Court of Appeal for Ontario

Date: 20220517 Docket: C66585

Before: van Rensburg and Roberts JJ.A. and Tzimas J. (ad hoc)

Between: Her Majesty the Queen, Respondent And: Luc Charron, Appellant

Counsel: Jean Claude Dubuisson, for the appellant Philippe G. Cowle, for the respondent

Heard: in writing

On appeal from the conviction entered by Justice Marlyse Dumel of the Ontario Court of Justice on November 7, 2018.

Tzimas J. (ad hoc):

Overview

[1] The appellant was convicted of arson to property for starting a fire inside the complainant’s Jeep Cherokee. The appellant was an acquaintance of the complainant. He referred the complainant to an autobody shop to get his Jeep refurbished. The complainant got into a dispute with the auto body shop because he was unhappy with the work. Shortly before 4:00 a.m. on December 28, 2016, the complainant’s Jeep was set on fire.

[2] The sole issue in dispute at trial was the identity of the person who set the fire. The global positioning system (“GPS”) in the appellant’s tow truck placed the appellant’s tow truck at the location of the fire at the time it was set. The appellant also showed up at the complainant’s home an hour and a half after the fire, even though the complainant never told the appellant where he lived.

[3] The appellant appeals the conviction on eight grounds. He submits that the trial judge erred in law by:

a) not providing in her reasons the evidence which led her to her decision; b) misapplying the circumstantial evidence before her to reach a guilty verdict; c) finding that the appellant was guilty when there was no direct or indirect evidence to tie the appellant to the arson; d) finding that the appellant was guilty when there was no forensic evidence to tie the appellant to the arson; e) presuming that the appellant set the fire in the vehicle in the absence of any evidence to that effect; f) failing to indicate what part of the evidence brought her to the conclusion that the appellant was guilty; g) giving too much weight to the circumstantial evidence to support her conviction; and h) failing to apply the principal elements that constitute the offence of arson.

[4] The eight grounds of appeal may be distilled into two complaints. Issues (b), (c), (d), (e), (g) and (h) go to the reasonableness of the conviction. Issues (a) and (f) call into question the sufficiency of the reasons for judgment.

[5] For the reasons that follow, I would dismiss the appeal.

Evidence at Trial

[6] The appellant and the complainant were acquaintances for about 18 months prior to the offence. They would typically run into each other at Tim Hortons and they would chat. They never discussed where they lived.

[7] About ten months prior to the fire incident, the complainant told the appellant that he wished to refurbish his Jeep Cherokee. The appellant recommended an auto body shop named Belko Auto and told the complainant to speak to the manager, “Mike”. The complainant took his Jeep to Belko. The refurbishment took eight months to complete. The complainant was not happy with the work, and he got into a dispute with Belko.

[8] On the morning of December 28, 2016, at around 4:00 a.m., the complainant, his wife and his son were awoken by the Jeep’s alarm. They went out to see what was going on and noticed a glow inside the Jeep. On closer look, they discovered that a small rear fixed window on the passenger side was smashed-in, and a small fire was burning on the floor between the seats. The complainant’s son put out the fire.

[9] In the hours just prior to the fire, fresh snow covered the ground. After the complainant and his family put out the fire, they observed two sets of footprints in the snow leading up to the Jeep. One set of footprints connected the Jeep to a point on the sidewalk 2-3 houses north of the complainant’s house. A second set of footprints connected the Jeep to a point on the sidewalk 2-3 houses south of the complainant’s house. At the extremities of the tracks, where the footprints stopped at the edge of the sidewalk, the footprints met tire tracks. The complainant’s son testified that the footprint tracks from both trails were the same.

[10] The fire trucks arrived around 4:30 a.m. The appellant was seen in his tow truck following behind the fire trucks. When the fire trucks stopped at the complainant’s house, the appellant kept driving. He returned, however, to the complainant’s driveway, around 5:00 a.m. In that moment, the complainant was still in his driveway speaking with a police officer. The appellant walked up to the complainant to ask what happened to the Jeep. The complainant testified that he found the question odd because the damage to the vehicle was not visible from the outside and therefore there was no reason to be concerned that anything was wrong with the Jeep. The complainant suggested to the appellant that Mike from Belko might have had something to do with the fire. The appellant responded that Mike would never do something like that. The appellant stayed for coffee and kept saying he was sorry about what happened to the Jeep.

[11] The appellant was a tow truck driver. It was common for him to bring his truck home after hours. His truck was equipped with a GPS that updated every minute and was accurate within 100 meters. The complainant lived at 992 Bathgate. The GPS revealed the truck’s whereabouts in the early hours of December 28, 2016 as follows:

• tow truck arrives at 1104 Bathgate at 3:43 a.m. and stays there for nine minutes;
• tow truck then drove north and stopped at 920 Bathgate for seven minutes;
• tow truck then drove back south and stopped at 970 Bathgate for three minutes;
• at 4:09 a.m. the tow truck resumed driving south and passed by the complainant’s house a second time before stopping at 996 Bathgate for five minutes;
• the tow truck then left the area and drove to a Tim Hortons where it waited for 46 minutes;
• at 5:10 a.m. the tow truck drove back to 992 Bathgate and stayed there for 36 minutes; and
• after leaving 992 Bathgate, the tow truck drove to Belko, where it remained for eight minutes.

[12] The appellant did not lead any evidence in his defence.

Trial Judge’s Reasons for Judgment

[13] The only issue at trial was the identity of the individual who set the fire. The trial judge considered the testimony from the various witnesses and found them to be frank, clear, precise, detailed, direct and uncontradicted.

[14] In her succinct review of the evidence, the trial judge found that the complainant and the appellant never discussed their private lives or where the complainant lived. She also found that the appellant arrived at the complainant’s residence shortly after the fire was discovered, even though neither the complainant nor his family members called the appellant for his assistance. The trial judge found that the appellant was in possession of the truck that morning and noted the information contained in the tow truck’s GPS report that recorded the truck’s whereabouts during the material time period, as described above. Finally, she found that the appellant had no reason to go to Belko after his visit with the complainant.

[15] Having regard for these key findings, the trial judge concluded that, unless the appellant was implicated in the fire, he would not have had any way of knowing about the fire and he would have had no reason to deny Mike’s involvement with the fire. On the evidence she accepted, the only inference available was that the appellant participated in the arson. The trial judge therefore found him guilty of the offence as charged.

Analysis

(1) Is the Appellant’s conviction reasonable?

[16] The appellant contends that his conviction was unreasonable because the trial judge misapplied the circumstantial evidence, there was an absence of direct or indirect evidence related to him, there was no forensic evidence, she presumed his guilt, she gave too much weight to the circumstantial evidence, and she failed to apply the elements which constitute the offence of arson. I disagree.

[17] An unreasonable verdict is one that a properly instructed judge could not reasonably have rendered. A verdict may also be unreasonable if the judge draws an inference or makes an essential finding of fact that is either (1) plainly contradicted by the evidence relied on to support it, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the judge. Appellate courts reviewing a verdict for reasonableness are permitted to undertake a limited weighing of the evidence with due regard to the limits of appellate disadvantage: see R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, para. 9 and R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, para. 21.

[18] When examining the reasonableness of a verdict on appeal, this Court may treat the appellant’s silence at trial as an indication that he could not provide an innocent explanation for his conduct: R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 33. His failure to offer an innocent explanation undermines the alternative inferences he now says were available on the evidence.

[19] In this case, the evidence against the appellant was entirely circumstantial. The trial judge would therefore have to be satisfied, beyond a reasonable doubt, that the appellant’s guilt was the only reasonable inference to be drawn from the evidence as a whole. Stated differently, the judge would have to consider whether the circumstantial evidence was reasonably capable of supporting any inference, other than guilt. If that were the case, the appellant would be entitled to an acquittal. Alternative inferences must be reasonable, not just possible: see R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 30, 35-38, 42 and 50.

[20] Finally, a reviewing court must show deference to the fact-finding exercise of the trial judge when applying the test for unreasonable verdicts. It is fundamentally for the trier of fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a reasonable doubt. It is for the trier of fact to draw the line that separates reasonable doubt from speculation. As long as the conviction is reasonable, it is entitled to deference: Villaroman, at paras. 55-56, 69, and 71.

[21] The trial judge took a holistic approach to the evidence and found that there was evidence of opportunity, motive, admissions against the appellant’s interest, post-offence conduct, and the unlikelihood of coincidence to conclude, beyond a reasonable doubt, that the appellant’s guilt was the only reasonable inference to be drawn. That evidence was uncontradicted and the resulting findings were compatible with the evidence heard.

[22] The trial judge was very aware of the need to satisfy herself beyond a reasonable doubt that the appellant’s guilt was the only reasonable inference to be drawn from the evidence as a whole. Key components to her conclusion were the findings that the appellant drove straight to the complainant’s house with no stops on the way just prior to the fire, he hovered around the complainant’s home around the time the fire was set, he then came back uninvited and asked the complainant about the damage inside the Jeep. Since the damage was only internal and could not be seen from the outside, the trial judge concluded that the only reason somebody would ask about the damage to the Jeep was if they were implicated in the incident. By extension, the only reasonable inference from the totality of the evidence was that the appellant participated in the setting of the fire.

[23] Insofar as the appellant raised the two sets of footprints in two different directions as a basis for arguing that they suggested the presence of another person, I note the evidence that the two sets of footprints were not distinct; they looked the same, permitting the inference that they were from the same person. The complainant’s son was cross-examined on this specific issue, but he stood his ground that the footprints in the tracks looked the same. Moreover, the two different directions in the tracks were consistent with the GPS evidence that placed the appellant’s truck south of the complainant’s house for several minutes, then north of the house for several minutes, and then again south for additional minutes.

[24] The trial judge did not make any findings about whether anyone else might also have been involved and on the evidence before her, she was not obliged to do so. I see nothing unreasonable in this, given that the evidence, in its totality did not support an inference that a second individual may have been present.

[25] I also accept the respondent’s submission that, even if there were a second person, they would be equally liable pursuant to s. 21(1) of the Criminal Code. Whether the appellant was alone or with someone else, the uncontroverted evidence was that he drove straight to the complainant’s home in the early morning hours, at precisely the time that the fire was started, and then came back to ask about the damage. The evidence of motive, opportunity, the unlikelihood of coincidence, the admissions, as reflected in the questions he asked of the complainant and his after-the-fact conduct would be just as cogent, whether the appellant was there alone or together with somebody else. For these reasons, I would not give effect to this ground of appeal. The appellant’s conviction was reasonable and should not be interfered with.

(2) Were the trial judge’s reasons sufficient?

[26] The appellant’s Notice of Appeal called into question the sufficiency of the trial judge’s reasons, although he did not make any express submissions relating to this ground in his factum. The respondent submits that the reasons were sufficient.

[27] The appellant bears the burden of showing that the reasons are not only deficient, but also that the deficiency precludes meaningful appellate review. The sufficiency of reasons is assessed using a functional and contextual approach. The judge’s reasons must be read as a whole and in the full context of how the trial unfolded. Context is critical. The content and the level of detail required for the judge’s reasons to perform their function will differ from case to case: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, paras. 24-26, 33 and 55, and R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, paras. 13, 15-17, 35, 37, 41 and 44.

[28] The foundation for the verdict must be intelligible. A logical connection has to exist between the verdict and the basis for that conclusion: R.E.M., at paras. 17, 35 and 41. If the evidence is contradictory or confusing in relation to a critical issue, the trial judge must recognize and deal with that. Similarly, if there are novel questions of law that must be resolved to decide the critical issues at trial, the trial judge must address them. The failure to reconcile every frailty in the evidence or to allude to every relevant principal of law does not render the judge’s reasons insufficient: Sheppard, at para. 46 and R.E.M., at paras. 55-56.

[29] In this instance, although the trial judge’s reasons were relatively brief, they were more than sufficient to explain the appellant’s conviction and permit meaningful appellate review. This was a single issue, two-day trial. The Crown’s evidence was not seriously challenged. There were no credibility issues to resolve. There was no evidence that was contradictory or confusing. There were no difficult or novel questions of law. Date and jurisdiction were admitted. The deliberate nature of the fire was admitted. The only live issue was the identity of the arsonist. The judge’s task was to decide whether the appellant’s guilt was the only reasonable inference from the totality of the evidence. She made clear findings of fact and enumerated them in her reasons. Her reasons are therefore sufficient.

Conclusion

[30] For these reasons, I would dismiss the appeal.

Released: May 17, 2022 “K.M.v.R.” “E. Ria Tzimas, J. (AD HOC)” “I agree. K. van Rensburg J.A.” “I agree. L.B. Roberts J.A.”