DATE: 20051110
DOCKET: C42487
COURT OF APPEAL FOR ONTARIO
GOUDGE, ARMSTRONG AND BLAIR JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Michael Lacy
for the appellant
Respondent
- and -
DONNA VIEIRA
Tina Yuen
for the respondent
Appellant
Heard: October 31, 2005
On appeal from the conviction by Justice Ian V. B. Nordheimer of the Superior Court of Justice dated June 16, 2004 and from the sentence imposed by Justice Ian V. B. Nordheimer dated October 14, 2004.
BY THE COURT:
[1] Counsel for the appellant raises two issues on the conviction appeal.
[2] First he says that the trial judge erred in law in rejecting the defence expert evidence on the basis of three reasons that are irrelevant to this task or at least were overemphasized by the trial judge.
[3] We do not agree. Turning to the first two reasons challenged, in our opinion both the fact that the defence expert did not visit the scene of the fire and that he was not present in court for the eyewitness evidence are relevant considerations in evaluating the expert’s testimony. They are at least of some help in that task. It cannot be said that they are irrelevant.
[4] Moreover their weight was for the trial judge. He did not overemphasize these factors. He clearly relied on a number of other reasons as well in rejecting the defence expert. These include the manner in which it was given, the witness’s flawed understanding of the Crown’s expert evidence, and his offering implausible alternative explanations for the fire.
[5] The appellant also says that the defence expert cannot be faulted for disregarding the evidence about the detector dog. While we agree, we do not read the trial judge as relying to any significant extent on this as a basis for rejecting his evidence. Rather it appears to be the style with which the expert disregarded this evidence, “out of hand” as he said, that troubled the trial judge. This was consistent with the trial judge’s concern that generally the expert had a relatively closed mind in approaching his testimony. Moreover, this was at most a minor factor in moving the trial judge to his conclusion.
[6] The appellant’s second argument is that without a finding of when the fire started, the finding of exclusive opportunity is unreasonable.
[7] Again we disagree. There was ample evidence from which a reasonable trier could conclude that the fire in the basement started shortly before its discovery, when the appellant was alone in the house. Had it started several hours earlier and smouldered for some time, there would likely have been evidence of smoke much earlier than there was. Yet the appellant appears to have seen none.
[8] As to sentence, while the trial judge noted the appellant’s lack of remorse, we cannot find that he used this as an aggravating factor. We cannot agree therefore that he erred in principle.
[9] The appellant fairly acknowledges that although it is at the high end, the sentence is within the range. We agree with both points.
[10] In summary, despite Mr. Lacy’s able argument, the conviction appeal and the sentence appeal must both be dismissed.
RELEASED: November 10, 2005 “STG”
“S. T. Goudge J.A.”
“Robert P. Armstrong J.A.”
“R. A. Blair J.A.”