



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Van-Luyk, 2019 ONCA 887

DATE: 20191108

DOCKET: C66083

Watt, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

William Van-Luyk

Appellant

William Gilmour, for the appellant

Charmaine Wong, for the respondent

Heard: November 5, 2019

On appeal
    from the conviction entered on July 31, 2018 by Justice Iona M. Jaffe of the Ontario
    Court of Justice, with reasons reported at 2018 ONCJ 528.

REASONS FOR DECISION

[1]

The appellant was convicted of arson causing
    damage to property and mischief endangering life, arising out of two incidents
    involving damage to a car belonging to the mother of his former girlfriend.  He
    was acquitted of a charge of mischief involving a third incident, in which one
    of the tires on the mothers car was slashed.

[2]

On February 7, 2017, the mothers car was set on
    fire and destroyed. On March 7, 2017, a new car that the mother had purchased was
    doused in gasoline, and an attempt was made to set it on fire. On both of these
    occasions, the damage occurred while the car was parked in the driveway of the
    mothers house, where the appellants former girlfriend lives.

[3]

The appellant argues that the trial judge erred
    in admitting and relying on similar fact evidence and erred in identifying the
    appellant as the perpetrator from security video footage.

[4]

We dismissed the appeal without calling on the
    respondent. These are the reasons for our decision.

The March 7th mischief charge

[5]

The trial judge dealt first with the
March 7, 2017
mischief charge.

[6]

The sole issue at trial was the identification
    of the perpetrator. Who doused the car with gasoline and attempted to set it
    alight?

[7]

The appellant concedes that he was videotaped
    filling a gasoline container at approximately 1:40 a.m. on March 7, 2017, at a
    Petro-Canada station approximately 1.7 kilometres from the mothers home. At
    approximately 2:00 a.m., a surveillance camera at the mothers home captured
    someone emptying the contents of a gasoline container onto her car while a
    second person looked on. The trial judge found that the person emptying the
    container was the appellant.

[8]

The trial judge made this finding after viewing
    the home video evidence multiple times and comparing it with higher quality
    video of the appellant from the gas station. She acknowledged some differences
    between the appearance of the appellant in the videos, including the fact that he
    appeared to be wearing a lighter coloured sweater in the home video. However, the
    trial judge considered that any weakness in the evidence as a result of the
    sweater was compensated by similarities in the pants worn by the appellant and
    the person seen dousing the car  both were somewhat baggy with white stitching
    on the back pockets. This, combined with other circumstantial evidence of
    identity, convinced the trial judge that the appellant was the person caught by
    the surveillance video at the mothers home.

[9]

Having reviewed the videos at the appellants
    request, we see no basis to interfere with the trial judges identification of
    the appellant. It was a finding open to the trial judge and is entitled to
    deference.

[10]

The trial judge made no error in concluding the
    mischief charge was proven beyond a reasonable doubt. Nor is there any basis to
    interfere with her conclusion, conceded at trial, that the mischief caused
    actual danger to life.

The February 7th arson charge

[11]

The conviction on the February 7, 2017 charge
    was based in large part on the trial judges decision on the Crowns similar
    fact application.

[12]

The appellant submits that the trial judge erred
    in concluding that the February 7 and March 7, 2017 offences were likely
    committed by the same person, pointing out that different accelerants and
    different igniters were used on each occasion.

[13]

There is no merit to this submission.

[14]

The trial judge carefully considered the many similarities
    between the two offences. She acknowledged the relevant differences, including
    the use of different accelerants and different igniters, but these differences were
    minor in the context of the striking similarities she found. Both incidents
    occurred on the seventh day of successive months. Both incidents occurred in
    the middle of the night. In both cases, cars belonging to the mother of the
    appellants former girlfriend were doused with accelerant. In one case, the
    mothers car was set on fire, and in the other an attempt was made to set it on
    fire. Both incidents occurred while the cars were parked in the driveway of the
    mothers home.

[15]

The trial judges conclusion that the two
    offences were likely committed by the same person is amply supported by the
    record and is entitled to deference.  The appellant has not established any
    basis that would allow this court to interfere with it.

[16]

The trial judges conclusion that the appellant
    was guilty of the February 7, 2017 arson charge was not based solely on the
    similar fact evidence. The trial judge was satisfied that the appellant
    committed the March 7, 2017 offence, and the similar fact evidence satisfied
    her that whoever committed that offence also committed the February 7, 2017
    offence. There was also evidence of motive  albeit evidence she acknowledged
    was not weighty. The trial judge made no errors in concluding that the charge
    had been proven beyond a reasonable doubt.

Conclusion

[17]

The appeal is dismissed.

[18]

The appellant did not seek leave to appeal
    sentence. However, the Crown does not oppose granting leave in order to address
    the victim fine surcharge. Accordingly, we grant leave to appeal and vary the
    sentence to eliminate the surcharge. The sentence is in all other respects affirmed.

David Watt
    J.A.

Grant Huscroft
    J.A.

Gary Trotter
    J.A.


