



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Robinson, 2021 ONCA 282

DATE: 20210503

DOCKET: C67570

Huscroft, Nordheimer and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tracy Robinson

Appellant

Stephen Proudlove, for the appellant

Natalya Odorico, for the respondent

Heard: in writing

On appeal from the convictions entered by
    Justice Hugh K. OConnell of the Superior Court of Justice on July 19, 2019.

REASONS FOR DECISION

[1]

Mr. Robinson appeals his convictions for causing
    damage by fire to property and for arson with intent to defraud, after a judge
    alone trial.

[2]

The appellant was accused of setting fire to a
    trailer that he owned and that was located in a trailer park. The trailer was
    insured. The appellant owed the trailer park money for fees, which had been
    outstanding for some time. Some days before the fire, the trailer park had
    threatened to remove the trailer from the park and to send the appellants
    account to collection.

[3]

On the evening that the fire occurred, the
    appellant had attended at the trailer park and promised the person in charge
    that he would pay his outstanding account by the end of the month. The
    appellant then visited his trailer, including turning on the air conditioning. A
    short time after the appellant left the trailer park, smoke, and then fire, was
    seen coming from the windows of the trailer. The trailer was destroyed.

[4]

As part of the investigation, the appellant gave
    three statements to the police. He denied setting the fire. Two of his
    statements were put into evidence as part of the prosecutions case. The
    appellant did not give evidence at the trial.

[5]

The prosecutions case was entirely
    circumstantial. Central to it was a report done by an investigator from the
    office of the Ontario Fire Marshal (OFM). The investigator, who was accepted
    as an expert, opined that the fire was deliberately set, and that it started on
    the surface of the floor in the west bedroom. The defence also called an expert
    who was critical of the investigation done by the OFM investigator. The defence
    expert suggested that the fire might have been caused by an electrical problem
     a proposition that the prosecutions expert had expressly rejected.

[6]

The trial judge gave detailed reasons for his
    conclusion that the prosecution had proven the offences beyond a reasonable
    doubt. Importantly, the trial judge accepted the opinion of the OFM investigator
    as to the cause of the fire and explained why he did so. The trial judge also
    noted that the appellant had the opportunity, and a motive, to commit the
    offences.

[7]

The appellants challenges to the trial judges
    reasons are largely challenges to the trial judges factual and credibility
    findings. Absent the demonstration of a palpable and overriding error, those
    findings are entitled to deference from this court
: R. v. Gagnon
, 2006
    SCC 17, [2006] 1 S.C.R. 621, at para. 20. No palpable and overriding error has
    been shown. The trial judge was entitled to accept the opinion of the OFM
    investigator.

[8]

We also do not accept the appellants argument
    that the trial judge applied uneven scrutiny to the evidence, an argument, we
    note, on which it is very difficult to succeed:
R. v. Radcliffe
, 2017
    ONCA 176, 347 C.C.C. (3d) 3, at paras. 23-26, leave to appeal refused, [2017]
    S.C.C.A. No. 274.

[9]

We do agree that the trial judge erred in his
    enunciation of the test from
R. v. W.(D.)
,
[1991] 1 S.C.R. 742.
    Its application is not restricted to straight credibility cases, as suggested
    by the trial judge. However, reading his reasons as a whole, it is clear that
    the trial judge applied the test properly in considering the exculpatory
    evidence included in the appellants statements to the police.

[10]

Finally, we do not see any merit in the argument
    that the verdicts were unreasonable.

[11]

The appeal is dismissed.

Grant
    Huscroft J.A.

I.V.B.
    Nordheimer J.A.

A.
    Harvison Young J.A.


