COURT OF APPEAL FOR ONTARIO

DATE: 20000308

DOCKET: C28942

FINLAYSON, WEILER AND SHARPE JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Respondent

and

MICHAEL ROBERT

Appellant

Michael Code and Benson Cowan for the appellant

Milan Rupic for the respondent

Heard: January 11 and 12, 2000

On appeal from the conviction of Cusson J., sitting without a jury, dated November 12, 1997.

SHARPE J.A.:

[1] The appellant was convicted of intentionally causing fire to a dwelling knowing the property was inhabited and of intentionally causing damage by fire to a dwelling he did not fully own. He was sentenced to 18 months imprisonment on each count, to be served concurrently. The Crown’s case was entirely circumstantial. The appellant was present when the fire started, but he claimed the fire was accidental. The trial judge, sitting without a jury, held that in order to convict, he had to be satisfied “that the proven facts [lead] the court to no other reasonable conclusion than the guilt of the accused”. The appellant submits that rather than apply this principle to test the case for the Crown, the trial judge used it to test the appellant’s explanation for the cause of the fire. The appellant argues that this required him to provide a reasonable explanation for the fire on proven facts and, effectively, reversed the burden of proof.

[2] The appellant resided with his wife in a two-storey home with an attached garage. On the morning of July 3, 1994, he mowed his lawn with a Sears lawn tractor. That evening, he drove the tractor into the garage. Moments later, a fire started in the garage. The fire spread quickly and destroyed the house.

[3] The Crown’s theory was that the appellant dismounted the tractor, doused a pile of newspapers with gasoline and deliberately ignited the fire. The case was entirely circumstantial and the Crown conceded that there was no proof of motive.

[4] The theory of the defence was that the fire was an accident. The appellant testified that after he got off the tractor, and as he left the garage he heard an explosion that knocked him to the ground. He got up and immediately warned the occupants of the house that it was on fire. The defence called expert evidence to show that a possible cause of the fire was a backfire from the tractor which could ignite a small quantity of spilled gasoline.

[5] The appellant testified that on the morning of July 3, 1994 he filled his riding mower with gasoline from a red plastic two- gallon jerry can. He testified that while it was his usual practice to put the cap and the vent cap tightener back on the container, he had no specific recollection of having done so on this occasion. The appellant mowed his lawn and left the lawn mover outside the garage. The garage doors were left open all day. In the early afternoon, his in-laws arrived. They brought with them a stack of newspapers that the appellant required to train his new dog. The appellant moved the newspapers next to the jerry can.

[6] After dinner, the appellant drove his tractor around the property and then into the garage. It is his evidence that he stepped off the tractor, removed the key and that, as he was walking away from the tractor, he heard a noise. He then found himself laying face down on the ground with a fire burning. The appellant immediately ran to the house and yelled for everyone to get out. The fire destroyed the house.

[7] The appellant’s wife testified that she heard the appellant drive the tractor into the garage and then she heard a bang. She thought that he drove into the garage wall. Next she heard the appellant yelling that the house was on fire. She also testified that, earlier on the day of the fire, she noticed that the jerry can was in the garage and that its top was missing. She was concerned that her daughter’s friend, who had been in the garage and had stumbled, might have knocked over the jerry can. She went to investigate but could not see any gasoline spilled out of the jerry can. The appellant did not smell gasoline as he drove into the garage, but he testified that he had a deficient sense of smell. He did not recall knocking over the jerry can.

[8] The jerry can itself was destroyed by the fire. It was not possible to determine from the remaining melted plastic whether it had been standing on its bottom or on its side as it burned. However, another witness, Antony Weir, a neighbour of the appellant, came by as the fire was burning. It was his evidence that the jerry can appeared as a silhouette and that it was standing upright as the fire burned around it.

[9] The 13-day trial proceeded intermittently over the course of 15 months between November 12, 1996 and May 22, 1997. On November 12, 1997, the trial judge gave reasons for judgment convicting the appellant. The trial judge did not explicitly reject the evidence of the appellant nor did he express any clear view as to the appellant’s credibility. The trial judge accepted as a possible scenario that a backfire had occurred. However, the trial judge found that if the fire had been caused accidentally by backfire, there had to have been a significant gas spill on the garage floor. The trial judge found that a spill was not established. The trial judge attached particular significance to the evidence of a neighbour that, as the fire was burning, he could see the jerry can standing upright.

[10] The appellant seeks leave to introduce fresh evidence relating the trial judge’s prior involvement in family law proceedings involving the appellant, that allegedly gives rise to a reasonable apprehension of bias.

Issues

[11] The appellant raises the following issues:

1. Was the verdict unreasonable and unsupported by the evidence?
2. Did the trial judge misapprehend or fail to consider relevant evidence?
3. Did the trial judge effectively reverse the burden of proof?
4. Was there a reasonable apprehension of bias arising from the trial judge’s prior involvement in a family law proceeding involving the appellant?

Analysis

Issue 1: Was the verdict unreasonable and unsupported by the

evidence?

Issue 2: Did the trial judge misapprehend or fail to consider

relevant evidence?

[12] As these two grounds of appeal are related and as we did not find either to have sufficient merit to warrant calling upon Mr. Rupic for a response, they can conveniently be dealt with together.

[13] Mr. Code took us through a detailed review of the evidence and made forceful submissions that the conviction should be set aside and an acquittal entered. In view of the conclusion I have reached on the third ground of appeal, which leads me to conclude that the convictions must be set aside and a new trial ordered, I consider it neither necessary nor appropriate to review the evidence in detail. It suffices to say that, at the conclusion of Mr. Code’s submissions, we indicated that, subject to the third ground of appeal, we were not persuaded that he was able to demonstrate reversible error.

Issue 3: Did the trial judge effectively reverse the burden of

proof?

[14] In his reasons for judgment, the trial judge noted that the Crown’s case was entirely circumstantial. He described the standard of proof he intended to apply to the Crown’s case in the following terms:

[T]his court cannot convict the accused unless it is convinced beyond a reasonable doubt that the proven facts leads the court to no other reasonable conclusion than the guilt of the accused.

[15] This test, often referred to as the rule in Hodge’s case, has often been used to described how the trier of fact is to assess the case for the Crown when it is based on circumstantial evidence. However, since the decision of the Supreme Court of Canada in R. v. Cooper (1977), 1977 11 (SCC), 34 C.C.C. (2d) 18 (S.C.C.), it is clear that the rule in Hodge’s case is not “an inexorable rule of law in Canada”. As was pointed out by this court in R. v. Fleet (1997), 1997 867 (ON CA), 120 C.C.C. (3d) 457 at 464-465, the formula referred to by the trial judge is but one of the ways of describing the essential test, which remains, has the Crown proved the guilt of the accused beyond a reasonable doubt:

We read the object of both judgments in Cooper to be the eradication of any formulaic approach to such cases so long as the jury is clearly made aware of the necessity to find the guilt of the accused to be established beyond a reasonable doubt. This object may be achieved in more ways than one. Thus, the trial judge, reviewing the evidence and setting out the position of the defence and relating the substantial parts of the evidence to that position, may frame the requisite instruction in the manner he or she considers most appropriate in the circumstances, for example, by:

(a) charging the jury in accordance with the traditional language of proof beyond a reasonable doubt (per Laskin C.J.C. in Cooper);

(b) charging the jury in accordance with that language and pointing out to the jury the other inferences that the defence says should be drawn from the evidence and the necessity to acquit the accused if any of those inferences raises a reasonable doubt (as the trial judge did in Cooper in the final portion of his recharge); or

(c) charging the jury that it must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts (per Ritchie J. in Cooper and Dubin J.A. in Elmosri).

The essential requirement is to impress upon the jury the need to find guilt proven beyond a reasonable doubt and to make plain to them the manner in which such a doubt can arise in the context of a case of proof of identity by circumstantial evidence.

[16] It is clear from Cooper, supra and Fleet, supra that whatever formula is used, it must not divert attention from the essential issue, namely, has the Crown proved the guilt of the accused beyond a reasonable doubt?

[17] In my view, the trial judge’s use of the Hodge’s case formula had that unfortunate result in the present case. Rather than ask whether the Crown had proved the guilt of the accused beyond a reasonable doubt, the trial judge made his finding of guilt by using the formula to test the explanation for the possible cause of the fire offered by the accused. The trial judge required that the appellant offer an explanation based on the “proven facts”, a standard that is never applicable to an accused and, for reasons I will explain, a standard that may no longer even be applicable to the Crown.

[18] Early in his reasons, the trial judge set out his basic approach:

In this case, as is usually the case when only one person is at the scene when a fire starts, the question of that person’s explanation of how the fire started is very crucial. Is that explanation credible, taking the known circumstances into account? Are there any other reasonable explanations for the fire ignition, if that of the accused is not acceptable. Is the only reasonable conclusion the one that a deliberate fire was set? In the instant case, we know only the accused was present when the fire ignited. Was it an accident or was it deliberate?

[19] After reviewing the evidence, the trial judge examined each of the possible causes of the fire offered by the defence. The possible combination of aluminum nitrate with some organic material was rejected as “…this could not be considered as a reasonable conclusion from the proven facts”. The presence of a damaged electrical cord was also dismissed: “…this scenario does not lead one to conclude it is a reasonable probability on the factual evidence at hand”.

[20] This left the third and most plausible explanation for the cause of the fire offered by the appellant, namely, the possibility of a backfire igniting gas accidentally spilled in the garage. The trial judge found that he had “no difficulty accepting that Mr. Robert’s tractor could have backfired” as described by the defence expert. However, the trial judge found that the other essential element of that explanation, namely, a gas spill, had not been made out:

That is too far fetched to be considered a reasonable conclusion as to how the gas spill on the floor came about in the face of Mr. Weir’s evidence which I accept.

While theoretically, the backfire scenario is a feasible one, it becomes unacceptable as a reasonable inference from the proven circumstantial facts. The evidence with respect to the feasible gas spill is not present. Accordingly, I must reject that theory for the reasons I have stated.

The court is then left with only one reasonable inference to be drawn from the proven facts. That is that this fire was deliberately set.

[21] The trial judge took as the starting point the presence of the appellant at the scene of the fire and then scrutinized the case for the defence by asking whether it established innocent cause for the fire. The appellant was, in effect, required to satisfy the trial judge that an accidental cause was made out as a “reasonable inference” or as a “reasonable conclusion” from the “proven facts”. With respect, that was not the issue from the perspective of the appellant. It was for the Crown to show beyond a reasonable doubt that there was no other reasonable inference than the guilt of the accused. The appellant was entitled to an acquittal if there was a reasonable doubt on all of the evidence, a conclusion sustainable at a threshold significantly lower than a “reasonable inference” from “proven facts”.

[22] In my view, the trial judge took a formula, designed to test the case for the Crown, and applied it to the accused. This set the standard too high. It is trite law that an accused need only raise a reasonable doubt as to guilt to gain an acquittal. There is no affirmative obligation on an accused to prove anything by way of reasonable conclusion or reasonable inference. As Martin J.A. stated in R. v. Campbell (1977), 1977 1191 (ON CA), 38 C.C.C. (2d) 6 (Ont. C.A.) at 22, “…reasonable possibilities in the accused’s favour may give rise to a reasonable doubt”.

[23] The use of the phrase “proven facts” is problematic, particularly from the perspective of the accused. There is no obligation on an accused to prove any facts. As was stated in Ungaro v. The King (1950), 1950 23 (SCC), 96 C.C.C. 245 (S.C.C.) at 251 “…if the judge or jury conclude the explanation ‘might reasonably be true’, which is quite different from whether it is true, reasonable or probable, then a reasonable doubt exists to which the accused is entitled to the benefit”. See also Latour v. The King (1950), 98 S.C.C. 258 (S.C.C.) at 262, 264 and Linney v. The Queen (1977), 1977 170 (SCC), 32 C.C.C. (2d) 294 at 298.

[24] Indeed, as Mr. Code submitted, following R. v. Morin (1988), 1988 8 (SCC), 44 C.C.C. (3d) 193 (S.C.C.) and R. v. Miller (1991), 68 C.C.C. (3d) 517 (C.A.) even the Crown is not required to prove specific facts, but rather is required to prove the overall verdict. In R. v. Charemski (1998), 1998 819 (SCC), 123 C.C.C. (3d) 225 (S.C.C.), a recent decision dealing with motions for non-suit in cases based on circumstantial evidence, the test to be applied by the trier of fact is described in the following terms: “…a finding of guilt could only be made where there was no other rational explanation for the circumstantial evidence but that the defendant committed the crime…”. This formulation avoids the phrase “proven facts” and is in keeping with the principles stated in Morin, supra and Miller, supra.

[25] The trial judge required the appellant to provide a reasonable explanation for the fire based upon proven facts, a standard that is not justifiable in law. It follows that the convictions cannot stand.

Issue 4: Was there a reasonable apprehension of bias arising

from the trial judge’s prior involvement in a family law proceeding involving the appellant?

[26] The appellant sought to introduce fresh evidence on appeal in support of the allegation that there was a reasonable apprehension of bias on account of the trial judge’s prior involvement in a family law proceeding involving the appellant. The respondent did not resist admission of the evidence on the basis that where fresh evidence is adduced in support of an allegation that there was unfairness in the trial process and the issue is raised for the first time on appeal, an appellate court may receive the evidence to see if the allegation is made out: R. v. Joanisse (1995), 1995 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.).

[27] While the conclusion I have reached on the third ground of appeal makes consideration of this ground redundant, I think it appropriate to indicate my view that fresh evidence was entirely unpersuasive in demonstrating a reasonable apprehension of bias.

[28] The facts are briefly as follows. Following the fire that destroyed their home, the appellant and his wife become involved in bitterly fought matrimonial litigation. In September 1994, the wife obtained an interim custody order with unsupervised access to the appellant. The appellant was arrested on September 15, 1994 for the offences at issue here. He was released on bail. The wife then applied for an order restricting the appellant’s access and the judge hearing the application indicated that she was not prepared to vary the earlier order but that, as there were possible inconsistencies between the custody order and the terms of the appellant’s bail, both matters should be brought back before the court together. The joint application of the wife to vary the terms of access and of the appellant to vary the terms of his bail came before Cusson J. on November 4, 1994. The affidavits filed by the wife contained serious allegations of wrongdoing against the appellant. However, there was no cross-examination on the affidavits and no oral evidence presented. Cusson J. adjourned the applications on the following terms:

This Court orders that an assessment shall be completed by a competent person as agreed between the parties or as ordered by this court, the costs to be shared equally between the parties.

This Court orders that the question of access is modified to supervised access, the supervisor to be approved by the CAS, once a week on Saturday between 10:00 a.m. and 6:00 p.m.

This Court orders that the matter is adjourned further until after the Respondent’s bail review proceedings…

[29] The matter came back before another judge on March 10, 1995. The wife was awarded interim custody and the appellant was granted unsupervised access.

[30] The fresh evidence indicates that during the trial, both the appellant and his trial counsel became aware that the trial judge had made the order adjourning the matrimonial proceedings. They did not object to the trial judge continuing with the case.

[31] In my view, these facts fall well short of establishing a case for reasonable apprehension of bias. The involvement of the trial judge in the matrimonial proceedings almost a year before the commencement of the trial was minimal. He heard no evidence and he made no findings. While he did make an interim order limiting the terms of the appellant’s access, that was plainly on an “interim-interim” basis and, by ordering an assessment, it reveals that the trial judge did not expressly decide anything. Trial judges routinely deal with many such motions in the course of a single day. The reasonable observer would conclude that it would be highly unlikely that a judge would even recall, a year later, factual allegations made in affidavits filed in support of a motion that was adjourned. The involvement of the trial judge in the matrimonial proceedings was hardly memorable to the appellant. On his own evidence, he did not recall the fact until reference was made to the order the trial judge had made by one of the witnesses. The failure of the appellant and his counsel to object when they became aware of the facts is telling.

[32] Taking all these facts into account, it is my view that the fresh evidence falls well short of demonstrating that a reasonable person, informed of all the circumstances, would have a reasonable apprehension of bias.

Conclusion

[33] As I have concluded that the trial judge erred with respect to the burden of proof, I would set aside the conviction and order a new trial.

“Robert J. Sharpe”

“I agree G.D. Finlayson”

“I agree K.M. Weiler”

Released: March 8, 2000