DATE: 20030612

DOCKET: C37305 C37536

COURT OF APPEAL FOR ONTARIO

LASKIN, MacPHERSON and GILLESE JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Alan Gold, for the appellant/respondent Josef Hirnschall

Respondent/Appellant

• and -

JOSEF HIRNSCHALL

Tina Yuen, for the respondent/appellant Her Majesty the Queen

Appellant/Respondent

Heard: May 20, 2003

On appeal by Josef Hirnschall from the conviction imposed by Justice Panet of the Superior Court of Justice, sitting with a jury, dated November 6, 2001, the Crown seeking leave to appeal against the sentence imposed by Justice Panet on December 11, 2001.

LASKIN J.A.:

A. Introduction

[1] On October 13, 1998, the Rooney Hotel, a local landmark in the town of Eganville, burned to the ground. The appellant, Mr. Hirnschall, was charged with intentionally or recklessly setting the fire. He pleaded not guilty and was tried by a jury. He represented himself.

[2] The Crown presented a strong, if not overwhelming, case. Mr. Hirnschall held a $250,000 first mortgage on the hotel. The owner of the hotel had gone bankrupt and the property had no equity. Mr. Hirnschall and his family were the beneficiaries under the hotel’s insurance policy in an amount that exceeded the mortgage debt. The policy would have expired the day after the fire.

[3] The evening of the fire, the appellant was seen going to and from the hotel in a conspicuous disguise. He twice went into a shed at the back of the hotel ‑ the exact spot where the fire started. The door to the shed was locked both before and after the fire. The appellant had a key. The expert evidence ruled out accidental causes of the fire.

[4] Mr. Hirnschall testified and denied that he had set the fire. The jurors obviously rejected his denial. They convicted him of arson. The trial judge imposed an eighteen month conditional sentence, on lenient terms, which permitted Mr. Hirnschall to spend about eight months of his sentence with his family in Austria. He has now served his sentence.

[5] The appellant appeals against his conviction and seeks either an acquittal or a new trial. The Crown cross-appeals against Mr. Hirnschall’s sentence. It asks that he be incarcerated and that he be ordered to pay restitution. For the reasons that follow, I would dismiss both the appeal and the cross-appeal.

B. The Conviction Appeal

[6] The appellant argued five grounds of appeal. We called on the Crown only on the first ground: the appellant’s submission that “oath helping” infected the trial and the trial judge neither stopped it nor warned the jury to disregard it.

[7] This submission refers to two pieces of evidence: the opinion evidence of one of the police officers, Sergeant Leppert; and the appellant’s six‑hour videotaped interview, which the trial judge ruled was given voluntarily and, thus, went to the jury.

[8] Several times during his cross-examination of Sergeant Leppert the appellant elicited from the witness an opinion on his own guilt. In answer to these questions, Sergeant Leppert testified that the appellant was guilty of the offence of arson. He said that he believed the appellant had intentionally set the fire and had tried to get rid of his disguise.

[9] The appellant argued that this opinion evidence was improper and prejudicial and that the trial judge should have either curtailed the questioning or, at a minimum, instructed the jury to disregard the evidence.

[10] I agree that the opinion evidence should not have been admitted. As the appellant was self‑represented, it would have been preferable had the trial judge intervened to prevent Mr. Hirnschall from pursuing a line of questioning that was not helping him.

[11] But it seems to me that the trial judge’s failure to do so neither amounted to an error of law nor prejudiced the appellant. It was not an error of law because, as Hill J. commented in R. v. Romanowicz, [1998] O.J. No. 12 (Gen. Div.) at para. 34 aff’d on other grounds 1999 1315 (ON CA), 138 C.C.C. (3d) 225 (C.A.), though a trial judge is obliged to provide reasonable assistance “at the end of the day… the unrepresented accused has the right to make strategic decisions and to defend himself or herself at whatever level of competence and effectiveness the accused brings to the case.”

[12] Sergeant Leppert’s opinion evidence did not prejudice the appellant for several reasons:

• later in his testimony, in answer to yet another question trying to elicit his opinion about the appellant’s guilt, Sergeant Leppert made it clear that “… my job, sir, is not to determine your innocence or guilt. My job is to bring the facts to the court and to allow the court and the trier of fact to determine your innocence and guilt. You have not been found guilty at this point.”

• On four other occasions when the appellant embarked on a similar line of questioning with other witnesses, the trial judge did intervene to pre‑empt any opinion about the appellant’s guilt. Each time the trial judge stated either that the question was inappropriate or that it was a matter for the jury to decide.

• Midway though Sergeant Leppert’s cross-examination, the trial judge instructed the jury on the presumption of innocence and the Crown’s obligation to prove guilt beyond a reasonable doubt.

• The Crown did not rely on Sergeant Leppert’s evidence or otherwise draw the jury’s attention to it. Indeed, in her closing address, the Crown did not even mention Sergeant Leppert’s name.

• In his final instructions, the trial judge explained that the jury was the sole arbiter of the facts and that they must decide guilt or innocence on their assessment of the evidence alone.

Thus, although Sergeant Leppert’s opinion evidence was not admissible, it did not prejudice the appellant’s right to a fair trial. I turn to the appellant’s video‑taped interview.

[13] During this lengthy interview, the police officers asked the appellant many questions that were in the nature of cross‑examination. These questions were invariably leading and, in most instances, suggestive of the appellant’s guilt. On appeal, Mr. Gold contended that the jury should have been given a strong warning not to infer guilt from the tenor of the police’s questions.

[14] Although it would have been better had the trial judge given the warning argued for by Mr. Gold, again I am not persuaded that the trial judge’s failure to do more than he did amounted to reversible error. The instructions that he did give were adequate to remove any real risk of prejudice from the way the police questioned the appellant. I would, therefore, not give effect to this first ground of appeal.

[15] I shall deal briefly with the appellant’s other four grounds of appeal. The appellant submitted that the verdict was unreasonable. He pointed to the absence of any gasoline odour on his clothing and the police’s failure to find an accelerant. In the face of an otherwise very powerful Crown case, these two points do not make out an unreasonable verdict.

[16] The appellant also submitted that the trial judge erred in refusing to grant him an adjournment to call two witnesses on his change of venue application and then erred in dismissing the application. Both decisions were within the trial judge’s discretion. We found no reviewable error in his exercise of discretion.

[17] The appellant further submitted that the trial judge erred in failing to advise him that he was entitled to call his own expert on the cause of the fire. We found no error here. The appellant extensively cross‑examined the Crown’s expert and called evidence in his own defence. It defies common sense that he did not know of his right to call an expert.

[18] Finally, the appellant submitted that the trial judge erred either in failing to permit him to address the jury last as he had requested, or in failing to tell him of his right to ask to reply to the Crown’s closing. The appellant called a defence. Thus, under s. 651 (3) of the Criminal Code, he was required to address the jury first. Although in R. v. Rose (1998), 129 C.C.C. (3d) 449 (S.C.C.) at para. 136, the Supreme Court of Canada recognized that a trial judge has discretion to permit an accused to reply to a Crown address “in the clearest cases of unfairness”, we found no unfairness here. Throughout the trial the Crown made its theory of liability abundantly clear to the appellant and the Crown’s closing was not marked by any impropriety.

[19] I would, therefore, dismiss the appellant’s conviction appeal. Before turning to the sentence appeal, I think it should be said that the trial judge greatly assisted the appellant throughout the trial. On several occasions this court has said that a trial judge has a duty to provide reasonable assistance to a self‑represented litigant. The trial judge more than met that duty.

C. The Crown’s Cross‑Appeal on Sentence

a) Did the trial judge err in imposing a conditional sentence?

[21] Mr. Hirnschall was 58 years old when he was sentenced. He had been diagnosed with an untreatable brain aneurysm. He had no previous criminal record. The trial judge found that Mr. Hirnschall was not a risk to re‑offend and that serving his sentence in the community would not endanger its safety. The trial judge also concluded that serving the sentence in the community was consistent with sentencing principles of denunciation and general deterrence. He rejected the Crown’s request for a reformatory term. Instead, he imposed an eighteen‑month conditional sentence, less two months credit for pre‑trial custody.

[22] The conditions were not onerous. Mr. Hirnschall was ordered to perform one hundred hours of community service. He was confined to his house only between 6:00 p.m. and 8:00 a.m., which meant he could leave during the day. He was permitted to leave the country with his supervisor’s permission. Indeed, the trial judge added “in my view it would be reasonable for you to leave to jurisdiction or leave the country if necessary for you to obtain treatment for your medical condition”. Mr. Hirnschall took advantage of this condition. The week after he was sentenced, with his supervisor’s permission, he went to Austria where his family lived for three and a half months. He did the same thing the following winter. Therefore, he spent about one half of his conditional sentence out of the country. He completed serving his conditional sentence a few months ago.

[23] The Crown, nonetheless, submitted that we should now sentence Mr. Hirnschall to a short jail term. In support of this submission, Ms. Yuen contends that we should give less credit for the conditional sentence than we otherwise would because Mr. Hirnschall spent so much of the sentence out of the country.

[24] I have little doubt that the conditional sentence was “demonstrably unfit” when it was imposed. I agree with the Crown that it did not reflect either the gravity of the offence or Mr. Hirnschall’s moral blameworthiness. The catalogue of considerations in favour of a jail term was overwhelming. Mr. Hirnschall destroyed a local landmark; he put the lives of several fire fighters at risk; the fire destroyed one business and caused financial hardship to many others; and Mr. Hirnschall committed the offence entirely out of greed, his desire to reap the benefits of the insurance proceeds.

[25] Moreover, other than the absence of a previous criminal record, little can be said in mitigation. Mr. Hirnschall has shown no remorse. He led no evidence to suggest jail posed any greater risk to his health. The trial judge ought to have sentenced him to a term of imprisonment.

[26] Indeed, a conditional sentence for Mr. Hirnschall seems out of step with the recent judgments of this court in arson cases. An example is R. v Fox, [2002] O.J. 2496 (Ont. C.A.), a seemingly less serious arson. In that case, after a night of drinking, the youthful accused pushed a parked car into a lamppost with his truck, broke into a cottage and inadvertently set it on fire. The cottage was not occupied but its owner was elderly and had not insured either the building or the content. The damage was estimated at $10,000 to $15,000.

[27] The accused was sentenced to a twelve‑month conditional sentence. Because of the accused’s current employment out of the province, the panel saw “no good purpose” in converting the conditional sentence to a custodial sentence. Nonetheless, the panel observed at para. 3 that “the sentence imposed by the trial judge was unfit for such a serious offence”, and increased the conditional sentence to twenty months.

[28] Even if a conditional sentence for Mr. Hirnschall were appropriate, the conditions themselves were demonstrably unfit. If the public is to have confidence in the conditional sentencing regime, the conditions must have teeth. This court and the Supreme Court of Canada have repeatedly said that the conditions must include reasonable restrictions on an offender’s liberty. See, for example, R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; R. v. Dalton, [2001] O.J. No. 4290 (C.A.) at para. 1; R. v. Smith, [1999] O.J. No. 2694 (C.A.) at para. 11. The conditions imposed on Mr. Hirnschall were virtually meaningless.

[29] That said, we must decide whether it is now appropriate to accede to the Crown’s submission and incarcerate Mr. Hirnschall. As in other cases, the passage of time works against the Crown’s position. Mr. Hirnschall has served his sentence. I see no merit in the Crown’s contention that the credit Mr. Hirnschall receives for having served his sentence should be reduced because of the lengthy period of time he spent in Austria. Mr. Hirnschall served the sentence he was ordered to serve. The conditions of his sentence permitted him to travel to Austria for medical treatment with his supervisor’s permission. He sought and obtained that permission. The Crown has not alleged that in travelling to Austria he breached any condition of his sentence. Mr. Hirnschall’s trips abroad cannot be held against him.

[30] Giving him full credit for having served his sentence and bearing in mind the trial Crown sought no more than a reformatory term, I do not consider it now in the public interest to incarcerate Mr. Hirnschall. I would, therefore, not give effect to this part of the Crown’s sentence appeal.

b) Did the trial judge err in failing to order restitution?

[31] The Crown also contended that the trial judge erred in failing to make restitution orders for the financial losses suffered by the business tenants in the hotel. In my view, the trial judge did not err. The Crown did not prove the facts needed to support orders for restitution.

[32] In this court the Crown sought restitution orders for the following losses:

a) a $500 deductible paid by one tenant to its insurer;

b) $21,919.18 paid by Dominion of Canada to its insured, another tenant in the building; and

c) the sums of $48,167.00 and $43,724.95 paid by the Co-Operators to two insureds who were also tenants in the building.

[33] These amounts represent losses sustained because of the fire. But under s. 738 (1)(a) of the Criminal Code, the court’s jurisdiction to make a restitution order is circumscribed. “In the case of damage to, or the loss or destruction of, property of any person as a result of the commission of the offence,” a restitution order is limited to “an amount not exceeding a replacement value of the property”. The Crown led evidence of loss. It led no evidence of replacement value. Typically, businesses are insured for losses in addition to the replacement value of their property. Yet the Crown did not put the relevant insurance policies in evidence. It provided little or no breakdown of the amounts paid by the insurers. Although restitution orders would have been entirely appropriate in this case, because of the lack of proof, I see no basis to make them.

D. Disposition

[34] I would dismiss both the appeal and the cross‑appeal.

RELEASED: June 12, 2003

“John Laskin J.A.”

“I agree J. C. MacPherson J.A.”

“I agree E. E. Gillese J.A.”