COURT OF APPEAL FOR ONTARIO

DATE: 20000925

DOCKET: C29308

RE: HER MAJESTY THE QUEEN (Respondent) v. SABIR SYED (Appellant)

BEFORE: DOHERTY, CHARRON and MACPHERSON JJ.A.

COUNSEL: Michael Lacy and Daniel Kleinman

for the appellant

W. Graeme Cameron

for the respondent

HEARD: September 15, 2000

On appeal from the conviction imposed by Justice Linda Walters, sitting with a jury, dated March 11, 1998.

E N D O R S E M E N T

[1] The appellant was convicted of arson by a jury and sentenced to 4 years in the penitentiary. This was the second trial on the charge. The relevant events occurred in 1993.

[2] Counsel for the appellant raised three grounds of appeal on the appeal from conviction.

The Admissibility of the Appellant’s Fingerprints

[3] In the course of the investigation, the police asked the appellant if he would agree to permit the police to take his fingerprints so as to compare them to prints found at the scene of the arson. The appellant gave his permission and provided the fingerprints. Those prints were matched to two prints found on latex gloves that were located immediately beside one of the incendiary devices found at the fire scene.

[1] It is submitted that the consent provided by the appellant was not an informed consent, that the taking of the fingerprints violated s. 8 of the Charter, and that the evidence should be excluded under s. 24(2).

[2] The trial judge made clear findings of fact which are fully supported by the evidence. On the basis of those findings, the appellant’s consent was an informed one within the meaning of R. v. Wills (1992), 1992 2780 (ON CA), 70 C.C.C. (3d) 529 (Ont. C.A.). The appellant knew he was a suspect when the police asked him to provide his fingerprints. He was told that his fingerprints could be used in subsequent criminal proceedings and he knew that he was entitled to refuse to provide the prints. He also had ample time to consider the request made by the police.

[3] We reject the submission that the police were obliged to tell the appellant that he was the “prime” suspect, or that they were obliged to describe the evidence in their possession to which the prints might eventually be connected. This ground of appeal must fail.

The Admissibility of the Appellant’s Statements to the Insurance Adjusters

[4] Assuming that s. 148(6) of the Insurance Act is such that a statement made pursuant to that section is a statement made under statutory compulsion thereby potentially attracting the protection of the right against self-incrimination, the appellant’s oral statements to the adjusters did not meet the criteria for statements made under s.148(6) of the Insurance Act. That section contemplates a statement made by the insured in the form of a statutory declaration. On any view of the evidence, the appellant’s oral statements to the adjusters were not made under the authority of s. 148(6).

[5] Nor, on this record, can the appellant argue that he reasonably believed that his oral statements made to the adjusters were made under legal compulsion. The appellant did not testify and the record is silent as to his state of mind when he made the statements. It should be noted that the trial predated the decision of the Supreme Court of Canada in R. v. Whyte (1999), 139 C.C.C. (3d) 257. This ground of appeal must also be rejected.

The Crown’s Misstatement of the Evidence

[6] It is acknowledged that Crown counsel misstated the evidence at one point in her closing address. Crown counsel told the jury that on the evidence the appellant had not gained access to his condominium where the fire occurred prior to agreeing to give the police his fingerprints. In fact, the evidence was that the appellant had been in the condominium with one of the insurance adjusters two days earlier. It is not necessary in these reasons to explain the significance of this part of the evidence. It is sufficient to say that it had some importance in the context of the theory of the Crown and that the Crown’s misstatement of the evidence tended to strengthen the Crown’s position. Defence counsel had accurately reviewed this part of the evidence in his closing address.

[7] The trial judge told the jury that it was for them to determine the facts based on their recollection of the evidence. She also correctly summarized the evidence which the Crown had misstated. She did so, however, without bringing the jury’s attention to the Crown’s error and she also did so in the course of her review of the position of the Crown and not by way of a review of the evidence.

[8] It would have been better had the trial judge specifically alerted the jury to the Crown’s error, as defence counsel had requested, and then specifically reviewed the correct state of the evidence.

[9] Viewed in its totality, however, the charge was a very fair one. The primary position of the defence, as elicited through the witnesses for the defence, was reviewed with the jury on several occasions. The trial judge quite properly decided to avoid a detailed review of the evidence in her charge to the jury. Counsel had provided that review in their closing addresses. Had the trial judge decided to give emphasis to the evidence which the Crown had inadvertently misstated, she would also have had to provide a more detailed review of the entirety of the evidence so as to ensure that this one piece of evidence was not given undue emphasis by the jury. A detailed review of the evidence would not have assisted the appellant.

[10] Although there was considerable force to this submission, we are not satisfied that the jury would have been misled by Crown counsel’s inadvertent misstatement of the piece of the evidence and we are satisfied that no miscarriage of justice occurred. This ground of appeal fails and the appeal from conviction must be dismissed.

The Sentence Appeal

[11] It is agreed that the trial judge erred in principle in holding that the absence of remorse was an aggravating factor to be considered on sentence. Given that error in principle, we are obliged to consider the sentence afresh.

[12] In considering what sentence we should now impose, we take into consideration that the appellant and his family have had these charges hanging over their heads for some 7 years. The appellant has been through two trials and he has been subject to significant bail terms throughout. He is a first offender, and but for this offence, a solid citizen. Although the crime was a serious one in that it involved an arson at a residential condominium, we are satisfied that the sentence should be varied. We would vary the sentence to one of 2 1/2 years. Consequently, leave to appeal sentence is granted, the sentence appeal is allowed, and the sentence varied to 2 1/2 years.

“Doherty J.A.”

“Louise Charron J.A.”

“J.C. MacPherson J.A.”