R. v. Van-Luyk, 2018 ONCJ 528 (CanLII)
| Date: | 2018-07-31 |
| File number: | 17-2979 Brampton |
| Citation: | R. v. Van-Luyk, 2018 ONCJ 528 (CanLII), <http://canlii.ca/t/htdqd>, retrieved on 2019-02-26 |
- Cited by 0 documents
ONTARIO COURT OF JUSTICE
CITATION: R. v. Van-Luyk, 2018 ONCJ 528
DATE: 2018 07 31
COURT FILE No.: 17-2979 Brampton
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
WILLIAM VAN-LUYK
Before Justice I. Jaffe
Heard on May, 28, 29 and 30, 2018
Reasons for Judgment released on July 31, 2018
P. Quilty................................................................................................. counsel for the Crown
M. Owoh......................................................... counsel for the accused William Van-Luyk
JAFFE J.:
[1] On December 26, 2016, as Ms. Nicole Nugent was leaving her home to go to work, she noticed her car tire was flat. It turned out to have been slashed. Less than a month and a half later on February 7, 2017, Ms. Nugent woke up in the middle of the night to find her car in flames. The fire had been deliberately set and her car was ruined. One month later, on March 7th, 2017, Ms. Nugent entered her new car in the early morning hours on her way to work when she detected a strong odour of gasoline. She checked the footage from her security camera and observed an individual pouring liquid from a gasoline jerry can onto the front hood of her car and attempt to ignite it.
[2] The Crown alleges that William Van-Luyk, the former boyfriend of Ms. Nugent’s daughter Destinee, was responsible for all three incidents involving her car. Mr. Van-Luyk is charged with one count of mischief relatingto the Boxing Day slashing of Ms. Nugent’s tires, one count of arson relating to the car fire on February 7th, 2017, and two counts of mischief relating to the March 7th attempt to ignite the car, one of which further alleges that in pouring accelerant on Ms. Nugent’s car, Mr. Van-Luyk endangered her life.
Summary of the Evidence
A Tire Slashing on December 26, 2016
[3] In December 2016, Ms. Nicole Nugent and her daughter Destinee resided in a townhouse located at 32 Middleton Way in Mississauga. Christmas night, Nicole and Destinee had dinner at a relative’s home and returned to their townhouse at approximately 11 p.m. The following morning, Nicole left her house around 7 a.m. with the intention of going to work and discovered her Chevrolet Avail had a flat tire. Nicole testified that her boyfriend attended that evening to fix the flat tire which she had assumed was caused by a nail. Once the flat tire was removed from the vehicle and upon closer examination, it was discovered that it had been slashed on its side. Nicole described the slash as being approximately 2-3 inches long. Nicole’s boyfriend purchased a new tire the following day to replace the ruined tire.
[4] Destinee, Nicole’s 20-year old daughter, testified that on December 30, 2016 she received a text message from her former boyfriend, the accused, William Van-Luyk Jan Parnaga The text message read as follows:
“How was ur Christmas…hope ur mom’s cars good. And happy new year hope ur more blessed this year with a job….”
[5] Destinee testified that she found this text message to be “strange” because the last message she had received from Mr. Van-Luyk was November 15th, and she had not spoken to Mr. Van-Luyk about her mother’s car. This text message prompted Destinee to file a police report.
[6] Destinee testified that she began dating Mr. Van-Luyk when they both worked at McDonald’s in 2013. During that time, the two would see each other in passing as they worked different shifts. That changed once the two started dating in 2015. Destinee testified that for the duration of their 8-month relationship, she and Mr. Van-Luyk saw each other almost on a daily basis. During their time together, Mr. Van-Luyk purchased a black Toyota Camry with bore the license plate number BYEH 314.
[7] Destinee and Mr. Van-Luyk broke up in March 2016. Destinee testified that it was not an easy break up and there was discord for the next two or three weeks. Destinee acknowledged in cross-examination that by August 2016, the bitterness between the two had ended. However, on November 13, 2016, Mr. Van-Luyk sent Destinee the following text message in which he asked if she could pay him back some money. The November 13th read as follows:
“JW is it possible yet to u know cuz I know u said u give it to me before”
[8] Destinee explained that during their relationship, they spent money on each other and that in November 2016, Mr. Van-Luyk began asking for reimbursement of $550 that he claimed she owed him. Destinee acknowledged in cross-examination that she told Mr. Van-Luyk that she would pay him back.
[9] Destinee did not respond to the text message, and Mr. Van-Luyk followed up with another text message the following day, on November 14, 2016 which read:
“no disrespect just thought full time amazon would be able to pay me back np”
[10] Destinee explained that she had been working at Amazon however, by the time Mr. Van-Luyk sent the text requests for repayment, she had lost her job. On November 15, 2016, Destinee’s boyfriend responded toMr. Van-Luyk’s latest text message as follows:
“Yo stop harassing my girl about money that you gave her. Yes she did say sh’ed pay you back but it’s not her priority. Don’t like being harassed every day”
[11] Mr. Van-Luyk responded the same day:
“Don’t tell me something then not expect me to follow up”
[12] The next time Destinee heard from Mr. Van-Luyk was on December 30, 2016 when by text message, he inquired about her mother’s car and wished her a happy New Year. Destinee explained in cross-examination that it was not the fact that Mr. Van-Luyk text messaged her on December 30th that surprised her, rather it was his reference to her mother’s car that took her by surprise and made her suspect he was responsible for the tire slashing.
A Car Fire on February 7, 2017
[13] Destinee testified that on February 7, 2017, at around 2 a.m., she was in her bedroom when she heard her dog barking at the front door. Destinee went downstairs to investigate and upon looking outside, she saw flames coming from the car in her driveway. Destinee woke up her mother, told her to get out of the house, and called 911. The emergency services arrived very shortly thereafter.
[14] Nicole Nugent’s memory of the night is similar. She recalled being woken up by her dog barking around 2:30 a.m. Shortly after, he daughter Destinee came into her room and told her that they have to leave the house. Nicole looked out the window and saw her Chevrolet Avail in flames. Nicole grabbed her dog and left the house. The fire department came and put out the fire, but by then, her car was ruined. Nicole estimated that her car had been parked about six steps from the front entrance of her home.
[15] John Sefton a fire prevention officer with the Brampton Fire and Emergency Services attended the scene at approximately 3:05 a.m. for the purpose of determining the origin and cause of the car fire. Mr. Sefton noted that the fire had been fully extinguished by the firefighters by the time he arrived. Mr. Sefton observed no apparent external causes for the fire, such as electrical hazards.
[16] Having determined there were no external causes of combustion, Mr. Sefton spoke with Ms. Nugent todetermine when she last used the vehicle and whether she had modified the vehicle in any way. He then obtained Ms. Nugent’s permission to inspect the vehicle.
[17] As per protocol, Mr. Sefton examined the least burned portion of the vehicle first and then worked his way towards the most damaged parts. Mr. Sefton noticed a lot of damage to the engine compartment, especially around the driver’s side of the motor. The fire had started to breach the firewall separating the engine compartment and the interior cabin of the car. There was not much damage to the passenger side of the motor. A can of lighter fluid sat on top of the vehicle together with the remnants of wooden matches. Pieces of the car had fallen to the ground, and hydro carbons (liquid fuel) which had the odour of lighter fluid, pooled beneath the vehicle. Mr. Sefton took numerous photos of the vehicle, some of which were entered as exhibits.
A Dousing of Gasoline on March 7th, 2017
[18] Following the destruction of her vehicle by fire, Nicole Nugent purchased a new car, a Ford Focus, which was parked on her driveway the night of March 6th, 2017. Nicole testified that that on March 7th at approximately 5 a.m., she exited her home to go to work. She immediately smelled the odour of gasoline. Nicole entered her new car and turned on the ignition. At this point, the odour of gasoline seemed even stronger.
[19] Nicole explained that she then decided to check the footage from her newly installed home security camera, which she could do on her cell phone while still sitting in her car. The footage captured someone pouring fluid from what appeared to be a gas can, over the front end of her car. According to the time stamp on the footage, the dousing of her car occurred around 2 a.m. Upon seeing the footage, Nicole turned off her car, and called 911. The video was played in court and entered as an exhibit. P.C. Campbell of the PRPS attended the address at 5:28 a.m. and noted an odour of gasoline and a cigarette butt near Nicole’s car.
[20] Destinee testified that on the evening of March 6th, a security camera was installed at her home. The following morning, her mother showed her video footage from the camera on her cell phone. Destinee testified that she recognized the person in the video as her boyfriend, Mr. Van-Luyk. Asked by the Crown how she recognized him, Destinee explained that she recognized his sweater, his demeanour and the way he ran.
[21] I have viewed the footage numerous times and observed what appears to be a male, wearing a hoodie with face covered, pouring fluid from a jerry can over the front of a car. Another individual can be seen pacing back and forth at the end of the driveway. At one point, it would appear that the person pouring the fluid attempts to throw something small on the windshield and the two individuals promptly run away.
[22] As part of the police investigation into this incident, P.C. White of the Peel Regional Police Service was tasked to canvass neighbourhood gas stations. P.C. White located video footage from a Petro-Can gas station located 9878 Dixie Road Brampton, which captured Mr. Van-Luyk filling up a jerry can at the gas pump. The time stamp on the video reflected a time of 1:09 a.m. however, by reference to his watch, the officer determined that the time stamp on the gas station’s video camera was 31 minutes behind. Accordingly, the correct time at which Mr. Van-Luyk was filling up the jerry can was 1:40 a.m. And in fact, the receipt for the gas purchase reflected a time of 1:41 a.m.
[23] The distance between the Nugent’s home and the Petro Can station is 1.7 kilometers.
Expert Evidence
[24] Though Mr. Sefton gave non-opinion evidence concerning his direct observations of Ms. Nugent’s burned vehicle, the Crown also seeks to have him declared an expert in the “investigation and causes of fires”.
Mr. Sefton’s Experience
[25] John Sefton has been a fire prevention officer and investigator with the Brampton Fire and Emergency Services for six years. Prior to that, Mr. Sefton worked as a fire prevention officer for a property management company. In 2015, Mr. Sefton obtained a certificate after successfully completing a five-day vehicle fire and arson investigation seminar with the International Association of Fire Investigation. With 64 vehicles burned over the course of the five days, Mr. Sefton learned about the causes and origins of vehicle fires, and how to read “fire signatures” on the cars. Mr. Sefton is now one of three vehicle fire inspectors with the Brampton Fire and Emergency Services.
[26] Over the course of his employment with Brampton Fire and Emergency Services, Mr. Sefton has investigated eight vehicle fires, five of which he investigated after earning his vehicle fire certificate. He has however, investigated the cause and origin of approximately 71 fires.
Proposed Areas of Expertise
[27] The Crown is seeking to have Mr. Sefton qualified to provide opinion evidence in answering the following four questions:
I. Whether the fire on March 7th was intentionally lit;
II. Whether there is potential of a fire to spread from a car to a house;
III. Whether a car covered in gasoline could ignite if someone turned on the engine and drove the car; and
IV. The percentage of intentionally lit vehicle fires in Brampton, relative to the total number of vehicle fires.
[28] During the admissibility voir dire, Mr. Sefton offered his opinion in answer to the first three questions. Specifically, Mr. Sefton testified that based on his observations at the scene and the elimination of external causes of combustion, he believed the March 7th fire was intentionally caused.
[29] In answering the second question, Mr. Sefton testified that car fires burn intensely and generate significant radiant heat which can trigger fires to nearby structures. It was Mr. Sefton’s opinion Ms. Nugent’s garage, which was approximately five feet away from the burned car, was “well within the area of risk” for the spread of fire.
[30] With respect to the third question, Mr. Sefton opined that gasoline poured onto the exterior of a car could pose a risk to someone getting into or driving the car. Mr. Sefton explained gasoline poured onto the exterior of a car could drip through the base of the windshield into the base of the motor and into the engine area, where there are a lot of flammable vapours. Mr. Sefton testified that he was unable to answer the fourth question.
The Arguments
[31] In terms of the relevance of the proposed expert evidence, the Crown argued that answers to the first two questions are relevant to the endangering life aspect of one of the March 7th mischief charges. An answer tothe third question is relevant to the actus reus of the March 7th offences, and the answer to the fourth question is relevant to Crown’s similar fact application.
[32] The Crown further argued that the four proposed questions seek information that is not within the knowledge of the average person and accordingly, the proposed expert evidence is necessary. Moreover, Mr. Sefton is a properly qualified expert, having gained special knowledge through his work with the fire services and through specialized training.
[33] On behalf of Mr. Van-Luyk, Mr. Owoh conceded that the March 7th fire was intentionally lit, and accordingly the proposed expert evidence is not necessary to resolve that first question. Mr. Owoh in fact submitted that based on Mr. Sefton’s non-expert evidence concerning his observations, the conclusion that the fire was deliberately ignited is inescapable.
[34] Similarly, with respect to the second area of proposed expert opinion, Mr. Owoh conceded that there is potential for a car fire to spread to a nearby house. Mr. Owoh’s position is similar with respect to the third area of proposed evidence, the dangers created when a car is doused with gasoline. Mr. Owoh invited me to find that if gas is poured into a car, it could seep into a hood and cause danger to someone. Mr. Owoh submitted I could take judicial notice of the fact that gasoline can cause a fire in those circumstances.
The Law
[35] In R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, the Supreme Court set out a four-part test for the admission of expert evidence. To gain admission, the proposed expert evidence must be relevant, necessary in assisting the trier of fact, not barred by any exclusionary rule, and given by a properly qualified expert. In R. v. Abbey, 2009 ONCA 624 (CanLII), 246 C.C.C. (3d) 301, leave to appeal refused, [2010] S.C.C.A. No. 125, Doherty J.A. introduced a two-step approach toconsidering the admissibility of expert evidence against the four Mohan criteria. Doherty J.A. did not alter the Mohan factors, rather, he suggested a logical order totheir application. The first step involves establishing the Mohan criteria on a threshold basis (i.e. relevance, necessity, absence of an exclusionary rule and a duly qualified expert). The second step engages the trial judge’s gatekeeping function of weighing the potential risks of the evidence against its potential benefits: Abbey, at para. 76; R. v. Shafia, 2016 ONCA 812 (CanLII), 341 C.C.C. (3d) 354, leave to appeal refused, [2017] S.C.C.A. No. 17, at para. 226.
[36] More recently in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 (CanLII), [2015] 2 S.C.R. 182, the Supreme Court confirmed that impartiality, independence and lack of bias are essential elements of a “properly qualified expert” and rather than merely affecting the weight of the expert’s evidence, they are preconditions to its admissibility.
Ruling
[37] Mr. Sefton testified that though he has never been qualified as an expert witness in court, he would be comfortable in giving opinion evidence regarding the cause of the fire, and a vehicle fire’s potential to spread. Mr. Sefton did however indicate that he would not be able to render an opinion concerning the percentage of vehicle fires in Brampton which were intentionally set.
[38] I will deal quickly with the fourth area of proposed expert evidence, namely the percentage of intentionally lit vehicle fires in Brampton. Mr. Sefton was unable tooffer an answer to this question and accordingly, I need not further determine the admissibility of his evidence on that topic.
[39] With respect to the remaining three areas of proposed evidence, while I am satisfied that the proposed evidence is relevant, and that Mr. Sefton would be qualified to provide opinions in answer to those three discrete questions, I find that the proposed expert evidence is not necessary.
[40] Defence has conceded that the February 7th fire was intentionally lit, and accordingly expert evidence is not required to resolve that issue. With respect to the potential of a car fire to spread to a nearby house, or the risk posed by gasoline poured onto, and into a car, I agree with defence counsel. In my view, the proposed evidence does not fall “outside the experience and knowledge of a judge and jury”: Mohan, at para. 22. Based on my own common sense and life experience, and without the assistance of an expert witness, I am capable of concluding that a car fire has the potential tospread to a house located mere steps away, and that gasoline poured onto a car, which seeps onto its engine, poses a fire a hazard. Signage at every pump in every gas station alerts customers to the hazards relating togasoline and its flammability.
[41] If I am wrong about the necessity of the proposed evidence, I find that Mr. Sefton would have been qualified to answer the three questions. His training and experience have provided him with expertise on the proposed topics, and I am satisfied that Mr. Sefton not only understands his duty to the court to be impartial, independent and unbiased, but his evidence embodied those essential qualities.
Similar Fact Application
[42] The Crown has brought a similar fact application. In a nutshell, the Crown argues the February 7th and March 7th incidents are so similar, that they must have been committed by the same person. Accordingly, if I find Mr. Van-Luyk guilty of the March 7th mischief, which the Crown argues rests on compelling evidence, it would lead to a finding of guilt with respect to the February 7tharson. The Crown advanced a similar fact argument with respect to the use I can make of the similarities between the two “dousing” incidents, and the slashing incident on December 26th, 2016.
[43] The Crown concedes its similar fact application will die on the vine if I do not find that it has proven Mr. Van-Luyk’s guilt on the March 7th offence. Accordingly, in the interest of efficiency, I will deal first with the March 7th charge, and only if I find it has been proven beyond a reasonable doubt, will I consider the Crown’s similar fact application.
Conclusion on the March 7th Mischief Charge
[44] Though defence counsel made no submissions on the identity of the person captured on the Petro-Canada video, I find that it is beyond reasonable dispute that the person depicted in the Petro-Canada video footage is Mr. Van-Luyk. The video depicts Mr. Van-Luyk at the gas pump filling a jerry can at approximately 1:40 a.m. Mr. Van-Luyk was also seen filling up his car – a black Toyota Camry, with license number BYEH 314 registered to William Van-Luyk. This is the same car in which he was arrested on March 8, 2017 and which Destinee testified he purchased while they were still dating.
[45] The gas station at which Mr. Van-Luyk was observed on video is approximately 1.7 kilometers from the Nugent home. At approximately 2:00 a.m., according to Nicole Nugent, someone was captured on her home surveillance camera dousing her car with fluid from what appeared to be a jerry can similar to one Mr. Van-Luyk had just filled.
[46] It was argued by the Crown that the image captured on the home security camera bears sufficient similarities to Mr. Van-Luyk, that combined with the strong evidence of Mr. Van-Luyk filling a gas can with gasoline at a nearby gas station 20 minutes earlier, I should be left with no reasonable doubt that Mr. Van-Luyk was the person who doused the car with gas.
[47] On behalf of Mr. Van-Luyk, Mr. Owoh urged me toreject the identification evidence offered by Destinee, which Mr. Owoh characterized as “grossly unreliable”. Destinee could not articulate what in particular allowed her to identify his demeanour or the way in which he ran from the scene. As well, Mr. Owoh argued that the discrepancy between the colour of Mr. Van-Luyk’s sweater as seen in the gas station video and the home security video should raise a doubt about whether it was Mr. Van-Luyk who was captured on the home video. The sweater on the home video is clearly light coloured, whereas Mr. Van-Luyk was wearing a dark sweater in the Petro Can video.
[48] Mr. Owoh posits that someone else might have poured gasoline onto Nicole Nugent’s car, maybe even at Mr. Van-Luyk’s direction. He argued that the presence of a second person in the home security video adds credence to that theory.
[49] I am convinced beyond a reasonable doubt that Mr. Van-Luyk was the person seen on video dousing Nicole Nugent’s car with liquid from a jerry can, and that the liquid was in fact gasoline. The fact that the person uses his left hand to pour the gas on the car, whereas Mr. Van-Luyk predominantly used his right hand in the gas station video, does not leave me in doubt. The person dousing the car may have used his left hand topour the gas, but used his right hand (which had been in the front pocket of his hoodie) to apparently throw something onto the windshield of the car, or to light something on the car. In other words, the person captured on the home security video demonstrated dexterity with both hands.
[50] I agree that the sweaters in the two videos appear to be different colours. The one worn by Mr. Van-Luyk at the gas station appears to be dark, whereas the one worn by the gas douser appears to be much lighter. I have no idea what accounts for that difference. Quite possibly they are two different sweaters, though I note that in the Petro-Canada video, it would appear that Mr. Van-Luyk has light coloured clothing underneath his dark sweater.
[51] However, any weakness in the identification evidence occasioned by the different sweater colours is compensated by the similarities in the pants worn by Mr. Van-Luyk and the person seen dousing the car. As I am entitled to do, I have watched the videos multiple times and made my own comparisons between Mr. Van-Luyk’s appearance as depicted in the Petro-Canada footage, and the images captured by the home security camera. Of significance, I noticed that both Mr. Van-Luyk and the figure captured in the security footage were wearing somewhat baggy pants with obvious white stitching on both back pockets. This unique identifier combined with the other circumstantial evidence of identity has convinced me that it was Mr. Van-Luyk who was captured on the Nugent home security camera.
[52] In concluding as I do, that it was Mr. Van-Luyk who was captured on video, I have not relied on the identification evidence of Destinee Nugent. While the admissibility of recognition evidence does not require the witness to describe an identifiable feature or idiosyncrasy, R. v. Berhe, 2012 ONCA 716 (CanLII) at para. 22., in my view Destinee’s evidence concerning her recognition of Mr. Van-Luyk in the home security video, and of his sweater, was vague and unconvincing. While it turns out that Destinee correctly identified Mr. Van-Luyk, I came to the same conclusion without reliance on her evidence.
Mischief
[53] Though Mr. Van-Luyk was arraigned on two mischief counts, each of which stipulate a different subsection, there is only one offence of mischief. Section 430(1) creates the offence of mischief and once proven, subsections (2) to (4) classify the mischiefoffence for sentencing purposes. Section 430(1) provides as follows:
(1) Every one commits mischief who wilfully
(a) destroys or damages property;
(b) renders property dangerous, useless, inoperative or ineffective;
(c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or
(d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.
[54] The mental element requires proof that the accused intentionally or recklessly caused one or more of the above prohibited acts: R. v. Toma (2000), 2000 BCCA 494 (CanLII), 147 C.C.C. (3d) 252 (B.C.C.A.).
[55] For reasons already expressed, I find that Mr. Van-Luyk intentionally damaged Nicole Nugent’s car by deliberately pouring gasoline onto the front of the car thereby rendering the car dangerous, and interrupting Ms. Nugent’s lawful use, enjoyment or operation of the car. I find him guilty of mischief.
[56] While I have been persuaded that Mr. Van-Luyk caused damage to Nicole Nugent’s Ford Focus, there was no evidence led regarding the value of the car. I am not in the position to assume the car had a value in excess of $5,000 and accordingly. Section 430(3), which provides the sentencing options for mischief of property exceeding $5,000, does not apply.
[57] I am however convinced that the mischief which Mr. Van-Luyk deliberately caused to Ms. Nugent’s car caused actual danger to life, and accordingly, s. 430(2) does apply. That subsection provides as follows:
(2) Every one who commits mischief that causes actual danger to life is guilty of an indictable offence and liable to imprisonment for life.
[58] The actual danger must be the direct result of the mischief, and not merely incidental to the mischief: R. v. Humphrey, [1986] O.J. No. 1247 (C.A.). The home security footage captured Mr. Van-Luyk deliberately pouring the gasoline over the front of the car, specifically on top of the hood and down the front window of the car. It can only be assumed that the gasoline was deliberately directed towards the engine of the car which sits immediately beneath the hood.
[59] Moreover, the video depicts Mr. Van-Luyk throwing something onto the hood of the car, which I assume was done in an attempt to ignite the gasoline. Mr. Van-Luyk’s covert pouring of gasoline onto the car in the middle of the night, while someone keeps watch, followed immediately by running from the scene, reasonably support that assumption.
[60] The Crown has proven that Mr. Van-Luyk wilfully committed mischief that caused actual danger to life and I find him guilty on counts 1 and 2.
The February 7th Arson and Similar Fact Evidence
[61] The Crown asks that I consider the evidence concerning the March 7th incident as evidence that Mr. Van-Luyk also committed the February 7th arson charge. In other words, the Crown submits that the circumstances surrounding the commission of both offences are so similar that if I find Mr. Van-Luyk guilty of the March 7th offence (which I have), I can safely consider that evidence in proof of the February 7thoffence.
[62] Ordinarily, in a multi-count information, the trial judge must consider the evidence in proof of each count separately to determine whether each charge has been proven. Evidence in relation to one count is presumptively inadmissible against the others, unless the evidence is admitted as similar act evidence: R. v. Manitopyes (2016), 2016 SKCA 61 (CanLII), 336 C.C.C. (3d) 386 (Sask. C.A.), at para. 16.
[63] Similar act evidence is also presumptively inadmissible. As a first step, I must be persuaded on a balance of probabilities that the proposed similar act evidence is both relevant and sufficiently probative togain admission. The admission of evidence to prove the identity of an accused across multiple counts depends on there being such a high degree of similarity between the acts, that the possibility of coincidence can be safely discounted: R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 45.
[64] In this case the similar act evidence is being tendered to prove the identity of the person who committed the February 7th offence and accordingly, a high degree of similarity is required between that offence and the March 7th offence. The similarity may consist of a unique trademark or signature or a series of significant similarities: Arp, at para. 45.
[65] In assessing the similarity between offences, the trier of fact should generally only focus on the manner in which the acts were committed, and not on the accused’s involvement or connection to the offences. It is only once the trial judge concludes that the offences were likely committed by the same person, that the court can consider the similar fact evidence together other admissible evidence linking the accused to the offences, to determine whether they have been proven beyond a reasonable doubt: Arp, at para. 49.
[66] An evaluation of the probative force of the similar act evidence should take into account the following considerations: R. v. Handy, 2002 SCC 56 (CanLII), [2002] 2 S.C.R. 908, at paras. 121-132
i. temporal proximity of the similar acts;
ii. similarity in detail between the similar acts and the offences charged;
iii. the number of similar acts;
iv. the circumstances surrounding the similar acts;
v. distinctive features unifying the incidents; and
vi. intervening events;
February 7, 2017 Arson
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March 7, 2017 Mischief
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The arson involved the deliberate igniting of a car fire.
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The mischief involved an attempt to set a car on fire.
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The car belonged to Nicole Nugent.
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The car belonged to Nicole Nugent.
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The car was parked in the driveway of Ms. Nugent’s townhouse at 32 Middletown Way in Brampton.
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The car was parked in the driveway of Ms. Nugent’s townhouse at 32 Middletown Way in Brampton.
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The arson occurred on the 7th day of the month.
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The mischief occurred on the 7th day of the month.
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Ms. Nugent noticed her car was on fire at around 2:30 a.m.
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Ms. Nugent testified that according to her home security camera footage, the attempt to light her car on fire occurred around 2 a.m.
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A tin of lighter fluid was found on top of the burned car, and the odour of lighter fluid was noticeable to Mr. Sefton.
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The mischief involved the use of a liquid accelerant in the form of gasoline, and the odour of gasoline was noticeable to Ms. Nugent and the attending officer.
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The rear of the car’s engine on driver’s side was burned, and the cowling at the top had been damaged by fire. A cowling is the base of the windshield where it goes lower than the hood level.
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The mischief involved pouring gasoline on the hood of the car, and down its windshield.
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[68] In assessing the probative value of the evidence, I have also considered the differences between the two events. Specifically, it would appear that two different accelerants were used. March 7th involved the use of gasoline, whereas it would appear that the February 7thincident involved lighter fluid. As well, while the February 7th arson appears to have involved the use of wooden matches (as evidenced by their presence at the scene), it would not appear as though matches were involved in the March 7th mischief.
[69] The differences by which the February and March offences were committed are minor and do not detract from what I view as striking similarities. The similarities between the two events-which took place exactly a month apart cannot reasonably be chalked up tocoincidence and I find that the two offences were likely committed by the same person.
[70] At this point, evidence linking the accused to the offences, including any motive, becomes relevant todetermining whether the offence has been proven: R. v. Backhouse (2005), 2005 CanLII 4937 (ON CA), 194 C.C.C. (3d) 1 (Ont. C.A.), at para. 171. The Crown argued that the bad break-up between Destinee and Mr. Van-Luyk, combined with Destinee’s outstanding debt, served to motivate Mr. Van-Luyk in the commission of these offences.
[71] Evidence of a motive is relevant and admissible unless barred by an exclusionary rule: R. v. Skeete, 2017 ONCA 926 (CanLII), 357 C.C.C. (3d) 159, at para. 103. Recently in R. v. McDonald, 2017 ONCA 568 (CanLII), 351 C.C.C. (3d) 486, at para. 99, Watt J.A. explained that like any other item of circumstantial evidence, the value tobe assigned to evidence of motive depends on the inferences sought to be drawn from the evidence. For evidence of motive to be admissible, the inference sought need not be the only one inference available or even the strongest, but it must not be based on speculation.
[72] The Crown fairly acknowledged that the evidence of Mr. Van-Luyk’s motive is not strong. I agree. However, while the circumstances surrounding the money owed by Destinee are not entirely clear, there is some evidence upon which I can find that Mr. Van-Luyk was frustrated with Destinee over her unpaid debt. Standing alone, this evidence would not persuade me that Mr. Van-Luyk was responsible for the February 7th arson. The text messages were sent almost three months earlier and with the exception of his December 30th text exchange between Mr. Van-Luyk and Destinee, there had been no further contact between the two.
[73] However, Mr. Van-Luyk’s past frustration with Destinee is a piece of circumstantial evidence which I am entitled to consider and which, based on logic and common sense, is capable of providing some evidence of motive, albeit not weighty: R. v. McDonald, at para. 100.
[74] As well at this stage, having admitted the similar fact evidence, Mr. Van-Luyk’s connection to the March 7th offence, which I have already concluded has been established, becomes relevant to the issue of identity on the February 7th offence: Arp, at para. 53.
[75] The similar fact evidence, Mr. Van-Luyk’s proven involvement in the March 7th offence, and his knowledge of, and past connection with the Nugents, combine topersuade me beyond a reasonable doubt that Mr. Van-Luyk set fire to Nicole Nugent’s car on February 7th, 2017.
[76] The actus reus of arson is established with proof that the arsonist damaged another’s property by fire or explosion. The mens rea consists of an intentional or reckless state of mind: R. v. Yellowknee, 2017 ABCA 60(CanLII), at para. 74. The circumstances of the offence lead me to conclude that the fire was intentionally lit and was the not the bi-product of an accident or some other misadventure. Accordingly I find Mr. Van-Luyk guilty on count 3.
Conclusion Regarding the Tire-Slashing
[77] I have come to a different conclusion however, with respect to the December 26, 2016 tire slashing. While the Crown has urged me to consider the similar act evidence from the February and March incidents as evidence in proof of the tire slashing, there are insufficient similarities between those offences and the manner by which the December 26th offence was committed. The principal similarity is that all offences involved Nicole Nugent’s car, which at the time of all three offences, was parked in her driveway. However, that is where the similarities end. I find that the proposed evidence lacks the unique trademark, signature or a series of significant similarities to justify its admission as evidence of identity. I find Mr. Van-Luyk not guilty on count 4.
Conclusion
[78] I find Mr. Van-Luyk guilty on count 1 of simplemischief, on count 2 of mischief which endangered the life of Nicole Nugent, and on count 3 of causing damage by fire. I find Mr. Van-Luyk not guilty on count 4 of mischief.
[79] The gravamen of the two offences in counts 1 and 2 is the same, namely the intentional damaging of Ms. Nugent’s car. At this point I invite submissions on whether, pursuant to the principle articulated in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, count 1 should be stayed.
Released: July 31, 2018
Signed: Justice I.M. Jaffe
By
for the law societies members of the
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