R. v. Monteleone, [1987] 2 S.C.R. 154

Antonio Monteleone Appellant

v.

Her Majesty The Queen Respondent

indexed as: r. v. monteleone

File No.: 17170.

1986: October 31; 1987: September 17.

Present: Dickson C.J. and Estey, McIntyre, Lamer, Wilson, Le Dain and La Forest JJ.

on appeal from the court of appeal for ontario

Criminal law ‑‑ Directed verdict ‑‑ Circumstantial evidence ‑‑ Arson ‑‑ Motion for a directed verdict of acquittal ‑‑ Test to be applied by the trial judge.

Evidence ‑‑ Arson -- No direct evidence of the unlawful setting of the fire ‑‑ Whether the incendiary origin of the fire may be proved by circumstantial evidence.

The building where appellant's store was situated was destroyed by fire. The fire began in appellant's portion of the building and after an investigation he was charged with arson. At trial, the fire inspector admitted that the actual cause of the fire could not be determined, but he reached the conclusion that the fire was of incendiary origin because his investigation revealed no accidental cause. At the close of the Crown's case based entirely on circumstantial evidence, the defence made a motion for a directed verdict of acquittal. The trial judge reviewed the evidence extensively and found that the evidence in total and its cumulative effect gave rise to suspicion only, and could not justify the drawing of an inference of guilt. He then concluded that there "was no evidence upon which a jury properly charged and acting reasonably could find the accused guilty", and therefore directed the jury to bring in a verdict of not guilty. On appeal, the verdict of acquittal was set aside and a new trial ordered. The Court of Appeal found that there was "sufficient prima facie evidence to justify a dismissal of the motion for a directed verdict of acquittal" and that the trial judge usurped the function of the jury in weighing the evidence and drawing inferences from it. This appeal is to determine whether the case should have been left to the jury.

Held: The appeal should be dismissed.

A trial judge is not justified to direct a verdict of acquittal where there is before the court any admissible evidence which, if believed by a properly charged jury acting reasonably, would justify a conviction ‑‑ the Shephard test. This test is applicable to a case resting on direct as well as circumstantial evidence. It is not the function of the trial judge to weigh the evidence, to test its quality or reliability once a determination of its admissibility has been made. It is also not for the trial judge to draw inferences of fact from the evidence before him. These functions are for the trier of fact, the jury. In the present case, the appellant argued that there was no evidence as to the nature of the fire and therefore the commission of a crime. Although the expert evidence of the fire inspector did not afford evidence of an incendiary origin for the fire, the incendiary origin could be inferred from other inculpatory circumstances which could link the appellant to the fire. The evidence relating to appellant's motive, opportunity and the contradictions in his statement to the fire inspector met the Shephard test and the case should have been left to the jury. It was not open to the judge in a jury trial to consider the weight of the evidence. This is the function of the jury and it should be left to them.

Cases cited

Applied: United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067; referred to: Mezzo v. The Queen, 1986 CanLII 16 (SCC), [1986] 1 S.C.R. 802; R. v. Comba, 1938 CanLII 7 (SCC), [1938] S.C.R. 396; R. v. Kavanagh (1972), 1972 CanLII 489 (ON CA), 8 C.C.C. (2d) 296; R. v. Girvin (1911), 1911 CanLII 418 (AB SCEB), 3 Alta. L.R. 387 (S.C. en banc) aff'd (1911), 1911 CanLII 42 (SCC), 45 S.C.R. 167; R. v. Paul, 1975 CanLII 185 (SCC), [1977] 1 S.C.R. 181; R. v. Burton (1854), Dears. 282, 169 E.R. 728; R. v. Syms (1979), 1979 CanLII 2994 (ON CA), 47 C.C.C. (2d) 114; Hodge's Case (1838), 1838 CanLII 1 (FOREP), 2 Lewin 227, 168 E.R. 1136.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1970, c. C‑34, s. 618(2)(a) [rep. & subs. 1974‑75‑76, c. 105, s. 18(2)].

Authors Cited

Cross, Sir Rupert. Evidence, 5th ed. London: Butterworths, 1979.

McWilliams, Peter K. Canadian Criminal Evidence, 2nd ed. Aurora (Ontario): Canada Law Books, 1984.

Wills, William. An Essay on the Principles of Circumstantial Evidence, 6th ed. edited by Sir Alfred Wills. London: Butterworths, 1912.

APPEAL from a judgment of the Ontario Court of Appeal (1982), 1982 CanLII 2162 (ON CA), 38 O.R. (2d) 651, 137 D.L.R. (3d) 243, 67 C.C.C. (2d) 489, allowing the Crown's appeal from the accused's acquittal on a charge of arson and ordering a new trial. Appeal dismissed.

Edward L. Greenspan, Q.C., for the appellant.

Douglas C. Hunt, Q.C., for the respondent.

The judgment of the Court was delivered by

[1] McIntyre J. ‑‑ This case raises the question of the test to be applied by a trial judge when a motion is made by the defence for a directed verdict of acquittal after the close of the Crown's case and before the defence has elected whether or not to call evidence.

[2] The appellant was the proprietor of a men's clothing store in Sudbury. The shop was situated on the ground floor of a three storey building, the remainder of that floor was occupied by a jewellery store, and the upper floors of the building contained residential apartments. On January 12, 1980, the building was destroyed by a fire which began in the basement of the appellant's portion of the building.

[3] The officials of the Sudbury Fire Department conducted an investigation into the causes of the fire. On January 12, 1980, as part of the investigation, the appellant was questioned by Inspector McLean and he gave the following statement:

On January 12, 1980, I closed the store at 17:00 hours and I locked the cleaning staff in the store. The employees names were Laura Tycoor and her daughter. They have been cleaning the store for the past two or three years. When they finished cleaning the store, they called me to pick them up to drive them home. It was approximately 18:15 hours when I picked them up. I dropped Laura off on Kathleen Street and her daughter at the corner of Gilmor and Victoria. I then proceeded to my home on Tielstar stopping at the Pinto store for a newspaper.

When I picked up the girls I accompanied the girls downstairs to put away the vacuum cleaner and cleaning supplies. The three of us put on our coats and left by the front door locking it behind me. When I was in the store I could smell some smoke but I took it for granted it was the vacuum cleaner because Laura had called me previously when she was cleaning, complaining that the vacuum cleaner was heating up and smoking. I told her to unplug the vacuum cleaner and bring it downstairs.

When I returned at 18:15 I looked at the vacuum cleaner and it was so hot that I could not touch it. The vacuum cleaner was sitting very close to empty cardboard boxes. When I say close, I mean inches. When I walked into the store I could smell smoke and I could also see a very fine cloud of smoke. I could not tell whether the smoke was of burning electrical wires but I presumed it was the vacuum cleaner. It was at this time after placing the vacuum cleaner in the basement area that we left. After dropping the girls off I returned home arriving at approximately 19:00 hours. When I walked into the house my wife informed me about the fire and I returned to store.

I have $50,000.00 coverage on the stock, $25,000.00 on fixtures and $37,500.00 business interruption. The insurance is under my name and I am the sole owner of the store. I am indebted to the Toronto‑Dominion Bank for a business loan in the amount of approximately $50,000.00. I also owe one supplier Lou Myles of Toronto approximately $30,000.00. I have been the owner of the business for three years.

The inspector was of the view that the fire was set. He admitted that the actual cause of the fire could not be determined, but he reached the conclusion that the fire was of incendiary origin because his investigation revealed no accidental cause. No evidence of the employment of accelerants to cause or advance the fire was found, but firemen testified that in a fire causing such extensive damage there is often no indication of how it started. A number of persons were known to have had access to the appellant's shop. In addition to the front entrance, access could be gained into the basement through a door connecting the appellant's basement with the adjoining jewellery store. There was no evidence to show that the appellant was in extreme financial difficulty, although he had substantial financial obligations somewhat in excess of what he admitted in his statement. He was not shown to have been pressed by creditors, nor was it shown that he would profit in any substantial degree from the fire.

[4] The appellant was charged with setting the fire and was tried in April and May of 1981 in the Ontario District Court in Sudbury. At the close of the Crown's case and before the appellant had elected whether to call evidence, the trial judge on a defence motion directed a verdict of acquittal. With some apparent reluctance, the jury acquitted. An appeal by the Crown was allowed and this appeal comes as of right, in accordance with the provisions of s. 618(2)(a) of the Criminal Code.

[5] The trial judge observed that the case for the Crown rested entirely on circumstantial evidence. He referred to the following words of Duff C.J. in this Court in R. v. Comba, 1938 CanLII 7 (SCC), [1938] S.C.R. 396, at p. 397:

It is admitted by the Crown, as the fact is, that the verdict rests solely upon a basis of circumstantial evidence. In such cases, by the long settled rule of the common law, which is the rule of law in Canada, the jury, before finding a prisoner guilty upon such evidence, must be satisfied not only that the circumstances are consistent with a conclusion that the criminal act was committed by the accused, but also that the facts are such as to be inconsistent with any other rational conclusion than that the accused is the guilty person.

He laid stress upon the Chief Justice's further words, at pp. 397‑98:

We agree with the majority of the Court of Appeal, whose reasons for their judgment we find convincing and conclusive, that the learned trial judge ought, on the application made by counsel for the prisoner at the close of the evidence for the Crown, to have told the jury that, in view of the dubious nature of the evidence, it would be unsafe to find the prisoner guilty, and to have directed them to return a verdict of acquittal accordingly.

He went on to conclude that the test is no different whether the evidence is direct or circumstantial. In his view, the question to be answered was: is there some evidence from which a jury properly instructed could reasonably come to the conclusion that the accused had been proved guilty? He referred to the words of MacKay J.A., speaking for the majority in the Ontario Court of Appeal in R. v. Kavanagh (1972), 1972 CanLII 489 (ON CA), 8 C.C.C. (2d) 296, at p. 301:

It was held by this court in R. v. Mackey, 1971 CanLII 614 (ON CA), [1971] 3 O.R. 327, 4 C.C.C. (2d) 192, 14 C.R.N.S. 254, that on a motion for a directed verdict a trial Judge can only rule on whether there is any evidence which can properly be left to the jury. The question of reasonable doubt and the applicability of the rule in Hodge's Case does not arise at the close of the Crown's case where the accused has not elected against calling evidence. In the case of a jury trial I am of the opinion that it is immaterial whether the accused has or has not elected to call evidence. The function of the trial Judge on the motion is only to decide if there is any evidence to go to the jury. To hold otherwise would be to permit the Judge to usurp the function of the jury.

Adopting these words as the appropriate test, he reviewed the evidence extensively and apparently being unsatisfied with its force and effect, he concluded:

I conclude then that the evidence in total and its cumulative effect gives rise to suspicion only, and cannot justify the drawing of an inference of guilt. There is then, in my judgment, no evidence upon which a jury properly charged and acting reasonably could find the accused guilty, and I therefore will direct the jury to bring in a verdict of not guilty.

[6] The Crown's appeal was allowed (1982), 1982 CanLII 2162 (ON CA), 67 C.C.C. (2d) 489. It is evident that the Court of Appeal had no quarrel with the general statement of law relating to the test to be applied by a trial judge. Lacourcière J.A., writing for the court (Martin, Lacourcière and Goodman JJ.A.), expressed a difference with the trial judge, not on the law but on its application. He reviewed the evidence in some detail and reached the conclusion that there was "sufficient prima facie evidence to justify a dismissal of the motion for a directed verdict of acquittal". The weight to be given to such evidence and the inferences to be drawn from it were questions for the jury. He expressed the view, at p. 497, that:

. . . notwithstanding his express statement to the contrary, the trial judge attempted to weigh the evidence and to determine what inferences he himself, sitting without a jury, would draw. In doing so, he effectively usurped the function of the jury.

[7] There is only one question which arises in this appeal. Should the case have gone to the jury after the defence had either called evidence or declined to do so, or should the acquittal have been directed? At this point in these proceedings it is not for this Court, nor was it for the Court of Appeal, to reach a conclusion or even to consider the issue of guilt or innocence. Our sole concern is to inquire whether there was a case made by the Crown at trial which ought to have been left to the jury for that determination.

[8] The law on this subject is well settled. In United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, Ritchie J., speaking for the majority of the Court, said, at p. 1080:

I agree that the duty imposed upon a "justice" under s. 475(1) is the same as that which governs a trial judge sitting with a jury in deciding whether the evidence is "sufficient" to justify him in withdrawing the case from the jury and this is to be determined according to whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The "justice", in accordance with this principle, is, in my opinion, required to commit an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction. [Emphasis added.]

The matter came up for discussion in this Court more recently in Mezzo v. The Queen, 1986 CanLII 16 (SCC), [1986] 1 S.C.R. 802. In that case, the majority (Beetz, Estey, McIntyre, Chouinard and Le Dain JJ.) reaffirmed the authority of the judgment of Ritchie J. in Shephard and reviewed many of the authorities on which it is based. R. v. Comba, supra, relied on by the appellant and adopted by the trial judge in the case at bar, was discussed and distinguished from Mezzo in that it was a case where there was no evidence to go to the jury. In relying on the Shephard case, I am in agreement as to the law, both with the trial judge and the Court of Appeal. The Shephard test for the giving of a directed verdict applies to a case resting solely on circumstantial evidence as well as one based on direct evidence. The question of whether circumstantial evidence meets the requirement of the so‑called rule in Hodge's Case (1838), 1838 CanLII 1 (FOREP), 2 Lewin 227, 168 E.R. 1136, is for the jury to determine. This was settled in Mezzo, at pp. 842‑43, in these terms:

I am aware, of course, that in R. v. Knox, 1967 CanLII 692 (BC CA), [1968] 2 C.C.C. 348, and R. v. Sawrenko (1971), 1971 CanLII 1218 (YK CA), 4 C.C.C. (2d) 338, the British Columbia Court of Appeal and the Court of Appeal for the Yukon Territory held that, when faced with a motion for a directed verdict in a case dependent on circumstantial evidence, it was the duty of the trial judge to decide whether the evidence satisfied the rule in Hodge's Case. Only if it did, was the case to go to the jury for determination of guilt or innocence. In this sense a weighing process or an assessment of quality was contemplated on the part of the judge. Those cases, however, were effectively overruled in this Court in R. v. Paul, 1975 CanLII 185 (SCC), [1977] 1 S.C.R. 181, and Lavoie v. The Queen, 1977 CanLII 212 (SCC), [1977] 1 S.C.R. 193, and even in circumstantial cases the law now is that any determination as to compliance with the rule in Hodge's Case would be left to the jury. [Emphasis added.]

Where there is before the court any admissible evidence, whether direct or circumstantial, which, if believed by a properly charged jury acting reasonably, would justify a conviction, the trial judge is not justified in directing a verdict of acquittal. It is not the function of the trial judge to weigh the evidence, to test its quality or reliability once a determination of its admissibility has been made. It is not for the trial judge to draw inferences of fact from the evidence before him. These functions are for the trier of fact, the jury.

[9] Turning now to the case at bar, the appellant does not dispute the validity of the Shephard test. As I understand the principal argument advanced for the appellant, it is that there was no evidence as to the cause of the fire. It is asserted that the evidence of Fire Inspector McLean does not afford the basis for any finding that the fire was of an incendiary origin. The most that can be made of it is that the cause of the fire is unexplained. This proposition is vital to the appellant's argument and, in his view, is decisive. If there is no evidence of an incendiary origin for the fire, there is no evidence of the commission of a crime. Other matters may be shown in evidence, there may be evidence of opportunity or of motive, or of financial problems, or of hope of profit from the fire, and there may be other suspicious factors but, in the absence of evidence of the commission of a crime, they relate to no criminal conduct and are themselves no evidence of criminal conduct. It was said to be error on the part of the Court of Appeal to consider what could be suspicious circumstances in the absence of a finding of evidence of the commission of a crime.

[10] Lacourcière J.A. acknowledged that the expert evidence of the fire inspector alone did not afford evidence of the unlawful setting of a fire. He said: "taken by themselves, the findings of Inspector MacLean [sic] could at best support the conclusion that the origin of the fire was unexplained" (p. 492). However, later he said (at p. 493):

In most prosecutions for arson, the Crown must depend on circumstantial evidence. The circumstances must be sufficient to exclude every reasonable hypothesis other than a wilful and intentional burning in order to rebut the presumption that the burning was of accidental or natural origin. However, the facts and circumstances which tend to prove the incendiary origin of a fire are often inter‑woven, as in the present case, with other facts and circumstances which tend to connect the accused with the crime such as the presence of a motive, and the clear opportunity of the accused together with his subsequent incriminatory statements.

In this connection, the Crown had adduced evidence from which the jury could reasonably infer that the respondent had a motive to set fire to the building; the learned trial judge made no reference to motive in his ruling. It is conceded by Mr. Watt that the evidence of motive is not overwhelming. However, the circumstances of the respondent's indebtedness to the bank and to his suppliers, the fireman's evidence that there was not much stock visible when he entered the respondent's premises despite the purchase of large quantities of garments, the arrears of rent and the insurance coverage were sufficient to leave the question of motive for the consideration of the jury.

He went on to review some of the evidence which was court and concluded, as noted above, that the trial judge had attempted to weigh the evidence and in so doing had usurped the function of the jury.

[11] To reach a conclusion in this case, some consideration of the evidence is involved. The Crown in seeking to establish its case tendered evidence which for our purposes may be grouped under four headings:

1. The nature of the fire.

2. The motive of the appellant.

3. The opportunity on the part of the appellant.

4. Contradictions within the appellant's own statement.

Nature of the Fire

[12] As has already been mentioned, the appellant argued that there was no evidence as to the nature of the fire and, therefore, the commission of a crime. Evidence on other questions which would ordinarily be relevant has no evidentiary value and provides no evidence in the absence of proof of the incendiary nature of the fire. It is true, of course, that neither the trial judge nor the Court of Appeal considered that the evidence of the fire investigation, by itself, offered any evidence as to the nature of the fire. At best, it was considered by the Court of Appeal to leave the nature or cause of the fire unexplained. May then evidence of other matters ‑‑ motive, opportunity, financial difficulty and possibility of gain ‑‑ be considered as evidence going to prove the crime of arson?

[13] The position of the Court of Appeal is supported in the authorities. The courts have frequently recognized the fact that the corpus delicti, that is, the act which constitutes the crime, in this case the setting of the fire, may be proved by circumstantial evidence. This subject is dealt with at Chapter 17, and following chapters, of McWilliams, Canadian Criminal Evidence (2nd ed. 1984). At page 541, the author refers to the words of Wills, An Essay on the Principles of Circumstantial Evidence (6th ed. 1912), at p. 326:

It is clearly established law that it is not necessary that the corpus delicti should be proved by direct and positive evidence, and it would be most unreasonable to require such evidence. Crimes, and especially those of the worst kinds, are naturally committed at chosen times, and in darkness and secrecy; and human tribunals must act upon such indications as the circumstances of the case present . . . .

In R. v. Girvin (1911), 1911 CanLII 418 (AB SCEB), 3 Alta. L.R. 387 (S.C. en banc), Beck J. recognized the application of this principle to the crime of arson. He said, at p. 398:

[T]here is no proof here of corpus delicti, that is, that the cause of the fire was otherwise than accidental. Fires occurring accidentally are common, and any given fire must be assumed to have been accidental until evidence is adduced of intention . . . . No doubt, the evidence of the corpus delicti and the evidence of the guilt of an accused may often be more or less inseparable, and that is quite properly suggested as the case here.

Beck J. went on to hold in that case that there were no other inculpatory circumstances going far enough to raise more than suspicion. The Supreme Court of Canada (1911), 1911 CanLII 42 (SCC), 45 S.C.R. 167, dismissed the appeal, holding in the words of Fitzpatrick C.J., at p. 169, that:

. . . there is evidence quite sufficient to prove that the house was destroyed by a fire under circumstances which clearly pointed to incendiarism, and that the accused might fairly be presumed to have set the fire.

This principle has been applied more recently. In R. v. Paul, 1975 CanLII 185 (SCC), [1977] 1 S.C.R. 181, the accused was charged with possession of goods knowing them to have been obtained by the commission of theft. The Crown's case was that television sets had been shipped in a sealed rail car which arrived at its destination with the seal intact. The intended recipient never received the sets, they were found in the possession of the accused. On that statement of evidence, the accused moved for a directed verdict of acquittal on the ground that there was no evidence that the sets were stolen. The motion was granted by the trial judge and subsequently upheld in the Court of Appeal for Quebec, but on further appeal to this Court the directed verdict was overturned and a new trial directed. Ritchie J., for the majority of the Court, held that although there was no direct evidence that the goods were stolen the fact that they were found in the accused's possession would leave it open to the jury to find that they were indeed stolen and that the accused was aware of that fact, thus the trial judge should not have granted the motion for a directed verdict. Cross, in Evidence (5th ed. 1979) cites, at p. 56, R. v. Burton (1854), Dears 282, 169 E.R. 728, a case in which the accused was seen to come out of a warehouse with a quantity of pepper. As there was a great deal of pepper stored inside the warehouse, it could not be proven that any had been taken. In convicting the accused, however, Maule J. said, at p. 284:

If a man go into the London Docks sober, without means of getting drunk, and comes out of one of the cellars very drunk wherein are a million gallons of wine, I think that would be reasonable evidence that he had stolen some of the wine in that cellar though you could not prove that any wine was stolen or any wine was missed.

I am therefore of the opinion that the Court of Appeal was correct in holding that the incendiary origin of the fire could be inferred from other inculpatory circumstances which could link the accused to the fire.

Motive

[14] In view of the fact that there must be a new trial, I do not wish to comment extensively on the details of the evidence and possibly embarrass the trial judge. There was, however, evidence of the removal of a valuable antique desk by the appellant from his business premises to his home some two days before the fire. There was evidence of a substantial indebtedness to a wholesale supplier of goods. There was evidence of some difficulties with the retail sales tax branch regarding tax owing in respect of the business operation and a substantial assessment had been made upon the business for payment of arrears. There was evidence of a substantial indebtedness to the bank and a bank overdraft. There was, as well, evidence of the appellant's indebtedness arising in connection with the purchase of a home in association with his sister which involves substantial liability on two mortgages. There was evidence of difficulties he had encountered in dealing with his insurance claim involving varying claims and statements. This evidence was such that it should have been left to the jury on the issue of motive.

Opportunity

[15] There was evidence of opportunity on the part of the appellant to set the fire. It would be for the jury to decide whether or not it was exclusive opportunity. However, since there is evidence of other inculpatory matters, evidence of any opportunity, as opposed to exclusive opportunity, should go to the jury: see R. v. Syms (1979), 1979 CanLII 2994 (ON CA), 47 C.C.C. (2d) 114 (Ont. C.A.)

Appellant's Statement

[16] The appellant's statement given to the fire inspector was contradicted in certain particulars by the evidence of the cleaning staff. The contradictions themselves afford some evidence, the significance of which would require the consideration of the jury.

[17] In conclusion, I do not suggest that the inculpatory evidence is conclusive or even persuasive. That is not the function of an appellate court. The resolution of that question is for the jury upon proper instructions on the law after having heard the evidence. I have made only slight reference to the inculpatory evidence, but I would note that at trial it was strongly challenged on many points. From cross‑examination of principal creditors it appeared that financial obligations of the appellant were not unusual, considering all circumstances and the nature of the business. No creditor expressed any fear as to its security prior to the fire, and the appellant was not being pressed by his creditors. This evidence might very well influence a jury to discount the inculpatory evidence and find in favour of the appellant. This they would do, however, in the exercise of the function imposed upon them by law as the true finders of fact. It is not open to a judge in a jury trial to consider the weight of the evidence. This is the function of the jury and it should be left to them. I am of the view that there was evidence before the trial judge which met the test propounded by Ritchie J. in United States of America v. Shephard, supra. I am in substantial agreement with the reasons for judgment of Lacourcière J.A. for the Ontario Court of Appeal and I would dismiss the appeal and confirm the order for a new trial.

Appeal dismissed.

Solicitors for the appellant: Greenspan, Rosenberg, Toronto.

Solicitor for the respondent: The Attorney General for Ontario, Toronto.