Court of Appeal for Ontario

Date: 2017-03-01 Docket: C61807

Judges: Weiler, Pepall and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

David Ernest MacIsaac Appellant

Counsel:

• Andrew Burgess, for the appellant
• Craig Harper, for the respondent

Heard: January 10, 2017

On appeal from a conviction entered January 6, 2016 by Justice R. Dan Cornell of the Superior Court of Justice, with reasons reported at 2016 ONSC 67.

Trotter J.A.:

A. Introduction

1David MacIsaac burned down his two-storey building in Espanola and then attempted to collect the insurance proceeds. He was convicted of arson under s. 433 and 434 of the Criminal Code, R.S.C. 1985, c. C-46. The case against him was formidable, and included evidence of motive, planning, preparation, as well as forensic evidence suggesting that he was involved in setting the fire. The Crown also relied upon the testimony of a disreputable witness, who was probably an accomplice.

2Mr. MacIsaac appeals his conviction, arguing that the trial judge made several errors in his Reasons for Judgment. For the following reasons, the appeal is dismissed.

B. The Facts

(1) Overview

3In the early morning hours of March 19, 2012, downtown Espanola was rocked by a number of explosions. The ensuing fire destroyed two buildings, one of which was owned by Mr. MacIsaac ("the appellant").

4It was the Crown's theory that the appellant, along with Craig Hunda ("Hunda"), conceived of a plan to burn down the appellant's building. Late at night, the two men went to the appellant's property at 128 Tudhope Street ("the building"), accompanied by the Crown's main witness, Jordan Leggat ("Leggat"), who was Hunda's girlfriend. The appellant and Hunda doused toilet paper rolls with ignitable fluid and set the place on fire.

5Shortly after the explosions, first responders arrived to find the appellant lying on the ground just outside of his building. Both of his legs and one of his arms were neatly bound by duct tape. The appellant had been beaten about the face and stabbed in the back. He told first responders that strangers attacked him and then set fire to his building. However, the evidence later showed that the appellant was complicit in burning down his own building and his story about being attacked was a ruse.

(2) The Appellant and the Property

6The appellant was a contractor. In March of 2011, he bought the building from a private mortgage lender, Jared Ethier ("Ethier"), with the intention of renovating it.

7The appellant bought the building for $90,000. While Ethier registered a mortgage in that amount, he advanced $100,000 to the appellant. The additional $10,000 was a gift, intended to finance immediate work on the property. Ethier eventually advanced more funds and placed second and third mortgages on the property. In total, there was $165,000 in mortgages. The building was appraised at $300,000. It was insured for $500,000.

8The appellant was able to make his mortgage payments and, at the time of the fire, the mortgages were in good standing. However, in the fall of 2011, as he continued to renovate, he offered to sign the building over to Ethier and walk away. Ethier encouraged the appellant to "hang in and see it through" so that he (the appellant) could make some money when the work was completed. The issue was not discussed further.

(3) The Tenants

9Part of the appellant's work involved constructing two apartments in the building. By the time of the fire in March of 2012, tenants had been found for the apartments. It was the Crown's theory that, in the days leading up to the fire, the appellant checked to make sure that neither of them would be home at the time.

10One tenant, Jocelynne Marinier ("Marinier"), spoke with the appellant a couple days before the fire. He asked her when she planned to move in. Marinier said she would move in when a fridge that was in the basement was moved into her apartment. The appellant told her he was waiting for someone to help him move it.

11The other tenant, Heather Swinimer ("Swinimer"), had already moved into her apartment. She would advise him when she was absent as the appellant sometimes needed access to her unit for renovation purposes. When she spoke with the appellant on March 10, 2012, he asked if she was going away. She told him that she would be leaving that day, and returning a week from the following Monday.

12At the time, Swinimer saw the appellant put his tool belt in his car. She noticed that it was also crammed with tools, clothing and various garbage bags. It was the Crown's theory that the appellant moved his personal items out of the building to prevent their destruction in the impending fire.

(4) The Initial Investigation

13Firefighters arrived at the scene at 1:03 a.m. on March 19, 2012. The building was ablaze. The appellant was lying about six to eight feet from the building. It did not appear that he was in immediate danger of being burned by the fire. His legs were duct taped, as was his left arm. There was no duct tape or gag around his mouth.

14The appellant told the first-responders that he had been stabbed and assaulted outside, as he was entering the building. Further investigation led to the discovery of a knife, blood and duct tape in the hallway of the building. It was formally admitted at trial that the assault actually occurred inside.

15A first responder found a suitcase and a leather computer bag outside the building, close to where the appellant was found. These bags contained personal items, including the appellant's passport, SIN card and birth certificate.

16A paramedic who treated the appellant thought his behaviour was strange because his answers were vague and, although he reported that he had just been attacked, the appellant was quiet rather than loud and emotional. The paramedic made observations of the duct tape. He described it as smoothly wrapped, with no wrinkles or pinching of the clothing. It was the Crown's theory that the duct tape was so neatly applied because the appellant consented to being duct taped as part of the ruse.

(5) The Appellant's Statements

17The appellant gave a number of statements in the aftermath of the fire. When he made his first statement at the scene, the police thought that the appellant was a victim, not a suspect. The appellant told an officer that he lived in and owned the building. He said that he drove home that night in his 2008 Pontiac Wave. As he entered the doorway, he was attacked from behind. One of his attackers called him an "asshole." The appellant did not know who attacked him, or why. He also told the police that he did not think his tenants were home. The appellant's car was not at the building at the time. He thought that it might have been stolen.

18The appellant spoke to the police when he was at the hospital. One officer smelled kerosene coming from the appellant's wet clothing. The appellant told the officer that he heard two voices calling him an "asshole." He recalled black clothing, duct tape and punches. The appellant told the officer that he was hit – possibly with a bat – and pushed from behind.

19Later that morning, the appellant gave another statement. This time, he went into great detail about his activities that day, leading up to the fire. The appellant told the officer that, when he arrived home and unlocked the door, he heard running and then people pushed him to the ground. He believed he was hit with a stick.

(6) The Cause of the Fire

20The fire was deliberately set. This was established through the evidence of a fire investigator with the Ontario Fire Marshall's Office, a private fire investigator/consultant and a scientist from the Centre of Forensic Sciences.

21The explosion was described as a "deflagration" as opposed to a "detonation", meaning that the sound caused by the explosion was more like a "whoosh", rather than a "bang." This distinction is important when considering the evidence of Leggat, discussed at para. 30 below.

22The fire was started by volatile ignitable liquid distributed throughout the building. The fire was set on the rear staircase and then spread to the second floor. The first and second floors collapsed into the basement, which remained largely intact. In the basement, investigators discovered fuel cans and many toilet paper rolls, placed in various locations, including on and around the wood framing. A forensic chemist was able to match volatile ignitable liquid found on the appellant's boots, jacket, socks, t-shirt, underwear and jeans with the same type of liquid found on carpeting from the building, and on the toilet paper rolls collected from the building.

(7) The Accomplices

23Three other people were involved, or potentially involved, in setting the fire – Hunda, Leggat and Jason Tessier ("Tessier"). It was admitted at trial that Hunda, a man with an extensive criminal record, actually set the fire. It was also admitted that Hunda assaulted the appellant.

24In separate proceedings, Hunda was convicted of arson and of the aggravated assault of the appellant. Hunda did not testify at the appellant's trial.

25Leggat supplied a narrative that implicated the appellant as complicit in setting the fire. However, there were serious problems with her evidence. Her story was an evolving one.

26Leggat initially told the police that she was not at the scene of the arson. She asked a friend to support her false alibi. Until the preliminary inquiry of Hunda, Leggat lied to the police about the footwear she wore that evening. She also failed to tell them that she hid Hunda's clothing, wiped down the appellant's car and hid the key to the car at her grandfather's home.

27At the preliminary inquiry of Tessier, Leggat discarded her alibi and testified that she was at the building on the night of the arson, but never went inside. This version was developed after Leggat asked the police about the benefits of assisting them. Leggat was permitted to plead guilty to being an accessory after the fact to arson, after being charged with arson and attempted murder. She received a 20-month conditional sentence of imprisonment.

28At trial, Leggat provided the following version of events. She acknowledged that, at the time of the arson, she was using cocaine and oxycodone on a daily basis. On the night of March 18, 2012, she was in Sudbury (where she lived). Hunda called and told her, "I need you to come for a ride with me tonight." They met at a store and were driven to another location where they met up with the appellant. Leggat recognized the appellant from a poker game in Espanola one year earlier, when she was at the appellant's building with Hunda. Hunda and the appellant talked to each other in a friendly manner. The three got into the appellant's car and drove to Espanola. They stopped along the way on two occasions when Hunda and the appellant got out to speak to each other.

29When they arrived at the building, the appellant got out of his car and went to the trunk, while Hunda looked for tape in the back seat. The two men went into the building. Leggat was told to wait in the car. She saw the appellant and Hunda walking around the building, including upstairs, where the two apartments were located. Contrary to her previous version of events, Leggat said that she got bored waiting in the car and went to the building and knocked on the door. She testified that she could not let herself in because the door had no handle. This was proven to be false. Leggat went inside and sat at the top of the staircase that led to the basement. The two men went into the basement carrying toilet paper. She said she could hear fluid splashing and dripping in the basement. Leggat heard the appellant say something like, "[c]an you ask her to wait outside, we'll only be a couple more minutes." Leggat said that she went outside and waited by the car for about 45 minutes. Hunda came outside and told her to "[g]et ready" and to sit in the driver's seat of the appellant's car because they would not be much longer.

30Shortly afterwards, Leggat saw Hunda standing outside the building. The fire started in the building and made a loud "whoosh" sound. As noted above in para. 21, this was confirmed by the evidence of a fire investigator. Hunda was thrown to the ground and his clothes caught fire. Leggat and Hunda ran down an alleyway. Leggat instructed him to "stop, drop and roll." Hunda was badly burned. Using the appellant's car, Leggat drove Hunda to a hospital in Sudbury. She then got rid of his clothes, abandoned the car and returned to the hospital. The police located the car a short distance from the hospital.

31Leggat was picked up from the hospital by Tessier, who drove her to her grandfather's house. It was here that she hid the keys to the appellant's car.

32Leggat testified that she did not see the appellant lying on the ground outside when the fire started even though, by her account, she was right there. After they left the scene, she asked Hunda, "[w]here is that guy", referring to the appellant.

33Before leaving Leggat's testimony, I mention the evidence of Susan Brandow ("Brandow"), an employee at the Espanola post office, which was close to the appellant's building. While she was taking a break at 12:45 a.m., she heard an explosion. She saw the silhouette of two figures running away from the building. She saw one of them, who she thought was a woman, put her hand up with a palm facing toward the second person. The two then ran back towards the scene. It was the Crown's theory that Brandow saw Leggat and Hunda as they ran from the building. Her observations were consistent with Leggat telling Hunda to "stop, drop and roll."

C. Issues on Appeal

34The appellant raises four grounds of appeal. He argues that the trial judge erred by: (a) using neutral evidence as confirmatory of Leggat's account; (b) improperly using the appellant's exculpatory statements as evidence of guilt; (c) excluding relevant evidence by misapplying the collateral fact rule; and (d) engaging in speculation in a manner inconsistent with the burden of proof.

35The respondent submits that the trial judge did not commit any of the alleged errors.

D. Analysis

(1) The Vetrovec Issue

36The trial judge was fully aware that Leggat was a highly problematic witness. After noting that she had "provided various versions of the events to the police" and "provided a great deal of false information to the police" (at para. 31), the trial judge observed (at para. 32):

It is clear that Ms. Leggat hid and destroyed evidence and then lied to the police on many occasions over a long period of time. This conduct is consistent with the possibility that such conduct was an effort on her part to conceal her involvement as a party to the offence. If Ms. Leggat was not a party to the offence, her story also raises the question about why she was asked to attend the property and enter the building. It makes little sense to bring her to the scene of the crime if she was not to play an active role as she could do nothing but become a witness to the events.

37The trial judge cited R. v. Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811, and reminded himself that Leggat's evidence must be approached "with a great deal of caution" (para. 35). He recognized that, in deciding whether to believe some, none or all of Leggat's evidence, it was necessary to see if the balance of the evidence provided "some independent confirmation" (para. 49).

38The trial judge was required to look for confirmation in evidence that was independent of Leggat: see R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 39 and R. v. Roks, 2011 ONCA 526, 274 C.C.C. (3d) 1, at paras. 63 and 64. The evidence did not need to directly implicate the appellant in the offences; it only needed to be capable of restoring the trial judge's faith in the relevant aspects of Leggat's account: see R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328, at paras. 15-16; Khela, at para. 40-41; and Roks, at para. 65. The trial judge could not rely upon evidence that was neutral, in the sense of being equally consistent with the truth or falsity of Leggat's evidence: see R. v. McFarlane, 2012 ONCA 355, 102 W.C.B. (2d) 542, at para. 14. Neutral evidence neither confirms nor discredits.

39When engaging in the analysis required by these authorities, trial judges are afforded considerable latitude. In R. v. Kler, 2017 ONCA 64, [2017] O.J. No. 375, Watt J.A. said (at para. 145):

The extent to which a trial judge illustrates potentially confirmatory evidence in connection with a Vetrovec witness is largely a matter of judicial discretion. Unlike potentially corroborative evidence under the former accomplice rule, references to potentially confirmatory evidence are illustrative, not exhaustive. And unlike under the former rule, confirmatory evidence need not implicate the accused in a material particular in the offence charged.

40Overall, the trial judge properly analyzed this body of evidence and applied the principles in the authorities discussed above. In reaching this conclusion, it is important to appreciate the structure of his judgment. The trial judge commenced his analysis by considering Leggat's circumstances at the time of the offence. She was a heavy drug user who committed crimes to support her habit. By the time of trial, she was on the road to recovery, albeit with bumps along the way. Moreover, at the time of the arson, she was in an abusive relationship with Hunda. Leggat testified that, out of fear in general, and fear of going to jail for the rest of her life, she had previously lied to protect herself.

41The trial judge recognized that, even if he accepted Leggat's explanations for her behaviour as genuine, independent confirmation was still required. The trial judge engaged in a thorough review of the "balance of the evidence tendered at trial" (at para. 49). He did not evaluate each item of evidence for its potential confirmatory value; instead, confirmatory evidence was identified in his review of the evidence as a whole: see R. v. Gagnon (2000), 2000 CanLII 16863 (ON CA), 147 C.C.C. (3d) 193 (Ont. C.A.), at para. 17.

42I accept that the trial judge relied on some items of evidence that, due to their susceptibility to competing interpretations, were neutral and did not provide confirmation of Leggat's account. For example, the fact that Leggat and Hunda were not present when the first responders arrived (within two to three minutes of the explosions) did not confirm Leggat's account that the appellant left his keys in the ignition and pointed this out to the others. The trial judge erred in finding that this evidence confirmed Leggat's account.

43However, the trial judge pointed to numerous pieces of evidence that did independently confirm Leggat's account, including the following:

• The discovery of the appellant's car in Sudbury confirmed Leggat's evidence that it was used as the getaway car;
• Expert evidence supported Leggat's account of how and where the fire was started;
• Forensic evidence revealing ignitable liquid on the appellant's clothing confirmed Leggat's account that the appellant and Hunda were carrying toilet paper rolls into the basement and that she had heard splashing and dripping sounds; and
• While not being a perfect fit, Brandow's evidence was capable of confirming Leggat's evidence that they immediately ran after the explosion and that she instructed Hunda to roll on the ground to extinguish his burning clothing.

44As discussed in the authorities cited above, for evidence to be confirmatory in this context, it need not cut a direct path to guilt; it need only be capable of assuring the trier of fact that it is safe to rely upon the word of a disreputable witness. The trial judge's reasons demonstrate that this is how he approached the evidence in determining whether the Crown had proven the appellant was involved in the arson. The potential complicity of Leggat, while a significant factor relating to her credibility, was immaterial to the appellant's guilt. In concluding his analysis, the trial judge said (at para. 104):

Some of this evidence is consistent with Ms. Leggat being a party to the offence. Some of the evidence provides independent confirmation of the evidence that she offered at this trial. After careful consideration of all of the evidence, I am satisfied that Ms. Leggat is a credible witness and, in most respects, also a reliable one. I accept her evidence. Having done so and considering all of the evidence apart from that offered by Ms. Leggat, I have no hesitation in reaching the conclusion that the Crown has proven each of the constituent elements of the two arson charges beyond a reasonable doubt.

45This was the correct approach. I would not give effect to this ground of appeal.

(2) The Appellant's Statements

46The appellant argues that the trial judge erred by rejecting the appellant's exculpatory statements and then treating them as positive evidence of his guilt. The trial judge addressed the appellant's statements towards the end of his reasons, when he said the following (at paras. 98, 100 to 102):

I have already recounted the statements and version of events provided by Mr. MacIsaac to the police. If they are true, he is an innocent victim. If they are false, such statements have been offered to provide a cover story for Mr. MacIsaac's involvement in the arson.

When all is said and done, the version of events given in Mr. MacIsaac's statements would amount to a random act of violence possibly resulting in murder unmotivated by money or other financial gain.

This stands in stark contrast to the other objective evidence that has been reviewed. Mr. MacIsaac was the owner of the building who stood to gain from a successful insurance claim. This is the more plausible explanation for the events that occurred that evening.

I am satisfied that Mr. MacIsaac was not telling the truth when he gave his statements to the police. I am further satisfied Mr. MacIsaac provided this misleading and untrue information in an effort to mask his involvement in the arson. Having made these findings, I draw an adverse inference against Mr. MacIsaac as a result of such post-offence conduct. [emphasis added]

47The trial judge erred in the manner in which he approached this evidence. It was open to the trial judge to disbelieve the appellant's statements as implausible and incapable of raising a reasonable doubt. However, without evidence of fabrication, the trial judge could not infer guilt from mere disbelief: see R. v. Blazeiko (2000), 2000 CanLII 14726 (ON CA), 145 C.C.C. (3d) 557 (Ont. C.A.), at para. 7 and R. v. Edwards (2004), 2004 CanLII 32312 (ON CA), 187 C.C.C. (3d) 129 (Ont. C.A.), at para. 33. In this case, the trial judge did not point to any extrinsic evidence of fabrication. Moreover, while evidence that points to an accused person's guilt may lead a trier of fact to reject an accused person's statement as untrue, standing alone, direct evidence of guilt cannot be equated with fabrication: see R. v. Coutts (1998), 1998 CanLII 4212 (ON CA), 126 C.C.C. (3d) 545 (Ont. C.A.), at paras. 13-16.

48There are some situations in which concoction or fabrication may be inferred from the content of a statement and/or the circumstances in which it was given. Such circumstances and features might include: (1) the timing of the statement (given when the police did not believe the accused was a suspect); (2) the scope of exculpation given in the statement; and (3) the degree of detail provided by the accused. See R. v. O'Connor (2002), 2002 CanLII 3540 (ON CA), 62 O.R. (3d) 263 (C.A.), at para. 31 and R. v. Bradey, 2015 ONCA 738, 127 O.R. (3d) 721, at para. 173.

49There are some parallels between this case and O'Connor, in which it was held that a jury could use the circumstances surrounding the making of the accused's statements, and nature of those statements, to conclude that they were fabricated to avoid suspicion. If this was the reason that the trial judge in this case treated the appellant's statements as positive evidence of guilt, it was incumbent upon him to explain why the content of the statements, and/or the circumstances in which they were given, revealed fabrication. Without an explanation, I am unable to determine whether the trial judge: (1) considered this case to be analogous to O'Connor; (2) wrongly equated mere disbelief with evidence of fabrication; or (3) erroneously inferred fabrication because the appellant's statements stood "in stark contrast to the other objective evidence that has been reviewed" (at para. 101). The latter two reasons would be impermissible.

50However, in all of the circumstances, this error was inconsequential. The trial judge's reliance on the appellant's statements as evidence of guilt was not integral to his ultimate conclusion. It is clear from the trial judge's reasons that the appellant's statements did not raise a reasonable doubt. The evidence as a whole, including the forensic and scientific evidence, pointed overwhelmingly to the appellant's participation in setting the fire. I conclude that there was no substantial wrong or miscarriage of justice occasioned by the trial judge's error and I would apply the proviso in s. 686(1)(b)(iii) of the Criminal Code.

(3) The Collateral Fact Rule

51The appellant argues that the trial judge erred by improperly curtailing the cross-examination of Leggat. This issue has its roots in the criminal proceedings against Leggat for her role in the arson. As discussed above (at para. 27), Leggat pled guilty to being an accessory after the fact to arson.

52The record is not entirely clear on this point, but it would appear that a report prepared by a psychologist, Dr. Valiant, was introduced at Leggat's sentencing hearing. During her testimony at the appellant's trial, defence counsel (not Mr. Burgess) confronted her with this report. The following exchange took place:

Q.: Okay. When you met with Dr. Valiant you reported that you have special mystical powers or a special mission in life that other people do not accept. Right?

A.: I said I had mystical powers?

Q.: Mn-hmm.

A.: No.

Q.: Would you like to – would it help…

A.: Yeah, I do.

Q.: …you refresh your memory to see…

A.: Yeah.

Q.: …the report?

A.: I never said I had…what are mystical powers? I don't even know what that word means.

53The trial judge intervened to question the relevance of this evidence. Defence counsel advised that Leggat in fact "said" she had mystical powers, but quickly backtracked to suggest that Leggat had "endorsed" having these powers. Defence counsel argued that the line of questioning was relevant to Leggat's credibility and reliability.

54In response, the Crown at trial (not Mr. Harper) read an excerpt from the report that suggested that the psychologist's conclusions were not based on Leggat's self-reports, but on her responses to psychometric tests. The Crown quoted the following:

According to her responses content…she feels quite lonely, misunderstood at times, she endorses a number of extremely bizarre thoughts, suggesting the presence of delusions or hallucination. She apparently believes that she has special mystical powers.

55The trial judge curtailed this line of questioning, providing the following reasons:

Well, we're not going down that road, that's a collateral fact and if we're gonna start having evidence about when a person may or may not have told the truth I'm afraid that the, I'm afraid that the actors are gonna take over the circus, so that, that's not going to happen.

We're not, we're not here to determine a host of those things, we are not here to determine first of all whether she said it, because she's giving [sic] you the answer and she said she never made the statement. And, and with the assistance of the information provided, even if I were inclined to go down that road, which I'm not, the report on its face doesn't say that she made that statement.

So that's my ruling, I'm not going to permit you, unless you can phrase some other questions you may wish to put to me now, I'm not going to let you go down, go down that road. You asked the question, you got the answer, "No, I never made the statement to him that I have mystical powers." So where, where do you wish to go from here?

56Defence counsel did not pursue the matter further. Nor did he elect to call any evidence.

57Addressing this ground of appeal is made more difficult because the psychological report in question was not filed as a lettered exhibit at trial. It should have been: see 1162740 Ontario Limited v. Pingue, 2017 ONCA 52, [2017] O.J. No. 331, at paras. 35-36. Without reading the report, it is difficult to put the "mystical powers" comment in its proper context. Nevertheless, even on the limited record that is available, it is clear that defence counsel's proposed line of questioning was not barred by the collateral fact rule. But as discussed below, the cross-examination was problematic in other ways.

58The collateral fact rule does not curtail what is otherwise proper cross-examination of a witness; it potentially limits the manner in which answers given may be subsequently challenged by extrinsic evidence: see Sidney N. Lederman, Alan W. Bryant and Michelle K. Fuerst, The Law of Evidence in Canada, 4th ed. (Toronto: LexisNexis Canada Inc., 2014), at pp. 1195-1201. As is often said, if the questioner asks a question that bears on a collateral issue, he or she is "stuck" with the answer, in the sense of not being permitted to lead extrinsic evidence to contradict it. However, this does not prevent proper questions from being put in the first place: see R. v. Krause, 1986 CanLII 39 (SCC), [1986] 2 S.C.R. 466, at pp. 474-475 and R. v. Khanna, 2016 ONCA 39, 127 W.C.B. (2d) 613, at para. 9.

59The collateral fact rule is most often engaged when a cross-examiner attempts to challenge the credibility of a witness. Generally speaking, credibility is considered to be collateral, thereby barring the questioner from adducing extrinsic evidence that bears solely on this issue. However, the rule has developed in a manner that admits of a number of exceptions: See Earl J. Levy, Examination of Witnesses in Criminal Cases, 7th ed. (Toronto: Thomson Reuters, 2016), at pp. 509-511. The exception that might have applied in this case is that medical evidence may be adduced to prove that, by virtue of a mental or physical condition, the witness is incapable of telling or is unlikely to tell the truth. In Toohey v. Metropolitan Police Commissioner, [1965] A.C. 595 (H.L.), at p. 608, Lord Pearce held: "…it must be allowable to call medical evidence of mental illness which makes a witness incapable of giving reliable evidence, whether through the existence of delusions or otherwise." See also R. v. Dietrich, 1970 CanLII 377 (ON CA), [1970] 3 O.R. 725 (C.A.), at pp. 742-744.

60If Leggat suffered from delusions and/or experienced hallucinations, it may have affected her credibility and reliability as a witness. Defence counsel should have been permitted to explore this issue in cross-examination. Moreover, and although it was never expressed, if defence counsel was contemplating leading the type of evidence considered in Toohey, fairness to Leggat required that she be confronted with this suggestion during her testimony: see Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.) and R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at para. 65.

61This legitimate line of inquiry was undermined by the manner in which counsel framed his questions. Given that the psychological report said that Leggat "apparently believes" she has special mystical powers, it was appropriate to ask her whether she told Dr. Valiant that she had mystical powers. Defence counsel asked the question and Leggat denied the suggestion. Moreover, there would have been nothing improper in asking Leggat whether she believed that she had mystical powers. It was not appropriate, however, to cross-examine Leggat on an assessment or diagnosis contained in the report. It would appear that this is where things were headed when the trial judge intervened. It may have been appropriate to attempt to refresh Leggat's memory by reference to the report, assuming that a proper foundation for doing so could be laid: R. v. Fliss, 2002 SCC 16, [2002] 1 S.C.R. 535, para. 45. However, it is not clear from the portion of the transcript reproduced at para. 52 above whether Leggat actually looked at the report before saying, "I never said I had…what are mystical powers? I don't even know what that word means."

62Even though the trial judge improperly curtailed the cross-examination of Leggat, he offered defence counsel an opportunity to approach the issue in a different manner. Defence counsel did not accept the invitation, did not bring any authorities to the trial judge's attention, nor did he attempt to adduce evidence of a mental disorder along the lines of Toohey.

63Leggat was thoroughly cross-examined on all aspects of her previous statements, evidence, character and lifestyle. As discussed earlier in these reasons, she was exposed as a witness whose evidence required confirmation. I am not persuaded that the manner in which the trial judge dealt with this issue, while somewhat problematic, resulted in an unfair trial. I would not give effect to this ground of appeal.

(4) Speculation and the Burden of Proof

64The appellant points to a number of unrelated passages in the trial judge's reasons and submits that he erred by engaging in speculative reasoning that sometimes reversed the burden of proof. I disagree.

65The appellant submits that the trial judge erred in concluding that the appellant was not in a strong financial position at the time the fire was set. As the trial judge stated at para. 64 of his reasons:

…the initial $10,000 gift from the mortgagee to consummate the closing and the requirement for second and third mortgages suggest that Mr. MacIsaac was not in a strong financial position during his period of ownership of the property.

66The appellant submits that such speculation required him to adduce evidence that he was in a strong financial position – contrary to the burden of proof. The problem was compounded by the trial judge's refusal to allow the appellant's trial counsel to clarify with Ethier that the appellant was not under financial pressure.

67This passage from the trial judge's reasons must be viewed in a broader context. It formed a small portion of the trial judge's analysis of the evidence of motive. The trial judge reviewed all of the evidence that suggested that only the appellant, and not Hunda, stood to gain financially from the destruction of the building. In analyzing the evidence in the manner that he did, the trial judge did not speculate nor did he cast the burden on the appellant to prove that he was in a strong financial position.

68On the issue of the appellant being duct taped, the appellant complains about the following passage from the trial judge's reasons and contends that it involves speculation (at para. 69):

There was nothing in the evidence to suggest that Mr. MacIsaac had duct tape applied to his mouth or was otherwise gagged. There was nothing to suggest that Mr. MacIsaac's right arm had been restrained at any point in time. The fact that no steps were taken to gag Mr. MacIsaac to prevent him from calling for help or to fully restrain him suggests that the application of the duct tape was part of the ruse that was designed to provide Mr. MacIsaac with a cover story and a means of escape. This also provides independent confirmation of the evidence offered by Ms. Leggat.

69The appellant submits that the trial judge's conclusion is irreconcilable with the extent of the appellant's injuries. Further, he contends that there was no evidence of gagging (or the lack of gagging) and the trial judge's reasons shifted the burden to the appellant to demonstrate that he was in fact gagged. Moreover, the appellant argues that the lack of gagging was not probative of his involvement in any plan. I disagree.

70While this evidence might have been capable of different interpretations, there was nothing objectionable about the manner in which the trial judge dealt with it. It formed part of the trial judge's analysis of the duct tape evidence as a whole. When the first responders arrived, none of them observed that the appellant was gagged. Moreover, in his various statements, the appellant did not assert that he was gagged. The evidence as a whole was capable of supporting the finding that the appellant was never gagged, which strengthened the conclusion that he was part of a ruse.

71Lastly, the appellant points to the following passage, dealing with the appellant's statements, as being objectionable for applying an incorrect standard of proof (at paras. 100 to 101):

When all is said and done, the version of events given in Mr. MacIsaac's statements would amount to a random act of violence possibly resulting in murder unmotivated by money or other financial gain.

This stands in stark contrast to the other objective evidence that has been reviewed. Mr. MacIsaac was the owner of the building who stood to gain from a successful insurance claim. This is the more plausible explanation for the events that occurred that evening. [emphasis added]

72Because these comments apply to individual (and related) items of evidence, and not to the ultimate question of whether guilt was proved, the reasonable doubt standard is inapplicable: see R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at pp. 354, 359-361. More generally, in expressing his ultimate conclusion on all of the evidence (para. 104), the trial judge correctly stated the standard of proof. His reasons as a whole demonstrate that he applied the proper standard in finding the appellant guilty of arson.

73I would reject this ground of appeal.

E. Conclusion

74The appeal from conviction is dismissed.

Released: March 1, 2017

G.T. Trotter J.A.

I agree K.M. Weiler J.A.

I agree S.E. Pepall J.A.

Footnote

1I accept that, given the nature of the report, introducing the report into the proceedings may have affected Leggat's privacy interests. However, the trial judge had tools at his disposal (such as ordering the report sealed) to address this concern. Moreover, the report had already been made an exhibit in the proceedings against Leggat.