considerations, I bear in mind he made the

statements during police interviews when he had a right to remain silent and no obligation to say anything. [138] Regardless, I disagree with the Crown's characterization of how Mr. Aster made his statements and, in some instances, what he said. In his first statement, Mr. Aster only denied setting the fire when Cpl. Anderson asked him directly. Similarly, he made his second statement after the evidence presentation and the interview had ended, in response to being asked by Cpl. Gardiner how he felt about what he was shown. He offered what the Crown identifies as "theories" when Cpl. Gardiner asked if he had an alternate story. Regarding the theory of an electric fire, he said probably electric. Again, in response to being asked why he said this, he explained it was because he did not start the fire. He went on to reiterate his previous account of walking through the area looking for a cigarette butt. Agreeing, much as he had in his first interview, that the picture(s) shown to him were of him, he reiterated he never started the fire. It is only after Cpl. Gardiner raised the suspicious timing and suggested he must be saying it was a coincidence, that Mr. Aster remarked, "It's like a setup or something." [139] Nothing in how or what he said, in my view, was unreasonable if it is not assumed that he intentionally set the fire. [140] The Crown also submits that Mr. Aster's

credibility is undermined by an inconsistency between his comments during the second statement about staying and not staying at the Econo Lodge. Absent any clarifying questions, I am not prepared to identify this as a significant inconsistency. His answers could reflect the distinction between being a resident there and, as Cpl. Gardiner suggested, simply crashing there. [141] Ultimately, I agree with many of the defence submissions regarding the assessment of Mr. Aster's statements. Addressing some of his responses during his first statement in particular, his counsel makes the point that Mr. Aster said he had been using heroin that day and he used heroin every day. The drug use he reported provides important context for his comments about not remembering very much. [142] Pressed about what he was doing before the fire, he described doing what he did every day, that is looking for a high. In these circumstances, his stated struggle to recall where he went and what he did on that particular day makes sense, practically and logically. This conclusion is reinforced, as the defence suggests, by the compilation video which shows him meandering rather circuitously around various parts of the downtown area, back and forth through certain areas, including the area around the Econo Lodge. Even if he had a good memory, his specific route would have been difficult to recall. [143] The

defence also suggests Mr. Aster, in fact, responded reasonably when Cpl. Anderson asserted he knows it is Mr. Aster in the Tim Hortons' photo. Again indicating he did not remember, Mr. Aster nonetheless accepts it must have been him. Witnesses [144] The Crown's made the unchallenged submission that the police witnesses and lay witnesses gave credible testimony. I would largely agree. I put little weight however on Ms. Pierre's specific evidence she first heard the sound of crackling at 8:15 a.m., not because I did not find her credible but instead given the chaos and intensity of the circumstances that followed, and the other discrepancies related to time between her testimony and Civilians. Discussion [145] Asserting Mr. Aster should be found guilty of all five counts in the indictment, the Crown argues his statements do not raise a reasonable doubt when considered in the context of the CCTV footage showing he had an exclusive opportunity to set the fire that started immediately after he left the Econo Lodge and the expert opinion evidence of the fire investigators about the cause of the fire. [146] Although Cpl. Smith and Cst. Edwards could not eliminate a smouldering fire as a possible cause, the Crown characterized the defence theories as having no merit, implausible and lacking sufficient independent supporting evidence. Of course, reasonable inferences are not required to

be based on proven facts. They may be based on evidence or a lack of evidence. [147] The Crown also suggests to have any merit, the following items would have needed to align perfectly: evidence of balled‑up oily rags placed within the area during the three‑ to five‑hour timeframe as stated by Cpl. Smith and then, by coincidence, igniting within seconds of Mr. Aster leaving the courtyard. [148] This assumes, however, the opinion that an incendiary fire was set with an unknown form of heat applied to unknown materials, in the context of the evidence as a whole, proves beyond a reasonable doubt the fire was deliberately or recklessly set immediately prior to the first signs of smoke. [149] Although the Crown is not required to prove motive, I have already discounted the submission that Mr. Aster displayed a mental demeanour consistent with deliberately setting the fire, based on the Tim Hortons' photograph. [150] Also arguing the video footage shows Mr. Aster scoping out the collection of renovation materials under the stairs just before 8:00 a.m., the Crown further describes changing from red pants to darker clothing, a hoodie over his head, and wearing gloves as suspicious or consistent with guilt. Aside from replacing his pants with long dark shorts, however, Mr. Aster wore the same clothes and the gloves as he had been all morning. The compilation video demonstrates, before

and after he changed his pants, Mr. Aster was meandering through the downtown area. There is no indication he made any attempt to avoid being seen. On the contrary, throughout the time he was in the back parking lot of the Econo Lodge, he remained visible and was at times in close proximity to other people. [151] The Camera 24 footage of Mr. Aster's second visit to the courtyard only establishes that he was behind the east stairs for a matter of some seconds not long before smoke became visible, not what he did during that time. [152] Contrary to the Crown's submissions, based on my own rather painstaking examination of the video footage, I do not agree, as I have indicated, that Mr. Aster's departure from the back parking lot after his second visit was particularly brisk or purposeful and therefore indicative of consciousness of guilt. In fact his pace was no different from how he walked at other times that morning before the fire. Based on the video footage as a whole, I would characterize most of Mr. Aster's behaviour before and after the fire, that is meandering, looking at, and picking up things from the ground, as inconsistent with an intention to set a fire or having just set a dangerous fire. [153] As my review of the evidence indicates, some gaps in the evidence are relevant to, if not probative of, reasonable alternative possibilities. Accepting the construction

materials under the stairwell included synthetic carpet and foam underlay and, as Cpl. Walaszcyk and Mr. Klein observed, upholstery and wood tacking, and the pile of debris was large, if not very large, based on his estimate, again there is no specific evidence about the materials that were placed under the stairs, what else was already there, how much there was, and how any and all of the materials were configured. [154] A number of consequences flow from this lack of evidence. In all the circumstances, unlike Cst. Edwards, I am not able to reject the possibility that the materials included oily rag(s). His comment they were not observed by witnesses if admissible for its truth would not be reassuring, particularly given the presence of a paint can, the construction materials themselves, the apparent renovation and perhaps the unexplained turned off fire alarm system. [155] Furthermore, I would not interpret Cpl. Smith's evidence about the timeframes for a smouldering fire started by an oily rag or a lit cigarette as more than estimates. If anything is clear from the expert fire evidence, it is the multitude of variables and circumstances that can bear on the cause of a fire and the trajectory of the cause. Coupled with this conclusion is the Econo Lodge video footage showing other persons behind the east stairs, aside from Mr. Aster, before the fire on July 8, 2020. [156]

Also missing from the evidence, however, is as I have said, Camera 24 video footage taken after the materials had been placed under the stairs on July 7, 2020 until about 7:45 a.m. on July 8, 2020. Without suggesting that endless hours of video footage ought to have been adduced, and although Cpl. Walaszcyk testified to not seeing anyone in the area until 6:30 a.m., I have not had the benefit of viewing the Camera 24 footage from before sunrise up to about 7:45 a.m., except for the short snippet of video introduced by the defence. [157] The area behind the east stairs appears dark in the video footage that is in evidence. I do not know if or to what extent the courtyard was illuminated at night and, if so, what effect the illumination had on the area. Some hours prior to the fire, the courtyard could have been in darkness, gradually progressing to daylight at some point. [158] Although an incendiary fire could be the most plausible cause, and I accept the fire experts' conclusion that a fire was probably incendiary could ground a beyond a reasonable doubt finding if supported by the evidence, in light of the evidence as a whole, including all of the fire experts' testimony and the absence of evidence, I am left without confidence in the strength or reliability of their conclusion that this fire at the Econo Lodge was (probably) incendiary. [159] Without repeating much of my

discussion of the evidence of Cst. Edwards and Cpl. Smith, I would highlight the uncertainty that arises from the point of origin, the source of heat, and the materials first ignited being unknown, Cpl. Smith's description of the outcome of the investigation and his various acknowledgments in cross-examination, as well as some of the less than persuasive factors Cst. Edwards relied on in supporting his conclusion the fire was incendiary. Cross-examination also undermined, as I have indicated, the conclusions in the report regarding the impact of environmental conditions and relative humidity, in particular. Both experts also often spoke about what is "typical" in providing their evidence. It is apparent that neither Cst. Edwards nor Cpl. Smith engaged in meaningful hypothesis testing as required by the application of the scientific method to fire investigations. [160] Although Mr. Aster appeared to have the best if not only opportunity to set a fire that did actually start right before smoke became visible, as I have said, the report also indicates the investigators did not reach a conclusion about the time of ignition, other than the fire "appeared to propagate readily into the pile of renovation materials." [161] Again, there is no evidence about the actual configuration of construction materials under the east stairs. Based on common sense and logic, in my view, the

relatively short periods of time Mr. Aster spent behind the stairs are not consistent with closely examining what was there and organizing a fire‑conducive configuration. [162] In light of my assessment of the whole of the evidence, the absence of evidence, my concerns about the reliability of the fire investigators' expert opinions, as well as Cpl. Smith's acknowledgments, I am not able to conclude there are no other reasonable inferences about how the fire started, including it being set accidentally by an errant cigarette, particularly one that fell into the folds of fabric, or the fire starting as smouldering fire caused by an oily rag or some combination of circumstances. Along with this, I am not persuaded that the Crown's circumstantial case is nearly strong enough to justify rejecting Mr. Aster's exculpatory statements, assessed in the context of the evidence as a whole. [163] In the result, I am not satisfied beyond a reasonable doubt that the fire was intentionally or recklessly set. It follows that the Crown has failed to prove any of the alleged offences beyond a reasonable doubt. Accordingly, I find Mr. Aster not guilty on all five counts in the indictment. "Fleming J."