The Saskatchewan Court of Appeal has upheld the guilty verdict of a man handed prison time for harassing and setting his neighbours' house on fire but reduced his prison sentence.
Gerald Criece was sentenced to five and a half years in prison for setting fire to Thomas and Diane Kowalchuk’s house, breaking a window of a police vehicle, and willfully yelling and swearing at Thomas Kowalchuk.
The Saskatchewan Court of Appeal, however, reduced Criece’s prison sentence to four years, less 330 days credit for pre-sentence custody.
“I have concluded that the trial judge did not err as alleged by Mr. Criece in relation to his convictions and would accordingly dismiss that appeal,” said Justice Brian Barrington-Foote, in concurrence with Justices Liam Schwann and Jillyne Drennan. “I would grant Mr. Criece leave to appeal his sentence and allow that appeal in part.”
Court heard that, by all accounts, Criece and Thomas and Diane Kowalchuk were good neighbours in Canora. On occasion, Criece would sit with Diane Kowalchuk, who had dementia, while Thomas Kowalchuk was out.
“This neighbourly relationship changed on October 9, 2021, when a verbal dispute escalated into threats by Mr. Criece against Mr. Kowalchuk and to a physical fight in the middle of the street,” said Justice Barrington-Foote in his April 17 written decision.
A police officer had attended at Kowalchuk’s request and, after concluding that the fight was consensual, he left.
“The truce that appeared to have been reached on October 9 would prove to be short-lived,” said Justice Barrington-Foote.
On Oct. 10, 2021, Criece repeatedly shouted insults and obscenities across the street at Thomas and Diane Kowalchuk. Two police officers arrived and spoke with Criece. They testified that Criece appeared to be intoxicated and he had been immediately argumentative, swearing at them and ordering them off his property, while referring repeatedly to the events of the previous day.
After police left, Criece renewed his verbal onslaught by shouting obscene remarks about the Kowalchuk’s daughter and making lewd gestures, court heard.
Thomas Kowalchuk once again called the police, and the two officers returned, believing that they had grounds for an arrest. The officers both said that Criece had failed to respond when they knocked on his door. They had then crossed the street to speak to Kowalchuk and, while they were there, heard a “bang” or “snap.” When they returned to their vehicle, they had observed that there was a small hole in one of the windows, which had been broken.
Video evidence from two of Criece’s cameras had captured him stepping out the side door of his house and taking three shots with a slingshot in the direction of the police vehicle and a hole appearing in the window of the vehicle and glass falling to the ground.
“Regrettably, the main event was yet to come,” said Justice Barrington-Foote.
That night, Thomas Kowalchuk heard what he described as a “big boom” and saw flames out the backdoor. He said that the backdoor was the main exit, as the front door was blocked off with furniture and there were no steps at the front of the house. After calling 911 to report the fire, he ran outside and saw flames shooting up from beneath the deck, where he saw a half-full jerry can of gasoline that was alight. He extinguished the fire with a garden hose. The fire chief, who arrived later that evening and examined the scene, testified that there was a strong smell of gasoline and that an accelerant had been used.
DNA testing of a swab from the jerry can revealed DNA from only one person, that being Criece, court heard.
Video obtained from a close neighbour recorded a bright light consistent with the start of the fire breaking out at the back of the Kowalchuk home, followed by a person leaving that side of the street and walking hurriedly in the direction of Criece’s home.
Another neighbour testified that he had gone to Criece’s house to see how he was doing about two hours before the fire broke out. He said that Criece was wearing black pants, a black T-shirt and a ski mask, and that Criece had shoved him to make him leave and said “Well, that puts a damper on my plans."
Criece had appealed his convictions based solely on the allegation that the trial judge erred in law by failing to comply with his obligation to assist him as a self-represented person. He claimed, that as a result, trial fairness was compromised, resulting in a miscarriage of justice.
“Having considered these allegations together with the entire record, it is my opinion that while the trial judge did not provide adequate assistance in certain respects, that did not result in trial unfairness and a miscarriage of justice,” ruled Justice Barrington-Foote.
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