R. v. Torchia, 2002 CanLII 45011 (ON CA)

DATE: 20020812 DOCKET: C34215

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. ANGELO TORCHIA (Appellant)

BEFORE:

CATZMAN, DOHERTY and CRONK JJ.A.

COUNSEL:

Alan D. Gold

for the appellant

Christine Tier

for the respondent

HEARD:

August 8, 2002

On appeal from the conviction entered by Justice Donald MacKenzie on February 28, 2000 and the sentence imposed on May 11, 2000.

E N D O R S E M E N T

1[1] Mr. Gold submits that the trial judge’s reasons reveal various errors. We called on the Crown to respond to two of those submissions. One arises out of the trial judge’s treatment of the evidence of financial motive and the other out of his treatment of the evidence of the certificate of status of the monitoring of the alarm system.

2[2] We can dispose briefly of the remaining submissions with respect to conviction as follows. Reasons for judgment are to be read in their entirety and in the context of the evidence adduced and the issues raised at trial. When the reasons of MacKenzie J. are read in that manner, we see no material misapprehension or misstatement of the evidence, no failure to apply the proper burden of proof, and no flawed assessment of credibility. He was not obliged to address in his reasons every piece of evidence adduced during this lengthy trial that potentially offered some support for the defence, and he cannot properly be faulted for failing to do so.

1[3] MacKenzie J. properly outlined the positions of the Crown and the defence regarding financial motive and adequately reviewed the evidence on the subject. While he described the effect of that evidence in terms that may have been somewhat overstated, there was evidence before him, which he was entitled to accept and did accept, of significant financial difficulties and cash flow stress and of considerable indebtedness which provided the financial motive he found to exist for the appellant’s actions.

2[4] MacKenzie J. described the evidence regarding the altered form of certificate respecting the alarm security system as a matter “of great significance and bearing on the question of the [appellant’s] intent to defraud the insurer”. He summarized the evidence accurately, rejected the appellant’s explanation, and found that the appellant gave instructions to alter the certificate “in order to meet a pressing condition for his continued coverage during the third week of December, 1996”. In our view, it was open to him to reach that conclusion on the evidence and to view the alteration of the certificate, as he did, as demonstrative of the appellant’s willingness to deceive his insurer to ensure that there was no disruption in the insurance coverage on his home.

3[5] In light of the foregoing, it follows that, in our view, the verdict was not unreasonable. While the Crown’s case was entirely circumstantial, there was cogent evidence that the fire was incendiary in origin, cogent evidence of motive, cogent evidence of opportunity and some evidence of premeditation.

4[6] We did not call upon Crown counsel to respond to the appellant’s submissions respecting sentence. The custodial sentence imposed was --- as experienced defence counsel acknowledged at trial --- within the acceptable range, and there is no basis on which appellate interference with that sentence is justified.

5[7] It was also open to the trial judge to exercise his discretion in imposing the restitution order that he did. In granting a restitution order for $473,000, MacKenzie J. specifically directed that credit should be given for “any amount to be realized from the sale by the insurer of the lands” in question. In this court, Mr. Gold and Ms. Tier were in agreement that the amount realized from that sale was $170,000, and the amount of the restitution order should be reduced accordingly.

6[8] Subject to the reduction noted in the preceding paragraph, the appeal is dismissed.