Court of Appeal for Ontario

CITATION: R. v. Fraser, 2011 ONCA 238

DATE: 20110328

DOCKET: C48724

BEFORE: Doherty, LaForme and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Douglas Fraser

Appellant

COUNSEL:

Phil Downes, for the appellant

M. David Lepofsky, for the respondent

Heard and released orally: March 22, 2011

On appeal from the conviction entered by Justice Turnbull of the Superior Court of Justice, dated July 19, 2007.

ENDORSEMENT

[1] The appellant was convicted of second degree murder after a trial by a judge sitting without a jury. He was sentenced to life imprisonment without eligibility for parole for 12 years. He appeals his conviction only.

[2] The deceased, the estranged wife of the appellant, was a paraplegic. The following findings of fact are not and cannot be successfully challenged on appeal and must be taken as the backdrop for the assessment of the grounds of appeal advanced:

• The deceased died as a result of smoke inhalation caused by a fire in her home.
• The appellant intentionally set the fire that caused his wife’s death. When he set the fire he knew that his wife, as indicated, a paraplegic, would be alone in her bed upstairs.
• The appellant knew that the manner in which he set the fire would in all likelihood result in the home’s becoming engulfed in flames sometime in the middle of the night.
• The appellant knew that the deceased was not only severely physically handicapped and would have great difficulty getting out of the house, but also that the deceased was very afraid of a fire in the home and would in all likelihood panic when she became aware that the house was on fire.

[3] In addition to the factual findings set out above, the trial judge ruled that a confession made by the appellant to the police was voluntary and admissible. At the end of the trial, the trial judge held that the confession was reliable and constituted evidence that the appellant had started the fire intending to kill his wife, or at least intending to cause her bodily harm knowing that her death was probable. The trial judge also relied on certain parts of the appellant’s statements in holding that he had a reasonable doubt as to whether the murder was planned and deliberate. That doubt led to the acquittal on the first degree murder charge.

[4] Counsel for the appellant argues that the trial judge failed to consider the effect of the failure of the police to video record their interaction with the appellant in the three-hour period prior to the confession. Counsel submits that the trial judge should have considered that failure in the context of assessing the ultimate reliability of the appellant’s confession.

[5] We cannot accept this submission. The failure to record the three-hour interval before the confession does not per se adversely affect the reliability of the subsequent confession. That confession was videotaped. The failure to videotape the interaction between the appellant and the police in the time period preceding the confession does, however, alert the trier of fact to the need to carefully scrutinize both the interaction between the police and the accused during that time period and the explanation offered for not videotaping that interaction. The trial judge did so in his ruling on the voir dire and in the context of his assessment of the voluntariness of the confession. That ruling was not challenged on appeal.

[6] On the evidence heard at trial (only the police officers’ evidence because the appellant did not testify on the trial proper), there was nothing that occurred during the non-recorded three-hour interval that could adversely affect the reliability of the subsequent videotaped voluntary confession. It is not surprising that the trial judge did not retread the ground thoroughly covered on the voluntariness ruling. The goings on during the non-videotaped interval were clearly relevant to the question of voluntariness, but once that issue was settled and absent any additional evidence on the trial, there was no need, in our view, for the trial judge to repeat his analysis of that part of the evidence.

[7] What was important to the trial judge’s inquiry into the truthfulness of the appellant’s confession was his finding, based on other evidence, that the appellant had the exclusive opportunity to set the fire. That finding went a long way toward establishing the reliability of the appellant’s confession that he had in fact set the fire.

[8] The trial judge also found that comments made in the confession with respect to certain facts, for example, where the fire was started and the manner in which it was started were consistent with the objective evidence. This also buttressed the ultimate reliability of the confession.

[9] In sum, we think that the trial judge did not refer to what happened during the interval when the interaction between the police and the appellant was not videotaped, because based on the evidence adduced on the trial, nothing had occurred during that time period that had any significance to his assessment of whether the appellant’s voluntary confession was truthful.

[10] Finally, we note that the trial judge wrongly applied the reasonable doubt standard to his determination of the reliability of the appellant’s confession. That error inured to the appellant’s benefit.

[11] Counsel, quite properly in our view, conceded that if he could not succeed on the first ground of appeal, his other arguments did not warrant a new trial. We do not propose to deal with those grounds in any detail. With respect to the second ground of appeal, the alleged inconsistent findings made by the trial judge in respect to certain after-the-fact conduct, we say only that we do not accept that the trial judge indeed made inconsistent findings. We think the finding on the voir dire relates only to the effect of the appellant’s admitted lie to the police on his testimonial credibility. The appellant had testified on the voir dire. The trial judge’s finding in his reasons for judgment concerning the appellant’s post-offence conduct addresses a much broader course of conduct by the appellant. That conduct could support a finding of consciousness of guilt. In any event, the trial judge made it clear that this part of the evidence played a relatively minor role in his overall assessment of the case.

[12] The third ground of appeal was not argued in oral submissions by counsel. We cannot accept that the trial judge made any error in his application of the W.D. principle. He specifically referred to and applied that principle in his reasons for judgment (see pp. 2281-82).

[13] The appeal is dismissed.

“Doherty J.A.”

“Gloria Epstein J.A.”

“H.S. LaForme J.A.”