Court File and Parties

Citation: R. v. Aoun, 2008 ONCA 834 Date: 2008-12-09 Docket: C47513

Court of Appeal for Ontario Sharpe, Blair and Rouleau JJ.A.

Between: Her Majesty The Queen Respondent

and

Eddy Elias Aoun Appellant

Counsel: D. Condo for the appellant Greg Skerkowski for the respondent

Heard and released orally: December 3, 2008

On appeal from the judgment of Justice C.T. Hackland of the Superior Court of Justice dated April 13, 2007.

Endorsement

[1] The appellant raises two grounds of appeal against his conviction on one count of arson endangering life and one ground of appeal in relation to his conviction on one count of causing damage by fire to a dwelling house with intent to defraud.

1) R. v. W.(D.)

[2] The appellant contends that the trial judge failed to apply the R. v. W.(D.) standard. While the trial judge did not recite the W.(D.) formula, in our view, his reasons make it clear that he properly considered the issue of reasonable doubt. In particular, he specifically considered whether the appellant’s out-of-court statements gave rise to a reasonable doubt and concluded that they did not have that effect.

2) After-the-fact conduct

[3] We see no error in relation to the trial judge’s use of evidence of phone calls before and after the fire and of the meeting the day after the fire. It was open to the trial judge to reject the appellant’s explanation for those calls and for that meeting and to treat this evidence as evidence of acts in furtherance of a conspiracy to commit arson.

3) Causing damage by fire to a dwelling house with intent to defraud

[4] In our view, the trial judge did not make the findings required to support the conviction for what was alleged in Count 5 of the indictment, namely, that the appellant had with the intent to defraud Pilot Insurance, caused damage by fire to his property. While there may well have been evidence from which the mens rea to commit this offence could have been inferred, there is no finding to that effect. As we read his reasons, the trial judge treated this count as one of attempted fraud. The trial judge found that the appellant had assisted his brother in advancing the insurance claim on behalf of the corporation that owned the property. However, the trial judge did not find that the appellant had the intention to defraud when he caused damage to his property. The thrust of the Crown’s case was that the appellant had the fire set to rid himself of undesirable tenants and as the trial judge observed at one point during the sentencing submissions: “There doesn’t appear to be any real fiscal motive here, that’s true.” In our view, in the absence of a finding to the effect the appellant had caused the fire with the intent to defraud, an essential element of this offence, the conviction cannot stand and a new trial must be ordered on that count.

Sentence appeal

[5] The trial judge gave full consideration to the fact that the appellant had no record and that there was no serious threat of his re-offending. Given the gravity of this offence, in particular, the fact that the offence demonstrated a callous disregard for human life, we see no error on his part in rejecting a conditional sentence and in finding that in the circumstances of the case, the interest of general deterrence justified a custodial sentence. We do not agree that the sentence should be altered because of the fact that the conviction for Count 5 cannot stand.

[6] Accordingly, the conviction appeal is allowed in part by setting aside the conviction on Count 5 and ordering a new trial on that count. Leave to appeal sentence is granted, but the sentence appeal is dismissed.

“Robert J. Sharpe J.A.” “R.A. Blair J.A.” “Paul Rouleau J.A.”