COURT OF APPEAL FOR ONTARIO

DATE: 20230213 DOCKET: C68303

Lauwers, Trotter and George JJ.A.

BETWEEN

His Majesty the King Respondent

and

John Jackman Appellant

Counsel: Geoff Haskell, for the appellant Linda Shin, for the respondent

Heard: February 3, 2023

On appeal from the conviction entered by Justice Robert A. Clark of the Superior Court of Justice, sitting with a jury, on June 6, 2018, and from the sentence imposed on December 27, 2018.

REASONS FOR DECISION

A. Introduction

[1] The appellant set fire to a mattress in a rooming house where he was temporarily staying. The fire spread and caused the death of another resident. The appellant was charged with second degree murder. He was found guilty of manslaughter and sentenced to life imprisonment.

[2] The main issues at trial were whether the fire was set deliberately and, if so, by whom. The Crown applied to admit similar act evidence that the appellant set a fire a number of years earlier, in similar circumstances and by the same method (i.e., the application of an open flame to a futon). The trial judge gave brief oral reasons for allowing the application. Although he said he would provide written reasons for his ruling, he did not do so.

[3] The appellant submits that the trial judge’s brief oral reasons were insufficient. He further contends that the decision to admit the similar act evidence was unreasonable. The appellant also appeals his life sentence. He submits that the sentence was manifestly unfit and informed by improper considerations.

[4] The following reasons explain why we dismiss the appeal against conviction and sentence.

B. Factual Background

[5] In May 2015, the appellant was at a rooming house at 1569 Dupont Street in Toronto. His partner, Lulieta Dalipi, rented a second-floor apartment in this building. The appellant was staying with her.

[6] Ms. Dalipi and the appellant were drug users. On the night of the fire, as the two of them consumed drugs, they got into an argument. Ms. Dalipi became angry and overturned a table on which there was an ashtray containing lit cigarettes. She left the rooming house in search of more drugs. When she returned, the building was ablaze and firefighters were on the scene. The victim, who lived upstairs, died of smoke inhalation.

[7] Ms. Dalipi initially tried to protect the appellant by providing false statements to the police. She was prosecuted for this conduct. When she testified at trial, Ms. Dalipi said the appellant started the fire. She said that she and the appellant argued frequently. The appellant had told her that she was in the relationship “for life”. She testified that he threatened arson “constantly” and once showed her media coverage of his prior conviction for arson, after asking her, “Do you want to see what I’m all about?”

[8] The origin of the fire was either on, or very close to, the mattress in Ms. Dalipi’s room. There was no evidence that an accelerant was used. A fire investigator testified that the fire was started with an open flame, or possibly from careless smoking. An ashtray with cigarette butts was found on the floor, but when Ms. Dalipi pushed over the table on which the ashtray was placed, she pushed it away from the mattress, not towards it, according to the investigator.

C. Similar Act Application

[9] The Crown applied to admit evidence of the appellant’s prior arson conviction. The application proceeded on an Agreed Statement of Fact, which contained the following facts.

[10] In June 2010, the appellant pled guilty to one count each of arson showing a disregard for human life (Criminal Code, R.S.C. 1985, c. C-46, s. 433) and assault (s. 265). The incident occurred on May 7, 2010. The appellant was a basement tenant in a multi-unit building. He was angry with the landlord for the way the building was being managed. The landlord lived on the third floor of the building. The appellant deliberately set fire to the futon in his room. He went up to the second floor and set clothes on fire near an apartment occupied by three people. The landlord was trapped in his apartment. One of the residents attempted to intervene and managed to extinguish the clothing that was on fire. The appellant assaulted that person. He said, “let it burn” and “this bitch is going down.” The fire investigator ruled that the fire was caused by the direct application of an open flame to both the futon and the clothing. Fortunately, nobody was injured by this fire, but lives were endangered.

[11] At the conclusion of argument, the trial judge allowed the Crown’s application. He commenced his ruling by saying:

I am going to give you my decision now. I will give reasons in the fullness of time and they will not be straight away by any means, because I am going to take some time to formulate those reasons, but the probative value of this far outweighs the prejudice. I appreciate, obviously, there is a potential for prejudice, but I do not see the nature of this crime, as alleged here, and the crime that this accused has pled guilty to in 2010, I do not see as particularly inflammatory vis-à-vis other types of similar act evidence. [Emphasis added.]

[12] In the course of his ruling, which continued over three pages of transcript, the trial judge made other comments about this evidence, including that he considered it “very compelling”. He noted that the crime of arson is “no more morally repugnant than all kinds of sexual evidence that juries are routinely presented with by way of similar act evidence and [he did] not see that this stands in any particular distinct stead from all kinds of other evidence that is admittedly prejudicial and can be misused.” He was satisfied that he could give a jury instruction that would prevent the jury from misusing the evidence.

[13] The similar arson conviction was presented to the jury by way of an Agreed Statement of Fact. The trial judge then gave a mid-trial instruction about the permissible and impermissible uses of this evidence. This warning was repeated at length in his final instructions.

[14] The trial judge did not deliver further reasons for this ruling. He has since retired. [1]

D. Analysis

[15] The trial judge should have delivered the written reasons he promised. This court has held on numerous occasions that the failure of a judge to give any reasons for a decision is an error of law: R. v. Sahdev, 2017 ONCA 900, 356 C.C.C. (3d) 137, at para. 33; R. v. Sliwka, 2017 ONCA 426, 138 O.R. (3d) 473, at para. 2; and R. v. Frost, 2010 ONCA 494, at para. 2.

[16] However, this is not a case where no reasons were given. While it would have been preferrable for the trial judge’s oral reasons to have been more extensive, when considered in the context of the record as a whole, the reasons permit us to meaningfully review the correctness of his decision to admit the similar act evidence: see Sliwka, at para. 35, citing R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 25. In any event, if we had to consider the matter afresh, we would reach the same conclusion as the trial judge.

[17] The trial judge was tasked with determining whether there was a link between the appellant and the similar act, and then balancing the probative value against the prejudicial effect of admitting the evidence of the prior arson: see R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908; R. v. Café, 2023 ONCA 10; and R. v. C. (Z.W.), 2021 ONCA 116, 155 O.R. (3d) 129.

[18] There could be no doubt about the link between the appellant and the previous arson; after all, he pled guilty. The real issue in this case came down to the balancing of probative value and prejudicial effect.

[19] On the record before him, it was open to the trial judge to find that the probative value of the evidence was “very compelling”; in other words, the probative value was very high. Along with the evidence of Ms. Dalipi, the similar act evidence demonstrated the improbability of a coincidental accidently-set fire.

[20] The Crown submits that, in terms of gauging the probative value of the evidence, the trial judge applied a higher standard than required in the circumstances. When the motion to admit the evidence of the prior arson was argued, the evidence was tendered as relevant to the identity of the person who set the fire, in the context of a third-party suspect theory of the defence. However, by the time the case went to the jury, the defence focused on the issue of whether the fire was set deliberately or by accident. Accordingly, the Crown submits that because the evidence was relevant to the issue of actus reus (rather than identity), it was not necessary for the trial judge to find that there was a striking similarity between the two arsons: R. v. Carpenter (1982), 1 C.C.C. (3d) 149 (Ont. C.A.), at para. 18 and R. v. Norris, 2020 ONCA 847, 398 C.C.C. (3d) 1, at paras. 9-27.

[21] We are not convinced that identity was completely off-the-table at the end of trial. In his final instructions, the trial judge told the jury that the previous arson could be used to determine both whether the fire was deliberately set and whether it was the appellant who set it. He did not err in doing so. In any event, the question of whether the fire was set intentionally (i.e., by deliberate application of an open flame) was really a proxy for identity. In the circumstances, had the fire had been set deliberately, it could only have been by the appellant. It was never suggested that Ms. Dalipi intentionally set the fire.

[22] From his brief reasons, it is apparent that the trial judge was well aware of the potential negative impact of this evidence on the jury. He specifically addressed this issue twice – in his mid-trial instruction and in his final instructions. There was no risk of reasoning prejudice in this case. As noted, the prior arson was put before the jury in an Agreed Statement of Fact, taking up very little time. There was a greater concern about moral prejudice, something the trial judge alluded to in his reasons. But he was confident that the risk of this type of prejudice could be addressed through proper jury instructions. Those instructions – both mid-trial and final – are error-free. They are not challenged on appeal.

[23] Considering the trial record as a whole, we are satisfied that the trial judge reached the right result in admitting the evidence, and properly instructed the jury on how to use it.

[24] We dismiss the appeal against conviction.

E. The Appeal Against Sentence

[25] The trial judge imposed the maximum punishment for the offence of manslaughter – life imprisonment (Criminal Code, s. 236(b)). In his factum, the appellant’s counsel submitted that the trial judge erred by relying on irrelevant factors as aggravating. He did not pursue these submissions in oral argument, preferring to focus on the unfitness of a life sentence in this case.

[26] We do not agree that the trial judge relied upon irrelevant factors in his sentencing reasons. Although another judge might have taken a different course, we cannot say that any of the factors addressed in his extensive reasons were unwarranted. The appellant’s moral blameworthiness was extremely high. His destructive behaviour occurred in the context of a dispute with his intimate partner; it was an act of aggression towards her that made her homeless once again, something the appellant knew that Ms. Dalipi dreaded.

[27] Although maximum sentences (including discretionary life sentences) are not imposed with great frequency in Canada, it was warranted in this case. The appellant was 50 years old at the time of sentencing. He had a prior criminal record that included roughly 80 previous convictions. He has been in and out of jail for most of his adult life. A psychological report tendered at the sentencing hearing described the appellant as being a moderate to high risk of re-offending, with little motivation to change.

[28] The overwhelming aggravating factor in this case was the appellant’s previous conviction for arson (and assault), for which he received a sentence of four years and one month. The appellant was held in custody until his statutory release date of April 3, 2013. The appellant committed his most recent arson roughly two years later. Whereas he endangered the life of his landlord and others on the previous occasion, this time he caused the untimely death of the victim.

[29] In all of the circumstances, we do not consider the sentence to be unfit. The appellant is eligible, or on the verge of being eligible, for parole. It will be for the Parole Board of Canada to determine when it is safe to release him back into the community.

[30] Leave to appeal sentence is granted, but the appeal is dismissed.

F. Conclusion

[31] The appeal against conviction and sentence is dismissed.

“P. Lauwers J.A.”

“Gary Trotter J.A.”

“J. George J.A.”

Footnote:

[1] A search of available records and inquiries made by counsel and, at the request of the panel, the court’s Executive Legal Officer, have produced no record of written reasons. It does not appear that written reasons were ever produced.