COURT OF APPEAL FOR ONTARIO

DATE: 20000616

DOCKET: C28541

CARTHY, ROSENBERG and FELDMAN JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Respondent

• and -

DONALD QUANCE

Appellant

Sharon E. Lavine,
for the appellant

Sandy Tse,
for the respondent

Heard: May 10, 2000

On appeal against his conviction by Mr. Justice R. N. Weekes, sitting with a jury, on March 18, 1996 and from the sentence imposed on July 10, 1996

ROSENBERG J.A.:

[1] On November 25, 1994, the appellant, a man of previous good character, went to the house where his estranged wife and her boyfriend were living. He was armed with four containers of gasoline. He began to splash gasoline around the house and in the course of an altercation with his wife and her boyfriend gasoline was either spilt or poured on them. The gasoline ignited and the two victims were horribly burned. The appellant was charged with attempted murder and other offences arising out of this act. At a trial before Weekes J. and a jury, the appellant was convicted of two counts of attempted murder. Charges of arson endangering life and break and enter and committing attempted murder arising out of the incident were conditionally stayed. Following a lengthy sentence hearing, Weekes J. sentenced the appellant to fourteen years' imprisonment in addition to eighteen months' pre-trial custody. The appellant appeals against his conviction and sentence.

[2] The appellant raises two grounds of appeal from conviction. First, he argues that the trial judge erred in admitting the expert evidence of Armen Kassabian, an engineer at the Fire Marshall’s office, as to the source of ignition of the fire. Second, he argues that the charge to the jury on attempted murder was needlessly complex and confusing and may have diverted the jury from the necessity of finding an intention to kill. As to sentence, the appellant argues that the sentence was manifestly excessive given the circumstances of the offence and the appellant’s prior good character. For the reasons that follow, I would dismiss the appeal from conviction and sentence.

THE FACTS

[3] The appellant was 55 years of age at the time of the trial. He married his wife Catherine in 1971. The couple had three adult children. The eldest daughter Jennifer was an important witness for the Crown. The appellant had always been fully employed as a plumber until the recession in the construction industry in 1992 and 1993. In January 1994, the appellant moved to Vancouver where he quickly found work. He lived with his daughter. Catherine visited the appellant in Vancouver in February and April. At the April visit, the couple decided to separate. Catherine had begun a relationship with Garry Henderson. During the next few months the couple reconciled and then separated again. In September 1994, Catherine moved in with Mr. Henderson.

[4] Initially, the separation was amicable. However, the appellant began to feel aggrieved over the way that Catherine was dealing with their property after an incident on October 12, 1994. He began to make threats against her life. From October 12th to the date of the fire, the appellant said the following to various witnesses:

• He wanted to blow his wife’s head off;

• He wanted to “get rid of her”;

• He wanted back all of the things she had taken so he could

• burn them so nobody else could have them;

• Killing his wife was on his mind and he could not get rid

• of that thought;

• He told Jennifer that he would burn the house down with

• “them” in it;

• He told Jennifer that there was no death penalty anymore

• and he was ready to go to Kingston;

• He told Jennifer that he had been driving around the

• Henderson home and if his wife had been there that night,

• she would have been dead;

• He told his mother-in-law that his wife better talk to him

• and “I’ll burn the place down with them in it”; he told a

• friend virtually the same thing;

• He told his son that if he had a gun, he would “blow her

• head off”.

[5] On November 2, 1994, Catherine telephoned the appellant. She tape-recorded the call. He made threats to her which were similar to those that he had told to other people, including the threat about being willing to go to Kingston since they do not hang people anymore. He also told her that if she were to get a lawyer involved, she would be signing her own “death warrant”.

[6] In addition to the threats, the appellant began stalking the Henderson home. On November 10th, the appellant broke into the home and stole two dolls that belonged to Catherine. When Jennifer learned of the break-in and confronted the appellant, he told her that Catherine would have been dead had she been there.

[7] At about 3:15 p.m. on November 25th, the appellant met with a friend who worked at a law office and had been helping him try to settle the property issues with his wife. He complained that Catherine was stealing things from the matrimonial home and he said “there is only one thing left for me to do”. He then left and went home. The friend then called Catherine but Catherine was not home. Catherine called the friend back at about 3:30 p.m. and then called the appellant. During the call, the appellant threatened to kill her.

[8] After the telephone call with his wife, the appellant obtained four gasoline containers. He put the containers in his van and drove to a service station where he filled them. The station attendant, who helped the appellant fill the cans, testified that the appellant said he wanted to “make sure that I have enough to do what I’m doing”. He then drove to the Henderson home. It was about 4:00 p.m.

[9] The appellant parked in the driveway and approached the house carrying two gas cans and a sledgehammer. Catherine and Mr. Henderson were both in the house at the time. Catherine called the police while Mr. Henderson picked up a crowbar. The testimony of Catherine and Mr. Henderson is not consistent in all respects as to what next occurred. This is not surprising, given the severity of their injuries. However, in effect, they testified that there was the sound of breaking glass and the appellant began spreading gasoline on the deck of the house or inside the front door. Mr. Henderson confronted him and they began to fight. The appellant began to throw gasoline on Mr. Henderson. Catherine came out of the house and the appellant poured gasoline on her head. Mr. Henderson testified that he heard a “click” and he was instantly engulfed in flames. Catherine testified that she heard a “whoosh” and then she was on fire.

[10] The appellant returned to his van and drove away, apparently towards the hospital since he too had been burned in the fire. The police arrested him on the way to the hospital. The police found a functioning lighter in the van. The lighter was covered with a black film or gummy residue, which could have been from being in the vicinity of a fire.

[11] The Crown called a number of firefighters and neighbours who described the aftermath of the fire and the state of the two victims. Catherine was in a coma for seven weeks and had burns to 40% of her body, including third degree burns to her back, hands, upper chest and neck. Mr. Henderson was in a coma for two months and remained in hospital for another six months. He received burns to 60% of his body. Both victims had to endure long and painful treatment. Both are now significantly disabled. In particular, Mr. Henderson has only 50% of his former hand movement.

[12] During its case in chief, the Crown called Robert Schnurr, an investigator with the Fire Marshall’s office. During examination in chief, he testified that the fire was deliberately set. In cross-examination he resiled from that position and stated that, more accurately, the fire should be classified as undetermined, but suspicious, because he could not specifically determine the ignition source. He stated that with the evidence of gasoline poured into the dwelling and with people being in the dwelling, he did not think the ignition source was all that important.

[13] In cross-examination, Mr. Schnurr was asked to consider accidental sources of ignition such as “arcing” (sparks) from appliances. He considered this unlikely. Counsel also suggested to him that the heating element from baseboard heaters was a possible source of ignition. He originally testified that it was unlikely because the ignition temperature of gasoline is much higher than the maximum temperature of baseboard heaters. He was then shown a study that had been prepared by Armen Kassabian, an engineer in the Fire Marshall’s office, concerning baseboard heaters. That study suggested that baseboard heaters can get to over 300 Celsius.

[14] Mr. Schnurr also acknowledged in cross-examination that prior to the trial he had been contacted by his former boss, Dennis Merkley, who had been retained by the defence. As a result of that call, he had done some further investigation about accidental sources of ignition and, in particular, he spoke to Mr. Henderson and a neighbour about the location of the baseboard heaters in the Henderson home.

[15] The appellant testified on his own behalf. He denied making some of the threats. He claimed that the others were all “empty threats”. He testified that he did not intend to hurt anyone, but only to burn the property that his wife had removed from the matrimonial home. He admitted that he intended to break into the house and to pour gasoline in the house, even if the victims were inside.

[16] His version of the fire was completely different from that of the two victims. He testified that as he approached the house he saw that the door was open so he dropped the sledgehammer. He proceeded up the stairs and put the two gasoline cans down on the porch. Mr. Henderson then came out of the house and hit him several times with the crowbar. They struggled and the appellant freed himself. He grabbed one of the gas cans and started pouring gas through the open door. The gas seemed to flow quickly towards the centre of the house. He did not believe Catherine was in the house since he could not see her. However, about five seconds after he began pouring gas, Catherine came up behind him and grabbed him by his hair. He dropped the empty can and started to turn back. As he turned, he heard a “poosh” sound, then a “whoosh” and a blue flame shot out of the doorway. There was then an explosion as the second gas can, which was near Mr. Henderson, exploded. He and Catherine were showered with gasoline and were on fire. He denied pouring gasoline on the victims or igniting the gasoline. He claimed that he had no source of ignition with him.

[17] The defence called Mr. Merkley. He had been with the Fire Marshall’s officer for 23 years and had impressive credentials. He provided several theories for the “accidental” ignition. He testified that “arcing” occurs when an appliance or thermostat with a poor or worn wiring switches off. The resulting spark can be 2000 to 5000 Fahrenheit. This would be enough to ignite gasoline vapours as their ignition temperature is approximately 280 Celsius, depending on the octane level of the gasoline. He also suggested that the fire could have ignited as a result of the gasoline vapours coming in contact with heat from the baseboard heaters. Mr. Merkely testified that Catherine’s injuries were consistent with the appellant’s explanation of the fire.

[18] The Crown called three witnesses in reply. The Crown did not seek leave to call these witnesses and the defence did not object to their testifying. Accordingly, the trial judge made no ruling as to the admissibility of this evidence. The only real issue on appeal is the admissibility of the expert evidence.

[19] Mr. Henderson was recalled to testify about the location of the baseboard heaters and the thermostat. Mr. Kassabian was then called by the Crown. He testified that Mr. Schnurr had contacted him after he had finished testifying to ask him about his report on baseboard heaters. Mr. Kassabian then attended the trial and sat through part of the appellant’s evidence and all of Mr. Merkley’s evidence. On the morning he was to testify, Mr. Kassabian conducted several tests involving heating elements to very high temperatures in the presence of gasoline. The gasoline did not ignite. A videotape of the experiments was played for the jury. He disagreed with Mr. Merkley’s opinion that the baseboard heaters could have been the source of ignition. He testified that these heaters must meet CSA standards and the temperature of the heating element cannot exceed 294C. The minimum ignition temperature of gasoline is 400C and more likely closer to 456C. He also explained why he thought arcing was “practically impossible” as a source of ignition.

THE CONVICTION APPEAL

The Reply Evidence

[20] The appellant argues that Mr. Kassabian’s evidence was not admissible as reply evidence and that the Crown infringed the rule against splitting its case. That rule was summarized by McIntyre J. in R. v. Krause (1986), 1986 39 (SCC), 29 C.C.C. (3d) 385 (S.C.C.) in the following terms at pages 390-91:

The general rule is that the Crown, or in civil matters the plaintiff, will not be allowed to split its case. The Crown or the plaintiff must produce and enter in its own case all the clearly relevant evidence it has, or that it intends to rely upon, to establish its case with respect to all the issues raised in the pleadings, in a criminal case, the indictment and any particulars ... The underlying reason for this rule is that the defendant or the accused is entitled at the close of the Crown's case to have before it the full case for the Crown so that it is known from the outset what must be met in response. The plaintiff or the Crown may be allowed to call evidence in rebuttal after completion of the defence case, where the defence has raised some new matter or defence which the Crown has had no opportunity to deal with and which the Crown or the plaintiff could not reasonably have anticipated. But rebuttal will not be permitted regarding matters which merely confirm or reinforce earlier evidence adduced in the Crown's case which could have been brought before the defence was made. [Emphasis added.]

[21] Despite this broad language it has always been understood that the trial judge has a discretion to admit evidence in reply concerning an issue that was of only marginal importance during the prosecution's case in chief, but that took on added significance as a result of the defence evidence. This Court has held as an aspect of this “marginally relevant” exception, that the trial judge has a discretion to admit evidence in reply to a matter raised during the cross-examination of Crown witnesses, providing it was not a “live issue” at the end of the Crown's case and the admission of such evidence would not work an unfairness to the accused. See R. v. Sparrow (1979), 51 C.C.C. (2d) 443 (Ont. C.A.) at 455.

[22] A decision of particular assistance is R. v. Campbell (1977), 1977 1191 (ON CA), 38 C.C.C. (2d) 6 (Ont. C.A.), the facts of which are somewhat similar to this case. The accused in Campbell was charged with the attempted murder of his wife. The victim testified that she and the accused went out in their automobile for a drive. At the accused’s direction, she stopped the car in a laneway. They both left the car and, while her back was turned, the accused shot her. She dropped to the ground and he fired at her twice more. He then obtained a gasoline container from the car, spread the gasoline on her and set it on fire with a match. The victim managed to put out the flames by rolling in the snow.

[23] The accused’s version of the events was different. He testified that, in fact, the victim tried to kill him. He testified that they stopped driving because he was having an asthma attack. His wife left the car while he was trying to recover. When he looked up, he saw his wife with a cigarette in her mouth, a gun in one hand and a can of gasoline in the other. He left the car and pleaded with his wife not to kill him. However, she threw gasoline at his face. He saw a bright flash and then felt something fall by his feet. He picked it up, realized it was the gun and fired blindly. Defence counsel had cross-examined the victim on this version of events both at the preliminary inquiry and the trial but she said it was false. In reply, the Crown called a fire research engineer employed at the Ontario Fire College. This witness had conducted certain tests two months before the trial at the request of Crown counsel as a result of the cross-examination of the victim at the preliminary inquiry. The expert had conducted the tests in an attempt to see whether gasoline could be ignited if it were blown back towards a lit cigarette. He concluded that the possibility was remote.

[24] Speaking for the court at p. 29, Martin J.A. held that, although the accused's version of events was “foreshadowed” by the cross-examination of the complainant, “the issue to which the rebuttal evidence of the expert witness was directed did not arise until the appellant testified”. The expert evidence was “not primarily evidence upon which the Crown relied as probative of guilt; rather, it was adduced to refute the case advanced by the appellant in his testimony, supported by the evidence of a defence witness, a mechanic and service station lessee, who testified under the prevailing weather conditions, if a person with a glowing cigarette threw gasoline from a can to another person, there was a ‘good chance’ of the thrower igniting himself as a result of a back-splash of gasoline.” (at p. 29)

[25] Martin J.A. went on to hold at p. 30 that, even if the expert evidence might also have been properly admitted as part of the Crown's case, “its relevance was, at that stage, marginal only, and it was, accordingly, within the discretion of the trial judge to admit it in reply”.

[26] In my view, much the same reasoning applies in this case. As the case stood at the end of the Crown’s case in chief, there was direct evidence that the appellant had poured gasoline on the two victims and, from his own statements to the various Crown witnesses, that he intended to kill them by fire. In those circumstances, the manner in which the gasoline was actually ignited was not primarily evidence upon which the Crown relied as probative of guilt. Admittedly, the question of alternative means of ignition was foreshadowed in the cross-examination of Mr. Schnurr and Mr. Merkley’s pre-trial queries of Mr. Schnurr. The manner of ignition only became a live issue when the appellant testified that he did not throw gasoline on the victims, did not set them on fire and did not light the gasoline in the house.

[27] Had objection been taken at trial to the admissibility of this evidence, it would have been open to the trial judge to exercise his discretion in favour of admitting the evidence. The Crown did not violate the rule against splitting its case. I would not give effect to this ground of appeal.

The Charge to the Jury

[28] The trial judge left two bases for liability for attempted murder depending upon the means the appellant used to carry out his intention to kill. He instructed the jury that the appellant could be found guilty of attempted murder if he intentionally set the victims on fire or if he intentionally set fire to the residence and thereby set fire to the victims. The appellant argues, however, that the need for proof of specific intent was not made clear. The manner in which these two theories of liability were presented forms the basis for this second ground of appeal. The impugned instructions are as follows:

To prove attempted murder the Crown must prove either set of the following elements beyond a reasonable doubt. I am going to give you two different sets of elements. Dealing with the first set the Crown must prove the following beyond a reasonable doubt. First, that the accused intended to kill, in the case of count one, Cathy Quance, and in the case of count two, Garry Henderson. That is that he intended to cause the death by means of the unlawful act of assault, which on an objective basis was dangerous. Secondly, that in each case he set fire to such person for the purpose of carrying out his intention. Thirdly, that in doing so he endangered such person's life. And fourthly, that he did this on or about November 25, 1994 at the Town of Innisfil. The second set of elements which, if proven beyond a reasonable doubt, would require you to convict on counts one or two if so proven are the following. First, that the accused intended to kill, in the case of count one, Cathy Quance, and in the case of count two, Garry Henderson. That is that he intended to cause death by means of the unlawful act of intentionally setting fire to the residence which he knew to be occupied, which on an objective basis was dangerous. Second, that in each case, by setting fire to the residence, he set fire to such person. Thirdly, that in doing so he endangered the life of such person. And fourthly, that he did this on or about the 25th of November, 1994 at the Town of Innisfil. [Emphasis added.]

[29] The trial judge repeated this instruction as part of a response to a question from the jury seeking clarification of the elements of the offences of attempted murder, break and enter and committing attempted murder.

[30] On behalf of the appellant, Ms. Lavine submits that these instructions were needlessly complex and there was a risk that the jury may have convicted the appellant solely on the basis that they found he committed an objectively dangerous act. She submits that the instructions had the effect of obscuring the pivotal issue in the case of whether the appellant intended to kill the victims.

[31] In my view, the trial judge could have simplified the instructions somewhat by eliminating the phrase “which on an objective basis was dangerous”. The trial judge had used this phrase to modify the unlawful act of assault element as part of the first basis for liability and the unlawful act of intentionally setting fire to the residence as part of the second basis for liability. In doing so, he was explaining to the jury that unlawful act homicide requires proof of an objectively dangerous act. See R. v. DeSousa, 1992 80 (SCC), [1992] 2 S.C.R. 944 at 961.

[32] However, no one was contending that either setting fire to the victims or setting fire to the residence was other than an objectively dangerous act. Such a position would have been untenable on this evidence. In the circumstances of this case, it was unnecessary for the trial judge to have left that issue to the jury. Alternatively, if the trial judge wished for the sake of completeness to have set that element out, it would have been preferable for him to deal with it and the other non-contentious elements separately. In this way, he could have focused the jury’s attention on the only real issue, which was the intent to kill.

[33] However, the fact that the trial judge left this issue to the jury, or left it in the manner that he did, does not constitute an error unless the charge was so unnecessarily complex and confusing that it probably diverted the jury from considering the real basis for liability. See R. v. Pintar (1996), 1996 712 (ON CA), 110 C.C.C. (3d) 402 (Ont. C.A.) at 417.

[34] In my view, when the charge is read as a whole, the jury would have been in no doubt that the Crown could not succeed on the attempted murder counts without proving that the appellant intended to kill the victims. In the main part of the charge, after the portion I have set out above, the trial judge extensively reviewed the evidence in relation to the various elements. In that review, he isolated the intent to kill and discussed the evidence that the jury might consider on that issue. That discussion was extensive and made it clear that the Crown had the burden of proving intent to kill and that the position of the defence was that the accused did not intend to cause death.

[35] Accordingly, I would dismiss the appeal from conviction.

The Sentence Appeal

[36] The trial judge heard evidence and submissions concerning sentence over two days. He delivered his reasons for sentence the following day. He heard extensive evidence of the impact of the offences on the victims and their families. He was presented with a vast amount of documentary and viva voce evidence about the appellant. This evidence was impressive. It showed that until the fall of 1994, the appellant had been a good father, grandfather and husband. He was hard working and respected in the community. He was described as generous, quiet and caring. The defence also presented a psychiatric assessment to the effect that at the time of the offences, the appellant was likely suffering from an adjustment disorder and that he now presented a low risk to re-offend. By all accounts, these offences were an aberration.

[37] The trial judge gave the appellant credit for three years in view of the eighteen months of pre-trial custody. He then imposed a sentence of fourteen years' imprisonment. Thus, the trial judge imposed an effective sentence of seventeen years. The appellant argues that this sentence is excessive.

[38] The fundamental principle of sentencing is set out in s. 718.1 of the Criminal Code: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. In determining the gravity of the offence and the degree of responsibility of the appellant, the trial judge had to make certain findings of fact in accordance with s. 724(2) of the Criminal Code, which provides as follows:

(2) Where the court is composed of a judge and jury, the court

(a) shall accept as proven all facts, express or implied, that are essential to the jury's verdict of guilty; and (b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.

[39] The trial judge reviewed the evidence of the many threats by the appellant and the appellant’s actions on the day of the offences. He concluded that the crimes were “planned and deliberate”. The appellant does not suggest that this finding was not open to the trial judge and, in my view, it is virtually the only reasonable inference from all the evidence. For weeks, the appellant had been threatening to kill his wife and to do so by fire. On the day of the offence, he purchased large quantities of gasoline. He knew his wife was at the Henderson home and he knew within seconds of his arrival that Mr. Henderson was also home. He poured gasoline on them. He has left his wife and her companion with permanent disabilities and lifelong pain and suffering. The trial judge described the offences as horrific.

[40] On the findings made by the trial judge, this was in effect an attempted first degree murder. The gravity of the crime could only have been greater if the victims had died. The appellant’s degree of responsibility was also very high. The psychiatric report, aside from indicating an “adjustment disorder with mixed disturbance of emotions and conduct”, offered no psychiatric explanation for this conduct. The appellant’s faculties were not impaired.

[41] This is pre-eminently a case where this court should show deference to the trial judge. He had presided over the trial where the victims and the appellant testified. He then heard extensive evidence and submissions on sentencing. While the sentence imposed was high and perhaps even at the upper end of the range, given the appellant’s previous good character and the pre-trial custody, I cannot say that it is so excessive as to justify intervention by this court: R. v. Shropshire (1995), 102 C.C.C. (3d) 193 (S.C.C.). In that respect, I note that the sentence of the accused in Campbell was reduced from twenty-five years to fifteen years by this court. That case involved only one victim, less serious injuries and, remarkably, the accused and the deceased appeared to have reconciled to some extent prior to the trial.

DISPOSITION

[42] Accordingly, I would dismiss the appeal from conviction. I would grant leave to appeal sentence, but dismiss the appeal from sentence.

(signed) "M. Rosenberg J.A."

(signed) "I agree J. J. Carthy J.A."

(signed) "I agree K. Feldman J.A."

RELEASED: June 16, 2000