Her Majesty the Queen v. Hazel [Indexed as: R. v. Hazel]
95 O.R. (3d) 241
Court of Appeal for Ontario,
Rosenberg, Simmons and Lang JJ.A.
May 7, 2009
Criminal law -- Evidence -- After-the-fact conduct -- Concocted alibi and other lies told by accused -- Accused convicted of first degree murder and arson after his wife died in fire at their home -- Accused claiming that deceased committed suicide -- After being charged accused voluntarily giving detailed statement to insurance adjuster amounting to alibi and also suggesting explanation for gasoline being found in home after fire to support accused's position that fire was accidental -- Accused admitting lying to adjuster about possible accidental cause of fire to collect insurance proceeds -- Circumstances in which alibi was provided and detail provided by accused at pre-arranged interview capable of constituting independent evidence of fabrication -- Jury entitled to take into account admitted lie about alternative cause of fire when deciding whether alibi was concocted.
Criminal law -- Trial -- Charge to jury -- Burden of proof -- Accused convicted of first degree murder and arson after his wife died in fire at their home -- Accused claiming that deceased committed suicide -- Charge to jury making it clear that they did not have to simply choose between accepting accused's evidence about deceased's state of mind or accepting Crown evidence that accused deliberately set fire -- Jury also properly instructed that accused was entitled to acquittal if they did not believe his evidence but had a reasonable doubt as to whether deceased committed suicide.
The accused was convicted of first degree murder and arson. His wife died in a fire that was deliberately set in their home. The defence position was that the deceased set the fire as an act of suicide. The Crown relied on evidence of motive and opportunity and upon a substantial body of after-the-fact conduct. By the end of the trial, the defence agreed that only the accused and his wife had an opportunity to set the fire. After he was charged with the offences, the accused chose to give a lengthy and detailed statement to an insurance adjuster, for which he had an opportunity to prepare. He testified that he lied when he told the adjuster that gasoline had spilled in the garage on the day of the fire and that his children had walked through the gasoline and then through the house, leaving gasoline on the carpet. He testified that he lied because he would not get the insurance proceeds if the adjuster knew the deceased had deliberately set the fire. He also gave the adjuster a detailed outline of his whereabouts on the morning of the fire that amounted to an alibi. The accused testified that to the extent that the chronology of his actions was incorrect, he was merely mistaken, not lying. The accused appealed his convictions, submitting that the trial judge did not adequately direct the jury with respect to after-the-fact conduct and misdirected the jury with respect to the defence theory of suicide.
Held, the appeal should be dismissed.
There is a distinction between a statement that is disbelieved and one that is concocted or deliberately fabricated. It is only where there is independent evidence of fabrication that a false out-of-court statement is capable of supporting an inference of guilt. The accused admitted that he lied to the adjuster about the [page242] children tracking gasoline through the house before the fire. If the jury rejected his explanation for that fabrication, this lie was a significant piece of circumstantial evidence. The accused did not admit concocting the account of his whereabouts on the morning of the fire, asserting that he was merely mistaken if any part of his chronology was incorrect and arguing that, even if the jury disbelieved this portion of his statement, there was no evidence that he had concocted an alibi. As the jury was instructed, the circumstances in which a statement is given can sometimes constitute independent evidence of fabrication. The circumstances under which the statement was made, including the accused's advance notice of and opportunity to prepare for the meeting with the adjuster, and the level of the detail in the statement itself were capable of constituting independent evidence of fabrication. Moreover, in deciding whether the alibi was concocted, the jury could take into account the admitted lie about the children tracking gasoline into the house. The fabricated story and the alibi were closely connected as they went to the core issue of who set the fire. The jury could find that both stories were intended to deflect suspicion from the accused, were part of a carefully thought out plan and were evidence of a mind conscious that he had set the fire.
The charge to the jury would not have left them with the belief that they had only two alternatives: accepting the accused's evidence of the deceased's state of mind on the day of the fire, or accepting the prosecution evidence that the accused deliberately set the fire. The trial judge gave the jury complete instructions on the presumption of innocence, the burden of proof beyond a reasonable doubt and the application of reasonable doubt to credibility, including an instruction that the accused did not have to prove that the deceased did commit suicide and that the Crown had to prove beyond a reasonable doubt that she did not commit suicide. It was not realistic to believe that the jury would have convicted the accused of a planned and deliberate murder if they were unsure how the deceased died.
APPEAL from the conviction entered by G.I.A. Thomson J. of the Superior Court of Justice, sitting with a jury, dated May 31, 2003 for first degree murder and arson.
Cases referred to R. v. O'Connor (2003), 2002 CanLII 3540 (ON CA), 62 O.R. (3d) 263, [2002] O.J. No. 4410, 166 O.A.C. 202, 170 C.C.C. (3d) 365, 7 C.R. (6th) 205, 100 C.R.R. (2d) 164, 56 W.C.B. (2d) 61 (C.A.), apld Other cases referred to R. v. Henderson (1999), 1999 CanLII 2358 (ON CA), 44 O.R. (3d) 628, [1999] O.J. No. 1216, 120 O.A.C. 99, 134 C.C.C. (3d) 131, 42 W.C.B. (2d) 138 (C.A.); R. v. Nimchuk, 1977 CanLII 1930 (ON CA), [1976] O.J. No. 1258, 33 C.C.C. (2d) 209, 1 W.C.B. 122 (C.A.); R. v. Peavoy (1997), 1997 CanLII 3028 (ON CA), 34 O.R. (3d) 620, [1997] O.J. No. 2788, 101 O.A.C. 304, 117 C.C.C. (3d) 226, 9 C.R. (5th) 83, 35 W.C.B. (2d) 375 (C.A.); R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, 122 N.R. 277, J.E. 91-603, 46 O.A.C. 352, 63 C.C.C. (3d) 397, 3 C.R. (4th) 302, 12 W.C.B. (2d) 551
P. Andras Schreck and Mara Greene, for appellant. Shawn Porter, for respondent.
[1] BY THE COURT: -- On this appeal from conviction for first degree murder and arson by Thomson J. and a jury, the appellant raises two grounds of appeal. He submits that the trial judge did not adequately direct the jury with respect to [page243] after-the-fact conduct and misdirected the jury with respect to the "defence" of suicide. For the following reasons, the appeal is dismissed.
The Facts
[2] On January 9, 2001, a fire occurred at the home the appellant shared with his wife Charlene and their children. The children were at school at the time of the fire. Charlene died in the fire. By the end of the trial, there was no dispute that the fire had been deliberately set. The issue was whether the Crown had proved beyond a reasonable doubt that the appellant set the fire. The defence position was that the deceased set the fire. The defence suggested that the deceased set the fire as an act of suicide and revenge.
[3] The prosecution case was formidable. The location of the fire and the position of the body made any possibility of accident extremely unlikely. Similarly, the suicide theory, which depended almost entirely on the appellant's evidence, was a weak one. Firefighters arrived at the home within minutes of the fire being seen by neighbours. They found the deceased lying naked in the bedroom in circumstances suggesting that she had just come from a bath.
[4] The Crown also relied on evidence of motive. The appellant had just lost his employment and was in serious financial straits. He had recently increased the insurance on the deceased's life. He was in a relationship with another woman and wanted to leave the deceased. In the weeks prior to the fire, the appellant had moved some of his most important possessions, in particular, a cherished automobile, away from the house.
[5] There was evidence of opportunity. There was no contest that only the deceased and the appellant had the opportunity to set the fire. The prosecution adduced evidence from neighbours showing that the appellant left the house a short time before the fire was discovered. On the other hand, the appellant testified and not only denied setting the fire but claimed that he had left the house at a time inconsistent with when the fire must have been set.
[6] Finally, the Crown relied upon a substantial body of after-the-fact conduct. For example, after the fire, the appellant instructed the woman with whom he had an intimate relationship to destroy the clothing that he had left at her house. The appellant explained that he knew she wanted to keep the relationship private and that he was also feeling guilty about the affair. Several weeks later, after the appellant was charged with [page244] setting the fire and murdering his wife and while he was in custody, the appellant chose to give a lengthy and detailed statement to an insurance adjuster that contained several lies or mistakes. One admitted lie was that he told the adjuster that on the day of the fire, gasoline had spilled in the garage. He said that the children had walked through the gasoline and then walked through the house, leaving gasoline on the carpet. The appellant speculated that the deceased might have set the fire when she accidentally knocked a candle over and onto the carpet. The appellant admitted this was untrue. He explained that he told the lie because if the insurance adjuster knew the deceased had deliberately set the fire, he would not get the insurance proceeds.
[7] The appellant also gave the adjuster a detailed outline of his whereabouts during the morning of the fire. The appellant gave a somewhat similar chronology at trial and claimed that any discrepancies in the statement were simply the result of confusion or mistake. It was open to the jury to find that the chronology in the appellant's statement to the insurance adjuster was wrong and it was the theory of the prosecution that the appellant had concocted the chronology to show that he was away from the house at the time the fire was started.
[8] The defence position on suicide by the end of the trial rested on the appellant's evidence that on the morning of the fire he had a serious argument with the deceased. He told her that she would get nothing when they divorced, that she would have to leave the house and that the children would stay with him. She responded that she would burn the house down before he would get anything. The deceased was livid and not making any sense. It was the defence position that the deceased, despondent at the end of the marriage and the prospect of losing her house and children, set the fire to commit suicide and deprive the appellant of the house. There was little other evidence to suggest that the deceased was in a suicidal state of mind. Although there was some evidence from her family and acquaintances suggesting that she was upset over certain issues, taken as a whole, such evidence did not suggest that she was so despondent as to be suicidal.
[9] While this is a relatively brief review of the facts, it will suffice for the purposes of understanding the two grounds of appeal.
Analysis
1. The trial judge's expression of opinion
[10] In his factum, the appellant raised as a ground of appeal the trial judge's strong expression of opinion in his charge to the [page245] jury about the appellant's lack of credibility. In oral argument, Mr. Schreck did not raise this as an independent ground of appeal, conceding that on its own, this ground of appeal could not succeed. We have, however, taken the entire charge into account, including the trial judge's expression of opinion, in considering the remaining two grounds of appeal.
2. The charge to the jury on after-the-fact conduct
[11] After-the-fact conduct was an important aspect of the prosecution case. The principal complaint by the appellant is that the charge to the jury did not make clear the distinction between mere disbelief of the statement to the insurance adjuster and fabrication or concoction. Only if the jury found that the statement to the insurance adjuster was fabricated was it capable of constituting circumstantial evidence of guilt: R. v. O'Connor (2003), 2002 CanLII 3540 (ON CA), 62 O.R. (3d) 263, [2002] O.J. No. 4410 (C.A.).
[12] The appellant also submits that the charge would have left the jury with the impression that if they disbelieved the appellant's trial evidence, that too could constitute after- the-fact conduct. We see no merit to that submission. The appellant relies on several words in a very long passage dealing with after-the-fact conduct. When that passage is considered with other parts of the charge, it would have been obvious to the jury that the trial judge was discussing the crucial statement to the insurance adjuster and not the appellant's trial evidence.
[13] In O'Connor, the court dealt with the approach to using out-of-court statements as circumstantial evidence of guilt. The court noted that there is a distinction between a statement, in that case a statement of an alibi, that is disbelieved and one that is concocted or deliberately fabricated. Importantly, mere disbelief of an alibi is not alone sufficient to found an inference of fabrication. It is only where there is independent evidence of fabrication that a false out-of-court statement is capable of supporting an inference of guilt. In some circumstances, there will be clear independent evidence of concoction. This case provides an example. In his testimony, the appellant admitted that he lied to the adjuster about the children tracking gasoline through the house in order to cover up any deliberate acts by his wife that might have caused the fire and that would jeopardize the insurance coverage. It was for the jury to decide what weight to give to his explanation. If the jury rejected the explanation for this fabrication, this was a significant piece of circumstantial evidence.
[14] The issue of the alibi was more complicated. The defence position was that to the extent the alibi set out in the statement [page246] was inconsistent with other evidence accepted by [the] jury, the appellant was simply mistaken. The appellant submits that there was no independent evidence of concoction or fabrication. The appellant's submissions concerning the adequacy of the charge on after-the-fact conduct centre on the trial judge's treatment of the alibi.
[15] At trial, the Crown founded its theory of fabrication of the alibi on the holding in O'Connor that the circumstances in which the statement is given can themselves constitute independent evidence of fabrication. The court explained the reasoning as follows, at para. 26:
The circumstances in which a false statement is made may show an intent to mislead the police or others or an intent to deflect suspicion and may be evidence of a conscious mind that he or she has committed an offence. When a court is addressing the admissibility of evidence contradicting an accused's out-of-court statement, it will be required to determine if there is independent evidence of fabrication, but in doing so, the court may consider the circumstances in which the allegedly false statement was made. If those circumstances tend to support a conclusion that the accused made a false statement because he or she was conscious of having committed the offence, then those circumstances may be used as independent evidence of fabrication.
[16] The court, at para. 31, explained how in that case the circumstances were capable of constituting independent evidence of fabrication:
In this case, it is my view that the circumstances in which the appellant made the allegedly false statements to the police and the detailed nature of those statements constitute sufficient evidence upon which a jury could conclude that the appellant fabricated the statements in order to mislead the police and divert suspicion from himself. His first statement was made the same day as the shooting and, importantly, was made to the police at a time when the police did not suspect the appellant and the appellant did not have reason to believe that he was a suspect. The police, as a matter of routine, questioned witnesses who might have information about the deceased's whereabouts prior to the shooting. The appellant's initial statement furnished a complete alibi and, if true, would lead the police to conclude that he was not involved in the offence. That statement and the next two statements were very precise, both as to the appellant's whereabouts and the times he was in the various places. If the jury were to disbelieve the appellant's statements, they might fairly ask why would the appellant tell such detailed and specific lies to the investigators. Why not tell the truth? And how was it that the appellant was so well prepared with a detailed and precise statement about his whereabouts when questioned by the police? In my view, it would be open to a jury to use the evidence of the circumstances surrounding the making of those statements and the nature of the statements themselves to conclude that the appellant fabricated the statements to avoid suspicion. (Emphasis added) [page247]
[17] The appellant submits that the circumstances in this case are far removed from O'Connor and not capable of constituting independent evidence of fabrication. He points out that when he gave the statement he was not a mere witness, but was charged with first degree murder and there could be reasons why he lied that were inconsistent with guilt, such as a fear of being wrongly convicted. The trial judge charged the jury as follows:
There is a difference between evidence leading only to disbelief of an accused statement and independent evidence of fabrication and concoction determined from the circumstances of the taking of the statement and the detail in it. Simply because the alibi is disbelieved that fact can't be used to draw a negative inference in the absence of the finding of fabrication and concoction.
Now what that means is you've got to look at the circumstances of the taking of the statement which means when, where, situation, all of that sort of thing and the detail in the statement, in other words, how precise perhaps it might be. Exact. Now the circumstances surrounding the taking of the statement by Ebel on the 28th went something like this.
[18] The trial judge then went on to set out at length the circumstances under which the statement was made. He noted, for example, that the appellant was well aware of the purpose of the interview, had made the arrangements for when the adjuster would interview him, was aware of discussions between his counsel and the adjuster, knew he was facing charges of arson and first degree murder and had plenty of time to reflect upon the events that he was going to talk about. The statement itself was very detailed and the appellant gave a precise account of his movements on the day of the fire in terms of times and where he went. The statement was detailed in other respects, not alleged to be false, such as the state of his finances.
[19] After setting out the chronology of events as set out in the statement, the trial judge concluded his instructions as follows:
So there appears to be 2 different versions of where and when he was at different places on the morning of the fire. To be clear to you it is not evidence establishing the falsity of the statement which constitutes the evidence of fabrication. Rather it is the evidence of the circumstances in which the disbelieved statements were made and the detailed nature of those statements which is capable of furnishing the independent evidence of fabrication and concoction.
You may well be able to determine that he was well prepared with the detailed and precise statement about his whereabouts when he was questioned by Ebel [the insurance adjuster]. It is open to you to use the evidence of the circumstances surrounding the making of the statement and the nature, the precision and detail themselves to conclude that the appellant fabricated the statement to avoid suspicion. It is for you to decide if he made his comments to Ebel at that time knowing full well that they would deceive and mislead the police as well as the insurance adjuster. If you find that he [page248] spoke about all kinds of things and did so with considered detail precision and accuracy then that raises the question why would he not be accurate in his evidence about the time and place that he was when he spoke to Ebel on the 28th of February, that is, his recall was excellent about all the details so why would he be mistaken about where he was and when he was unless if it was fabricated to mislead or deceive.
You are the ones to determine if Hazel knew when he gave the statement to Ebel that he was making a claim for insurance and in effect was providing an alibi for both the murder and the claim for insurance. He had to be consistent for both situations. He had to be somewhere else when the fire started and he had to explain how the accelerant had to be in the house and how the fire started with the candle. (Emphasis added)
[20] In our view, the circumstances under which the statement was made, including the advance notice of and opportunity to prepare for the meeting with the adjuster, were capable of constituting independent evidence of fabrication. In the first place, the circumstances referred to by the trial judge diminish the possibility of mistake or inadvertence. The appellant not only misled the adjuster as to the sequence of events, which of itself may have been of no moment, but he also attempted to change the chronology of events to have begun almost an hour earlier. It would be open to the jury to conclude that the appellant did so deliberately to distance himself from the igniting of the fire and to account for the time needed to dispose of whatever he used to light the fire. We are also of the view that in deciding whether the alibi was concocted, the jury could take into account the admitted fabrication of the story about the children tracking gasoline into the house. The fabricated story and the alibi were closely connected as they went to the core issue of who set the fire. The jury could find that both stories were intended to deflect suspicion from the appellant and were part of a carefully thought out plan and, to paraphrase the words of O'Connor above, showed an intent to mislead or to deflect suspicion and were evidence of a mind conscious that he had set the fire.
[21] The appellant also submits that the trial judge erred in failing to outline the appellant's explanations. We agree that when reviewing the admitted lie about the gasoline being tracked through the house, the trial judge should have reminded the jury, at that point, about the appellant's explanation. However, the trial judge had already fully outlined the explanation during his lengthy review of the appellant's testimony. Although it would have been preferable had the trial judge also reviewed the appellant's explanation for the discrepancies that he made some mistakes in his statement to [page249] the insurance adjuster about the timing of events on the morning of the fire when dealing with the concoction issue, the trial judge referred to this explanation later when setting out the position of the defence.
[22] The appellant submits that the trial judge should have also provided the jury with alternative explanations for the appellant's false statements to the insurance adjuster. As this court said in R. v. Peavoy (1997), 1997 CanLII 3028 (ON CA), 34 O.R. (3d) 620, [1997] O.J. No. 2788 (C.A.), at p. 629 O.R.:
[After-the-fact conduct] can only be used by the trier of fact in this manner if any innocent explanation for the conduct is rejected. That explanation may be expressly stated in the evidence, such as when the accused testifies, or it may arise from the trier of fact's appreciation of human nature and how people react to unusual and stressful situations.
[23] The only explanations for the false statements that arose from the evidence were that the appellant wanted to deflect suspicion from the deceased having deliberately set the fire, and mistake. The appellant's explanations were simple and straightforward. He did not want to jeopardize his insurance claim, so he lied about the children tracking in the gasoline. Further, he was confused about the times and sequence of events and, like some of the Crown witnesses, made mistakes about the times that things happened.
[24] The appellant submits that the trial judge should also have speculated for the jury that there may have been other reasons for the lies to the adjuster, such as that the appellant was under stress and, although innocent, was fearful that no one would believe him. We do not accept this submission. The appellant did not raise this objection at trial. Given the explanations actually advanced by the appellant and the circumstances surrounding the statement (a statement to an insurance adjuster as opposed to the police given several weeks after the fire), we fail to see how it would have benefited the defence for the trial judge to speculate about other explanations that were not advanced at trial and could not reasonably be inferred from the evidence.
3. The suicide theory
[25] The appellant submits that taken as a whole, the charge to the jury left the jury with the impression that the appellant had to establish that the deceased committed suicide. Alternatively, it is submitted that it was never made clear that the jury did not have to decide whether or not the deceased committed suicide; if in the end they simply were unsure how the deceased died, then the appellant had to be acquitted. The [page250] appellant submits that possible confusion about the burden of proof was exacerbated by some of Crown counsel's cross-examination.
[26] We will deal with the cross-examination point first. The appellant submits that it was improper for Crown counsel to ask the appellant to comment on the deceased's state of mind. An example of the kind of question to which objection is taken is this:
Q. Now, Mr. Hazel, does it make any sense to you, I know you can't see into Charlene's mind but does it make any sense to you that Charlene would destroy her kids' things, all their little treasures, all their toys, all their clothes, does it make any sense to you at all? A. At this point a lot of things don't make sense why. Q. It doesn't, does it? It doesn't make any sense does it? A. I had threatened her that morning to take the house and to take the children. That's all I can say.
[27] Counsel for the appellant submits that this cross- examination runs afoul of this court's decision in R. v. Henderson (1999), 1999 CanLII 2358 (ON CA), 44 O.R. (3d) 628, [1999] O.J. No. 1216 (C.A.), at p. 635 O.R.:
Crown counsel's questioning required the appellant to provide an alternate explanation for the complainant's behaviour that was not premised on his guilt. Such an explanation would have required the appellant to either comment upon the complainant's credibility or to give an opinion that he was clearly not qualified to give, explaining why her conduct was inconsistent with someone who had been sexually assaulted. Clearly questions of this nature are improper and unfair.
[28] On the facts of this case, in our view, the impugned cross-examination did not unfairly prejudice the appellant. The appellant and the deceased were not strangers. The appellant had advanced a suggestion that the deceased was suicidal based on his conduct and his observations of her conduct. But there were a number of problems with the appellant's position in that his evidence about the appellant's conduct seemed inconsistent with what was known about the deceased. It was open to the Crown counsel to explore those inconsistencies with the appellant. When the impugned questions are considered in the context of all of the questions he was asked about the deceased's conduct and circumstances, the appellant was not asked to and did not comment on what the deceased was thinking or give an opinion he was not qualified to give. Rather, the Crown simply gave the appellant the opportunity to explain the circumstances. In deciding whether the Crown had proved beyond a reasonable doubt that the deceased did not commit suicide, the [page251] jury would inevitably take into account whether such an explanation made sense having regard to all the circumstances. Putting those circumstances to the appellant during cross-examination did not unfairly prejudice the defence in this case.
[29] Finally, the appellant submits that the charge to the jury may have led the jury to believe that they only had two alternatives: either accepting the appellant's evidence of the argument the day of the fire and the deceased's state of mind at that time, or accepting the prosecution evidence that the appellant deliberately set the fire. As pointed out by Martin J.A. in R. v. Nimchuk, 1977 CanLII 1930 (ON CA), [1976] O.J. No. 1258, 33 C.C.C. (2d) 209 (C.A.), at p. 210 C.C.C.:
There was, of course, a third alternative, namely, if a reasonable doubt existed, in view of the conflicting testimony, as to exactly where the truth of the matter lay, it would, of course, require an acquittal.
[30] We are satisfied, however, that the instructions in the main part of the charge together with the recharge would have left the jury with no doubt that the burden was on the Crown to disprove suicide beyond a reasonable doubt. The trial judge gave the jury complete instructions on the presumption of innocence, the burden of proof beyond a reasonable doubt and the application of reasonable doubt to credibility in accordance with R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26. The second prong of the W. (D.) instruction is designed in part to warn the jury against making the Nimchuk error, at least where the defence, as here, substantially rests on the accused's evidence. The jury are told that they do not have to believe the testimony of the accused and they must acquit if that testimony leaves them with a reasonable doubt. In our view, the trial judge's correct instructions in his original charge on the application of W. (D.) to the appellant's evidence respecting suicide with the explicit instruction in the recharge that the appellant did not have to prove that the deceased did commit suicide and that the Crown must prove beyond a reasonable doubt that she did not commit suicide were sufficient. It is not realistic to believe that the jury would have convicted the appellant of a planned and deliberate murder if they were unsure how the deceased died.
Disposition
[31] Accordingly, the appeal is dismissed.
Appeal dismissed.