COURT OF APPEAL FOR ONTARIO

Court File and Parties

DATE: 20000711

DOCKET: C32728

RE: HER MAJESTY THE QUEEN (Respondent) v. KELLY
FRANCIS STEPHENS (Appellant)

BEFORE: DOHERTY, ABELLA and MOLDAVER JJ.A.

COUNSEL: Jill Copeland
for the appellant

Leslie Paine
for the respondent

HEARD: July 10, 2000

On appeal from the conviction imposed by His Honour Justice
Meehan, sitting with a jury, on June 2, 1999.

E N D O R S E M E N T

[1] It is most unfortunate that the mattress was destroyed.
Hopefully, the authorities are now aware that this was totally
inappropriate. If that message has not got out, we trust Crown
counsel will make it clear to the appropriate authorities.

[2] In these circumstances where there was no evidence such as
to give the defence of accident an air of reality, and where
there was overwhelming evidence that the fire was deliberately
set, we cannot describe the flammability of the mattress as
central to the question of whether the fire was intentionally
set, although we accept that it had some relevance to that issue.
Further, in the circumstances, we do not agree that there was a
realistic possibility that testing of the mattress could have
benefitted the appellant. It is simply speculative to suggest
what the results of any such testing might have been.

[3] The trial judge did hold that the Crown could not adduce
evidence as to the flammability of the mattress. In doing so, he
attempted to redress the harm caused by the destruction of the
mattress. It may be that he could have gone further in his
charge to the jury, however, he was not asked to do so at trial
and we do not regard his failure to do so as resulting in
reversible error. In our view, the trial judge did not err in
refusing to stay the proceedings.

[4] The instruction on reasonable doubt was not perfect,
however, considered in its totality, it was acceptable.

[5] The appeal from conviction is dismissed.

“Doherty J.A.”

“R.S. Abella J.A.”

“M.J. Moldaver J.A.”