Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20221121 DOCKET: C68075

van Rensburg, Roberts and Sossin JJ.A.

BETWEEN

His Majesty the King Respondent

and

Mitchell O’Hanley Appellant

Counsel: Jeffery Couse, for the appellant Samuel Greene, for the respondent

Heard: November 10, 2022

On appeal from the conviction entered by Justice George W. King of the Superior Court of Justice on June 27, 2019, with reasons reported at 2019 ONSC 1856.

Reasons for Decision

[1] The appellant was convicted of dangerous driving and arson. He appeals the arson conviction.

[2] The appellant and Lindsey Root started a relationship in or around January 2016. At the time, Ms. Root still occasionally lived with her ex-fiancé, John Covelli. Ms. Root entered a lease to rent a house on her own as of May 1, 2016, near Windsor, Ontario.

[3] On April 30, 2016, the appellant and Mr. Covelli met at Ms. Root’s new residence and had a verbal confrontation. Afterwards, Mr. Covelli drove Ms. Root back to his house. On the way there, the two saw the appellant driving in a black BMW on the E.C. Row Expressway. He began driving aggressively by speeding, doing multiple U-turns, and briefly colliding with Mr. Covelli’s vehicle.

[4] Ms. Root and Mr. Covelli went to the police to report the incident. While they were at the station, multiple neighbours saw the appellant return to Ms. Root’s new residence. A fire was noticed shortly thereafter.

[5] The appellant was arrested that night and the police found a mallet and lighters in his vehicle. At trial, an expert witness concluded that the fire was intentionally set and dismissed the defence theory that a cigarette accidentally caused the fire.

Decision Below

[6] The trial judge found the appellant guilty of dangerous driving.

[7] First, based on the evidence from four independent witnesses, the appellant was driving on the E.C. Row Expressway at approximately 7:20 p.m. to 7:30 p.m. on April 30, 2016. Second, the appellant operated his vehicle in a dangerous manner. The trial judge accepted the eyewitness evidence of various dangerous actions, including the high rate of speed, the U-turns, and travelling in the opposite direction of traffic. Third, the appellant’s driving was a marked departure from what a reasonable, prudent driver would do in the same circumstances. The trial judge concluded that the dangerous driving was intentional and not momentary, having occurred following a domestic dispute and over several minutes and several kilometres.

[8] The trial judge also found the appellant guilty of arson causing property damage. The Crown needed to establish, in the absence of direct evidence, that: (i) the appellant caused damage to property by fire, (ii) the appellant caused damage intentionally, and (iii) the appellant was not the only person that owned the property. The third requirement was not in dispute because the appellant had no ownership interest in the residence.

[9] On the issue of intention, the trial judge accepted the expert evidence of Michael Ross, an investigator from the Office of the Fire Marshall, that an open flame caused the fire. He found Mr. Ross’ testimony that a lit cigarette could not generate a flame on a couch covered with synthetic material was “likely dispositive” of the defence hypothesis. He also highlighted Mr. Ross’ conclusion that, if a cigarette was the source of the fire, it would have been noticed long before 8:29 p.m. Even if Ms. Root’s estimation that the house was empty at 5:30 p.m. was inaccurate, the house was clearly empty before 7:00 p.m. Accordingly, on the tightest timeline, a cigarette would have caused a fire earlier and have been noticed by the neighbours.

[10] After dismissing this alternative theory, the trial judge concluded that the appellant was the individual who intentionally started the fire. His conclusion was supported by: (i) the overwhelming evidence, including from multiple independent witnesses, linking the appellant to the black BMW, and (ii) the fact that the appellant was the only person in the area with the exclusive opportunity and motive to set the fire.

[11] The appellant was sentenced to 15 months for the arson, as well as a $1,750 fine and 30-day licence suspension for dangerous driving.

Issues

[12] The appellant raised two issues in his factum, but advised at the outset of the oral hearing that he would be pursuing only one ground of appeal relating to the conviction for arson. The appellant argues that the trial judge misapprehended the expert evidence relating to the cause of the fire, specifically in relying on this evidence to exclude the possibility that the fire was caused by a cigarette.

Analysis

[13] To determine whether a misapprehension of evidence caused a miscarriage of justice requires appellate courts to assess the nature and extent of the error and its significance to the verdict. This is a stringent standard, met only where the misapprehension could have affected the outcome: R. v. Smith, 2021 SCC 16, 456 D.L.R. (4th) 549, at para. 2.

[14] Mr. Ross testified that fire patterns indicated the fire began in the living room of the residence at its north end, specifically on the sofa. He considered two hypotheses for the ignition source: (1) cigarettes, and (2) an intentionally-set fire. Mr. Ross further testified that he rejected the possibility of a cigarette fire for several reasons, including Ms. Root’s statement that she did not smoke indoors; the synthetic, cigarette-resistant fabric of the couch; the absence of a cigarette filter at the scene; and the timing of when the fire was detected by neighbours.

[15] The appellant argues that the trial judge misapprehended the expert opinion in three ways. First, he failed to give proper effect to evidence about the surrounding materials near the couch that contradicted Mr. Ross’ analysis. Second, he failed to give effect to his own factual findings about the timing of events and Mr. Ross’ evidence about smouldering fires. Third, he speculated about when witnesses would have been able to see the fire.

[16] We reject these arguments.

[17] There is no dispute that the fire originated with the couch in the home. The cigarette hypothesis was based on a series of speculative suppositions, including that Ms. Root did in fact smoke indoors notwithstanding her denial; that a cigarette smouldered for over an hour in a blanket or pillow on the couch without being detected; and that the hoses used to put out the fire displaced the cigarette filter beyond detection.

[18] The trial judge was entitled to accept some, none, or all of the expert evidence and to rely on it in concluding he had no reasonable doubt that the fire was intentionally set by the appellant. The appellate process is not an opportunity for this court to reweigh evidence that was carefully considered by the trial judge: R. v. Fournel, 2014 ONCA 305, 319 O.A.C. 42, at para. 48.

[19] The trial judge referred to the expert evidence of Mr. Ross as “likely dispositive” of the cigarette hypothesis, but nonetheless continued on to consider whether the timeline of events was consistent with the theory. This analysis was merely an additional reason for rejecting the cigarette hypothesis. In any event, the trial judge’s conclusion that a fire caused by a smouldering cigarette left by Ms. Root would have generated sufficient smoke to be detected, at least by the landlord's spouse, prior to when the fire actually was discovered, was available on the evidence.

[20] There is no basis to interfere with the trial judge’s treatment of the expert evidence in convicting the appellant of arson.

Disposition

[21] For these reasons, the appeal is dismissed.

“K. van Rensburg J.A.”

“L.B. Roberts J.A.”

“L. Sossin J.A.”