Court File and Parties

Court of Appeal for Ontario Date: 2021-05-03 Docket: C67570

Before: Huscroft, Nordheimer and Harvison Young JJ.A.

Between: Her Majesty the Queen, Respondent and Tracy Robinson, Appellant

Counsel: Stephen Proudlove, for the appellant Natalya Odorico, for the respondent

Heard: In writing

On appeal from the convictions entered by Justice Hugh K. O’Connell of the Superior Court of Justice on July 19, 2019.

Reasons for Decision

[1] Mr. Robinson appeals his convictions for causing damage by fire to property and for arson with intent to defraud, after a judge alone trial.

[2] The appellant was accused of setting fire to a trailer that he owned and that was located in a trailer park. The trailer was insured. The appellant owed the trailer park money for fees, which had been outstanding for some time. Some days before the fire, the trailer park had threatened to remove the trailer from the park and to send the appellant’s account to collection.

[3] On the evening that the fire occurred, the appellant had attended at the trailer park and promised the person in charge that he would pay his outstanding account by the end of the month. The appellant then visited his trailer, including turning on the air conditioning. A short time after the appellant left the trailer park, smoke, and then fire, was seen coming from the windows of the trailer. The trailer was destroyed.

[4] As part of the investigation, the appellant gave three statements to the police. He denied setting the fire. Two of his statements were put into evidence as part of the prosecution’s case. The appellant did not give evidence at the trial.

[5] The prosecution’s case was entirely circumstantial. Central to it was a report done by an investigator from the office of the Ontario Fire Marshal (“OFM”). The investigator, who was accepted as an expert, opined that the fire was deliberately set, and that it started on the surface of the floor in the west bedroom. The defence also called an expert who was critical of the investigation done by the OFM investigator. The defence expert suggested that the fire might have been caused by an electrical problem – a proposition that the prosecution’s expert had expressly rejected.

[6] The trial judge gave detailed reasons for his conclusion that the prosecution had proven the offences beyond a reasonable doubt. Importantly, the trial judge accepted the opinion of the OFM investigator as to the cause of the fire and explained why he did so. The trial judge also noted that the appellant had the opportunity, and a motive, to commit the offences.

[7] The appellant’s challenges to the trial judge’s reasons are largely challenges to the trial judge’s factual and credibility findings. Absent the demonstration of a palpable and overriding error, those findings are entitled to deference from this court: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20. No palpable and overriding error has been shown. The trial judge was entitled to accept the opinion of the OFM investigator.

[8] We also do not accept the appellant’s argument that the trial judge applied uneven scrutiny to the evidence, an argument, we note, on which it is very difficult to succeed: R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 3, at paras. 23-26, leave to appeal refused, [2017] S.C.C.A. No. 274.

[9] We do agree that the trial judge erred in his enunciation of the test from R. v. W.(D.), [1991] 1 S.C.R. 742. Its application is not restricted to “straight credibility” cases, as suggested by the trial judge. However, reading his reasons as a whole, it is clear that the trial judge applied the test properly in considering the exculpatory evidence included in the appellant’s statements to the police.

[10] Finally, we do not see any merit in the argument that the verdicts were unreasonable.

[11] The appeal is dismissed.

“Grant Huscroft J.A.”

“I.V.B. Nordheimer J.A.”

“A. Harvison Young J.A.”