



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


R. 
          v. Holmes,







2007 
          BCCA 28



Date: 20070110





Docket: CA033715

Between:

Regina

Respondent



And

Ivan 
    Holmes, aka Ivan Howard Holmes

Appellant








Before:


The 
          Honourable Madam Justice Ryan




The 
          Honourable Madam Justice Newbury




The 
          Honourable Mr. Justice Hall



Oral Reasons for Judgment




D. 
          Kripp


Counsel for the Appellant




J.. 
          Duncan


Counsel for the (Crown) Respondent




Place 
          and Date:


Vancouver
,
British Columbia




10 January 2007



[1]

RYAN, J.A.
: The appellant, Ivan Holmes, was convicted 
    on 14 October 2005 in Provincial Court in Merritt of one count of recklessly 
    causing damage by fire to a car he did not own in whole or in part contrary 
    to s. 434 of the
Criminal Code
.

[2]

The appellant appeals his conviction on the basis that the verdict 
    is unreasonable or cannot be supported by the evidence.

[3]

On 22 April 2004 at 9:35 p.m. an officer from the Merritt detachment 
    of the RCMP responded to a call in a residential neighbourhood eight to 10 
    blocks from the police station.  The officer testified that on his arrival 
    he observed a motor vehicle parked in the driveway of a home.  There were 
    flames up the passenger side of the vehicle and the interior was filled with 
    smoke.  The officer used a fire extinguisher to douse most of the fire.  He 
    said that once the fire was put out he observed debris under the passenger 
    door that he took to be burning paper.

[4]

The owner of the vehicle, Ms. Hourie, testified that her estranged 
    common law husband, Ivan Holmes, had visited her between 9:00 and 9:30 on 
    the evening in question.  Mr. Holmes was intoxicated and wanted to see his 
    daughter.  Ms. Hourie asked him to leave.  The two argued.  Mr. Holmes left 
    but soon returned.  Ms. Hourie testified that Mr. Holmes told her he wanted 
    to stay at her place because he said he had nowhere to go.  She refused.  
    The argument escalated to the point that Mr. Holmes, in Ms. Houries words, 
    kicked off a baby gate that was on the porch and began to throw things.  
    Ms. Hourie said that she went back into the house and told her mother that 
    they might have to call the police.

[5]

Ms. Hourie said that her mother and her son went to the windows to 
    make sure that Mr. Holmes left.  Ms. Hourie went to the front window.  She 
    said that her son who had been at the upstairs window said that he smelled 
    smoke.  Ms. Hourie moved to another window, pulled the curtain aside and saw 
    flames coming from her car parked in the driveway.  She then took her family, 
    ran across the street and called the fire department.

[6]

Ms. Hourie said that when she ran across the street she saw Mr. Coutlee, 
    a neighbour, walking along the street.

[7]

Mr. Courtlee testified that he was returning from the bingo hall that 
    night when he saw Mr. Holmes about a block from his place.  As Mr. Coutlee 
    approached his home he saw Ms. Hourie and her family running across the street.  
    He said that Ms. Hourie told him there was a fire.  He said he tried to put 
    it out with an extinguisher but it was beyond control.

[8]

The appellant did not testify.

[9]

The trial judge concluded that the only inference he could draw was 
    that Mr. Holmes set the fire.

[10]

The appellant says that the verdict is unreasonable.  The appellant 
    says that there was insufficient evidence of damage to the vehicle, insufficient 
    evidence that the fire was deliberately started, and insufficient evidence 
    of identity to convict him.

[11]

As for the first point, both the police officer and Mr. Coutlee testified 
    as to the extent of the fire.  Damage can be reasonably be inferred from that 
    fact.

[12]

The case against Mr. Holmes was circumstantial.  He had motive and 
    opportunity to set the fire.  In
R. v. Yebes
, [1987] 2 S.C.R. 
    168 the Supreme Court of Canada noted that the Crown is not required to prove 
    exclusive opportunity where evidence of opportunity is accompanied by other 
    evidence.  In the case at bar the other evidence consisted of motive and temporal 
    proximity.  The fire was observed on the heels of the appellants angry departure.  
    The trial judge examined whether someone else might have started the fire.  
    He noted that Ms. Hourie had no problems with any of her neighbours and that 
    no one else was observed in the neighbourhood that night.  His rejection of 
    other reasonable inferences was itself not unreasonable.

[13]

I note the appellant did not testify.  In accordance with
R. 
    v. Noble
, this Court is entitled to take this into account in determining 
    whether the verdict is unreasonable.  In reweighing the evidence to the extent 
    permitted by the principles enunciated in
R. v. Biniaris
, [2000] 
    1 S.C.R. 381, I am of the view the evidence is capable of supporting the incendiary 
    origin of the fire and the identity of the appellant as the person who started 
    it.  In my view, the trial judge was entitled to reach a conclusion of guilt 
    on the evidence before him.

[14]

I would dismiss the appeal.

[15]

NEWBURY, J.A.
: I agree.

[16]

HALL, J.A.
: I agree.

[17]

RYAN, J.A
.: The appeal is dismissed.

The Honourable Madam Justice Ryan


