Court of Appeal for Ontario

Date: 2019-11-08 Docket: C66083

Judges: Watt, Huscroft and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

William Van-Luyk Appellant

Counsel

William Gilmour, for the appellant

Charmaine Wong, for the respondent

Heard: November 5, 2019

On appeal from the conviction entered on July 31, 2018 by Justice Iona M. Jaffe of the Ontario Court of Justice, with reasons reported at 2018 ONCJ 528.

Reasons for Decision

Introduction

[1] The appellant was convicted of arson causing damage to property and mischief endangering life, arising out of two incidents involving damage to a car belonging to the mother of his former girlfriend. He was acquitted of a charge of mischief involving a third incident, in which one of the tires on the mother's car was slashed.

[2] On February 7, 2017, the mother's car was set on fire and destroyed. On March 7, 2017, a new car that the mother had purchased was doused in gasoline, and an attempt was made to set it on fire. On both of these occasions, the damage occurred while the car was parked in the driveway of the mother's house, where the appellant's former girlfriend lives.

[3] The appellant argues that the trial judge erred in admitting and relying on similar fact evidence and erred in identifying the appellant as the perpetrator from security video footage.

[4] We dismissed the appeal without calling on the respondent. These are the reasons for our decision.

The March 7th Mischief Charge

[5] The trial judge dealt first with the March 7, 2017 mischief charge.

[6] The sole issue at trial was the identification of the perpetrator. Who doused the car with gasoline and attempted to set it alight?

[7] The appellant concedes that he was videotaped filling a gasoline container at approximately 1:40 a.m. on March 7, 2017, at a Petro-Canada station approximately 1.7 kilometres from the mother's home. At approximately 2:00 a.m., a surveillance camera at the mother's home captured someone emptying the contents of a gasoline container onto her car while a second person looked on. The trial judge found that the person emptying the container was the appellant.

[8] The trial judge made this finding after viewing the home video evidence multiple times and comparing it with higher quality video of the appellant from the gas station. She acknowledged some differences between the appearance of the appellant in the videos, including the fact that he appeared to be wearing a lighter coloured sweater in the home video. However, the trial judge considered that any weakness in the evidence as a result of the sweater was compensated by similarities in the pants worn by the appellant and the person seen dousing the car — both were somewhat baggy with white stitching on the back pockets. This, combined with other circumstantial evidence of identity, convinced the trial judge that the appellant was the person caught by the surveillance video at the mother's home.

[9] Having reviewed the videos at the appellant's request, we see no basis to interfere with the trial judge's identification of the appellant. It was a finding open to the trial judge and is entitled to deference.

[10] The trial judge made no error in concluding the mischief charge was proven beyond a reasonable doubt. Nor is there any basis to interfere with her conclusion, conceded at trial, that the mischief caused actual danger to life.

The February 7th Arson Charge

[11] The conviction on the February 7, 2017 charge was based in large part on the trial judge's decision on the Crown's similar fact application.

[12] The appellant submits that the trial judge erred in concluding that the February 7 and March 7, 2017 offences were likely committed by the same person, pointing out that different accelerants and different igniters were used on each occasion.

[13] There is no merit to this submission.

[14] The trial judge carefully considered the many similarities between the two offences. She acknowledged the relevant differences, including the use of different accelerants and different igniters, but these differences were minor in the context of the striking similarities she found. Both incidents occurred on the seventh day of successive months. Both incidents occurred in the middle of the night. In both cases, cars belonging to the mother of the appellant's former girlfriend were doused with accelerant. In one case, the mother's car was set on fire, and in the other an attempt was made to set it on fire. Both incidents occurred while the cars were parked in the driveway of the mother's home.

[15] The trial judge's conclusion that the two offences were likely committed by the same person is amply supported by the record and is entitled to deference. The appellant has not established any basis that would allow this court to interfere with it.

[16] The trial judge's conclusion that the appellant was guilty of the February 7, 2017 arson charge was not based solely on the similar fact evidence. The trial judge was satisfied that the appellant committed the March 7, 2017 offence, and the similar fact evidence satisfied her that whoever committed that offence also committed the February 7, 2017 offence. There was also evidence of motive — albeit evidence she acknowledged was not weighty. The trial judge made no errors in concluding that the charge had been proven beyond a reasonable doubt.

Conclusion

[17] The appeal is dismissed.

[18] The appellant did not seek leave to appeal sentence. However, the Crown does not oppose granting leave in order to address the victim fine surcharge. Accordingly, we grant leave to appeal and vary the sentence to eliminate the surcharge. The sentence is in all other respects affirmed.

"David Watt J.A."

"Grant Huscroft J.A."

"Gary Trotter J.A."