COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fournel, 2014 ONCA 305

DATE: 20140422

DOCKET: C55283

Hoy A.C.J.O., LaForme and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Cecile Fournel

Appellant

Brian H. Greenspan and Jill Makepeace, for the appellant

Ian Bulmer, for the respondent

Heard: February 10, 2014

On appeal from the conviction entered on January 18, 2012 by Justice Patricia C. Hennessy of the Superior Court of Justice, sitting without a jury, with reasons reported at 2012 ONSC 375.

Pardu J.A.:

[1] The appellant, Cecile Fournel, appeals from her convictions for arson and administration of a noxious substance and seeks leave to appeal from the sentences imposed totalling five years imprisonment.

[2] The appellant drove to the home of the complainant – her daughter-in-law, Chantal Boudreau – to discuss an ongoing family law dispute between the appellant’s son and Boudreau. The appellant was concerned that her grandchildren might move out of town with Boudreau.

[3] The appellant purchased a non-prescription sleep aid, Nytol, shortly before arriving at Boudreau’s home. The appellant knew the children were with her son. She brought wine and vodka coolers and invited Boudreau to drink with her and discuss the family issues. Several hours later, Boudreau woke to find her bedroom closet in flames, but escaped unharmed. The trial judge concluded that the appellant spiked the Boudreau’s drink with Nytol, put the complainant to bed, and left her asleep and sedated. The trial judge further found that the appellant – who was completely preoccupied by the custody battle – set fire to the house.

[4] The appellant appeals from her conviction on the basis that the trial judge erred:

1. in concluding that the fire was intentionally started and ruling out an electrical malfunction as the cause;

2. by failing to assess the impact of the suspicious behaviour on the part of David Martin, a fellow Ontario Provincial Police (“OPP”) officer of the appellant who had contact with Boudreau and who suggested to Boudreau that she be tested for the presence of drugs after the fire. Both Nytol and sedative prescription drugs were detected in Boudreau’s urine, substances she says she did not voluntarily ingest;

3. by failing to adequately scrutinize the evidence of Boudreau.

[5] Additionally, the appellant appeals against sentence on the basis that the trial judge erred in imposing consecutive sentences for the two offences and on the basis that the trial judge imposed a harsh and excessive sentence in light of the circumstances.

[6] For the reasons that follow, I would dismiss the appeal against conviction, and would grant leave to appeal sentence but dismiss this appeal as well.

Facts

Background

[7] The appellant was a Detective Constable in the Crime Unit of a detachment of the OPP in Timmins. The appellant’s son, Evan Palaszewski, was in a relationship with Boudreau for approximately nine years. Palaszewski and Boudreau had two children together. At the time of the offences, Boudreau and Palaszewski had been separated for three months and were engaged in an acrimonious family law dispute. The appellant had generally enjoyed a close relationship with both her son and Boudreau; indeed, due to the appellant’s recommendation, Boudreau was hired as an administrative assistant in the appellant’s unit of the OPP in December 2008. However, in the weeks leading up to the offences, their relationship became strained. Boudreau filed an application in family court seeking custody and support, began to limit the appellant’s access to her grandchildren, and raised the possibility of moving with them to Sudbury.

The Events of February 25

[8] On February 25, 2009, shortly after 6 p.m., the appellant pulled up in an unmarked police car (the “crime car”) to Boudreau’s home. Boudreau and Palaszewski had planned to take their children swimming that evening, but due to an argument, Palaszewski took the children himself and Boudreau remained home. The appellant brought wine and vodka coolers and told Boudreau that she wanted to “get drunk and talk this out”. Boudreau testified that, after they entered the house, the appellant requested that she call Palaszewski and ask him to keep the children that night, but not mention the appellant’s presence. While Boudreau made this call, the appellant prepared the drinks in the kitchen. After the call, Boudreau entered the kitchen and saw a glass of wine and a glass with a cooler. She reached for the wine, but the appellant told her to take the cooler instead. Boudreau sipped it and complained that it tasted bitter, but the appellant persuaded her to drink it.

[9] At the appellant’s suggestion, the two then moved downstairs into the basement. On the appellant’s recommendation, Boudreau smoked in the basement rather than outside, and she retrieved candles to “kill the smoke”. Boudreau complained again after taking another sip of her drink, but the appellant told her to “block [her] nose [and] gulp it”. Boudreau claimed that she felt the effects of the alcohol after only 1.25 or 1.5 drinks, while the appellant appeared to have no reaction to it. The discussion in the basement revolved around Boudreau’s move to Sudbury and her potential reconciliation with Palaszewski. As Boudreau got up from the couch to get food, her knees buckled. The appellant caught her and took her to her bedroom, also in the basement. Boudreau recalled that there was bedding on top of the bed and that she saw the appellant bring the candles into the bedroom and place them on the night stand, which was against the wall parallel to her pillow.

[10] Boudreau testified that she awoke to the feeling of heat and the sound of crackling. She then heard the fire alarm. Believing that the fire was small and could be extinguished, she unsuccessfully tried to put it out. Boudreau then ran up the stairs and outside. She called 911, and then Palaszewski. Some of her neighbours attended the scene, and the appellant returned in the crime car shortly thereafter. She and Boudreau had a brief conversation, and the appellant insisted that Boudreau get into her car.

[11] The fire department arrived at the home at 9:09 p.m. As they entered the basement bedroom, they observed flames on the mattress. The firefighters inside the home were in communication with Fire Captain Mike Giroux, who was outside the home, and advised him that the fire appeared to be a mattress fire. Palaszewski arrived at the scene and took Boudreau to the appellant’s home.

[12] The morning after the fire, Palaszewski sought to blame the incident on Boudreau. Boudreau believed that Palaszewski would use the fire against her and that she would lose her children. Later that day, Boudreau provided statements to Deputy Fire Chief Joey Stojkiewicz and went to inspect her house with him and another fire fighter. She also obtained legal advice that day, because she was puzzled by the fact that the drink made her disoriented and had concluded that things “didn’t add up”. Boudreau testified that, as a result of that legal advice, she tendered a urine sample for a toxicology test at 10:15 a.m.

David Martin’s Evidence

[13] Evidence at trial was provided by David Martin, a Detective Constable in the same unit as the appellant and Boudreau. Martin and the appellant had worked together since 2005 and had known each other for longer than that. Sometime before the events in question, another officer in the same unit as Martin and the appellant complained about Martin’s conduct towards her and the appellant. He was “snooping around and prying into their personal business”. Martin’s relationship with the appellant changed around that time, but, according to Martin, was back to normal by December 2008.

[14] Martin claimed to learn about the fire at work on February 26. Martin discovered that the appellant had been at the office around 5 a.m. on February 26 and had left the crime car there. Martin made inquiries about the appellant to colleagues, and when the appellant arrived at the detachment around 8:30 or 9 a.m., Martin asked her why she had been there earlier that day. At approximately 3:20 p.m. that day, Martin went to the crime car, conducted a search, and discovered a blister pack of pills, which he initially kept in his jacket pocket. That evening, Martin came to Boudreau’s mother’s home to speak to Boudreau. Boudreau told Martin what had happened, including that she had become intoxicated faster than normal, and Martin told her about the pills he had discovered. Martin then called his wife at home – where he had left the package – and ascertained that pills were Nytol. Martin advised Boudreau to get tested to determine if she had been drugged. Boudreau told him that she had already been tested on the advice of her lawyer.

[15] Martin eventually brought the Nytol pills into the office on March 3 and placed them in a secure locker. He had concerns that the pills were evidence, but decided to hold onto them until the results of the toxicology test were available. The next day, he asked a colleague to place the pills into the property vault.

The Police Investigation

[16] The police searched and photographed the scene on March 3. The police found three packages of different types of sleep aids in Boudreau’s home, all of which had been opened at some time and contained diphenhydramine or dimenhydrinate. The expiry dates on the packages were 2003 and 2006. A wine bottle was found in the laundry basket in the basement bedroom, between the bed and closet. Pieces of glass, apparently from a wine glass, were also found among the contents of the closet.

[17] Boudreau and Martin testified that she immediately contacted him after receiving the results of the toxicology test. Martin determined that the drug detected in Boudreau’s body was the same one contained in Nytol and contacted Mike Pilon, the appellant’s supervisor. The crime car was then examined. On March 9, OPP Detective Inspector Bickerton interviewed the appellant and advised her that she was being investigated for attempted murder. The appellant denied setting the fire and explained what she said was Boudreau’s ulterior motive for making allegations against her. When told that pills that smelled of smoke were found in the crime car and matched what was in Boudreau’s system, the appellant replied that this was impossible and denied that the pills could be linked to her. Following the interview, the appellant was suspended.

[18] The police then visited pharmacies and stores to ascertain where Nytol pills are sold. They ultimately found and viewed security footage from a Shoppers Drug Mart in Timmins confirming that the appellant had purchased Nytol on February 25, approximately forty minutes before she arrived at Boudreau’s home. It was the only item she purchased, and she paid cash. The Nytol pills Martin said he found in the crime car had the same lot number as the Nytol pills purchased by the appellant.

[19] A search of the appellant’s residence was conducted several days later. No relevant medications were found, but police seized and searched the appellant’s computer equipment. They discovered several of the appellant’s e-mail messages about Boudreau; in one, she referred to Boudreau as akin to her “worst enemy”; in another, she told a friend that she didn’t have much of a chance of stopping Boudreau from moving to Sudbury but would “try anyway”. The appellant was arrested for attempted murder and arson on March 13.

The Toxicology Report

[20] An analysis of Boudreau’s sample was conducted by Life Labs, and revealed the presence of diphenhydramine and two types of benzodiazepines, temazepam and oxazepam. Diphenhydramine is a non-prescription medication, found in products like Benadryl and in sleeping aids like Nytol. Temazepam is a prescription sleep aid. Oxazepam is a prescription drug for anxiety and can also cause drowsiness.

The Opinion of the Office of the Fire Marshall

[21] Douglas Horn, an investigator with the Ontario Office of the Fire Marshall, examined the scene of the fire and provided evidence at trial. Horn’s opinion was that the origin of the fire was in or above the closet largely on the basis of the configuration of the damage, which was most severe in the joist area above the closet.

[22] Horn eliminated careless smoking or candles as the cause of the fire. He sought the opinion of an electrical engineer, Qadeer Choudry, to examine the possibility of an electrical fire. Horn requested that Choudry examine the furnace and portions of copper wiring from two circuits, because portions of the wiring were located near the area of the fire’s origin. Choudry looked for evidence of beading – the melting of copper wire that leaves the appearance of a bead on the wire – but found none. Choudry concluded that neither the furnace nor the wiring had any role in causing the fire. At the preliminary hearing, Choudry was asked about two fractured wires in “Circuit B”, a seven-foot portion of wiring located in the basement recreation room ceiling adjacent to the bedroom closet. He stated that these wires appeared to be fused. However, at trial, he testified that the wires were merely touching, not fused. Having received Choudry’s opinion and ruling out the possibility of an electrical fire, Horn concluded that the fire was intentionally set in the bedroom closet.

Decision Below

Decision on Charges

[23] The trial judge convicted the appellant on the charges of arson and administering a noxious substance, but acquitted the appellant on the attempted murder charge.

[24] The trial judge began by reviewing the evidence led by the Crown on five points: the family law dispute between Boudreau and Palaszewski, and the relationship between Boudreau and the appellant; the appellant’s visit to Boudreau’s house on February 25 and the morning of February 26; the investigation of, and expert opinion on, the fire; the finding of diphenhydramine and benzodiazepines in Boudreau’s urine sample; and the involvement of Martin. Her findings were extensive, and I will only summarize here those findings with which the appellant takes issue on appeal.

[25] The trial judge acknowledged that Choudry gave different answers at the preliminary inquiry and at trial about the fusing of the wires. She accepted his evidence at trial and rejected the defence submission that the wires appear to be fused. She also accepted Horn’s opinion that the candles were not the source of the ignition.

[26] The trial judge was troubled by the fact that Martin could not explain certain elements of his conduct, namely his seeking information from colleagues, going to the scene of the fire, searching the crime car, and failing to treat the Nytol as evidence in accordance with police protocols and to ensure its integrity. Accordingly, she disregarded his evidence that he found Nytol in the crime car. However, the trial judge emphasized the absence of an “evidentiary link” between his conduct and a motive for concocting an elaborate story to blame the appellant for the fire. She observed that nothing in the evidence indicated that Martin had a motive to discredit the appellant in retaliation for her involvement in the workplace complaint made by a colleague, and that there was likewise no evidence that Boudreau and Martin shared anything more than a supportive work relationship.

[27] The trial judge then turned to an analysis of Boudreau’s evidence. The defence argued that Boudreau had an obvious motive to blame the appellant for the fire, once she realized the implications of the incident for her ongoing custody battle, and pointed to inconsistencies and allegedly implausible elements in her testimony. The trial judge accepted that there were weaknesses in some of Boudreau’s evidence, but largely accepted it on the basis that it was consistent with other evidence. She acknowledged that Boudreau’s testimony on what the appellant brought into her bedroom as Boudreau was lying in bed was inconsistent with the other evidence, but did not find that this inconsistency damaged Boudreau’s credibility. The trial judge also found that the alleged implausible elements were in fact plausible.

[28] The trial judge reviewed the evidence with respect to the appellant’s motive for the offences, including her strained relationship with Boudreau and the e-mail messages discovered on her computer. She concluded that the appellant had a motive to discredit Boudreau, which may have arisen from her love for – and potential loss of – her grandchildren or from a sense that Boudreau had betrayed her. She also concluded that the appellant was completely pre-occupied by the custody battle, and her judgment was impaired as a result.

[29] In applying the law, the trial judge applied the principles in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, to the evidence on each of the offenses.

[30] First, on the arson charge, the trial judge accepted Choudry and Horn’s evidence on the fire – namely, that the fire did not have an electrical cause and was instead caused by the intentional application of flame to combustibles in the bedroom closet. The trial judge found that none of the appellant’s attempts to discredit their findings had any traction. The trial judge was satisfied beyond a reasonable doubt that the appellant intentionally caused damage by fire to Boudreau’s home knowing that she was inside.

[31] Second, on the charge of administering a noxious substance, the trial judge found that:

• Boudreau did not self-administer the diphenhydramine; the appellant had an opportunity to place it in Boudreau’s drink;

• Boudreau’s inconsistencies in this respect were of no moment;

• Nothing in the evidence suggested that Boudreau had a propensity for taking drugs not prescribed to her;

• Boudreau’s recent legal troubles had no significant impact on her other evidence; Boudreau had a motive to deflect blame onto the appellant, but not to fabricate a story about the drugs;

• Martin’s evidence, while troubling, did not raise questions on the important points of Boudreau’s evidence.

[32] Ultimately, the trial judge was satisfied beyond a reasonable doubt that the appellant administered diphenhydramine to Boudreau on February 25. While the trial judge observed that it would be reasonable to infer that the appellant also administered the benzodiazepines, she concluded that it was unnecessary for her to do so to find that the appellant had administered a noxious substance. She also found that, for purposes of s. 245 of the Criminal Code, the diphenhydramine was a noxious substance and was administered with the intent to cause bodily harm.

[33] Third, on the attempted murder charge, the trial judge was not satisfied that the appellant had a specific intent to cause Boudreau’s death.

Decision on Sentence

[34] The trial judge sentenced the appellant to incarceration for two years for administering a noxious substance and for three years for arson, to be served consecutively.

[35] The trial identified several aggravating factors with respect to the arson: the extent of the appellant’s planning with respect to the events of February 25; the appellant’s specific knowledge that Boudreau was in bed, three to five feet from the fire; the significant psychological injury suffered by Boudreau; the intimate relationship between Boudreau and the appellant; and the appellant’s status as a police officer. With regard to administering a noxious substance, the trial judge added two aggravating factors: that Boudreau would have felt safe in her home with the appellant, and that the appellant recognized the impairment caused by the combination of the drug she added to Boudreau’s drink and the alcohol but continued with her plan.

[36] The trial judge also reviewed mitigating factors: the appellant’s significant contributions to her community; the absence of any criminal record or criminal charges; the restrictiveness of the appellant’s bail conditions; and the stigma of being a police officer in prison. Based on the case law, she found that the proper range for the arson offence in this case was three to five years. With respect to the offence of administering a noxious substance, she found that the circumstances were closest to those in R. v. Carr, 2010 ONCA 290, 267 O.A.C. 27, in which a two year sentence was imposed. The trial judge imposed a total sentence of five years: three for arson, and two for administering a noxious substance, to be served consecutively.

Issues

[37] The appellant argues that the trial judge made the following errors:

(1) She failed to recognize that the opinion of the Office of the Fire Marshall could not support a conclusion that the fire was intentionally set because Choudry’s examination could not eliminate the possibility of an electrical cause to the fire, and because Horn’s opinion that the fire was intentionally set was unreliable and incompatible with the scene of the fire;

(2) The trial judge failed to consider that the only logical inference from Martin’s conduct was that he was operating in concert with Boudreau and was aware of the fire before arriving at work the morning after it occurred;

(3) The trial judge erred in failing to apply sufficient caution to the evidence of Boudreau;

(4) With respect to the sentence imposed, the trial judge erred in imposing consecutive sentences, and the sentence imposed was excessive.

Analysis

Governing Principles

[38] The first two grounds of appeal relate to purported misapprehensions of evidence made the trial judge. The standard for setting aside a trial judgment on this basis is a demanding one. It is not sufficient to show that a trial judge has drawn different factual conclusions from evidence than those advanced by a party at trial. As this court recently stated in R. v. Cloutier, 2011 ONCA 484, at para. 60:

A misapprehension of the evidence may relate to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 19; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2; R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 538. To set aside a conviction on the basis that the trial judge misapprehended the evidence, the appellant must meet a stringent standard. The misapprehensions must be of substance rather than detail, they must be material rather than peripheral to the judge’s reasoning and the alleged errors must play an essential part in the reasoning process, not just of the narrative. A mere misstatement or inaccuracy in the trial judge’s treatment of the evidence does not constitute a reversible error: Lohrer at para. 2; Morrissey at p. 541; R. v. T.(T.) (2009), 2009 ONCA 613, 68 C.R. (6th) 1 (Ont. C.A.), at para. 33.

[39] Having set out these principles, I turn to the grounds by which the appellant challenges her conviction.

Did the Trial Judge err in accepting the expert evidence that the fire was intentionally set?

[40] The appellant submits that the trial judge erred in accepting the expert evidence that the fire was intentionally set. She raises several interrelated issues relating to this evidence on appeal.

Choudry’s evidence

[41] First, the appellant contends that the trial judge erred in concluding that Choudry’s evidence was premised upon a careful and thorough hands-on examination at the scene, and that this characterization reflects a material misapprehension of Choudry’s evidence.

[42] Choudry examined “circuit B”, a seven foot portion of wire in the ceiling of the adjacent recreation room, 28 inches from the back of the basement bedroom closet. Had there been an electrical malfunction in the area, he would have expected to see beading at the ends of the fractured wires from high temperature electrical arcing. Choudry was able to marry the three strands in the circuit together and concluded that no fragment had been lost. Since he saw no beading at the ends of the wires he concluded that there had been no electrical malfunction.

[43] However, Choudry did not search the debris for fragments of wire which could have broken off and therefore could not conclusively conclude that there had been no beading. He conceded in cross-examination that there may have been a gap in the wiring.

[44] Second, the appellant submits that the evidence of Choudry was also unreliable because he testified at the preliminary inquiry that two wires appeared to be fused, which would have been suggestive of an electrical malfunction, whereas at trial, he said the wires were not fused. The appellant submits that the trial judge’s acceptance of Choudry’s evidence that the wires were fused constituted a misapprehension of the evidence.

Horn’s Evidence

[45] Douglas Horn, an investigator with the Ontario Fire Marshall’s Office, concluded that the fire started in the bedroom closet beside the bed where the complainant had been sleeping, largely on the basis of the configuration of the damage, which was most severe in the joist area above the closet, and which lessened in the direction of electrical circuit B.

[46] The appellant submits that Horn’s theory of the fire “is riddled with frailties and does not fit the scene”. In support of this argument, the appellant renews several attacks on Horn’s evidence that were previously advanced at trial.

[47] The trial judge accepted that Choudry’s evidence as to the absence of beading on the ends of the wires was not conclusive proof that the fire was not caused by an electrical malfunction, but was satisfied on the whole of the evidence that the fire was deliberately set. Her findings were as follows:

[197] On the charge of arson, the evidence favourable to the accused includes:

1. That Mr. Choudry could not establish that there was no beading at the ends of the severed wires in circuit B and therefore could not conclude that there had been no arcing at that point;

2. That Mr. Choudry did not preserve the evidence from circuit B, which would have allowed another expert to assess the status of the wires.

[198] I am satisfied with Mr. Choudry’s responses to these challenges. His evidence was based on a careful and recorded, on sight, close-up observation. The alternate theory of possible fused wires was mere speculation, unsupported by any evidence, including by the firefighter who took the photograph in Exhibit 92. The evidence does not raise a reasonable doubt or leave me uncertain on this point.

[199] I accept Mr. Choudry’s opinion that the electrical system did not cause or contribute to the cause of the fire. It is well founded on all of the evidence. Mr. Horn could reliably depend on this opinion in his analysis.

[200] With respect to Mr. Horn’s opinion on the cause of the fire and the area of origin, the evidence favourable to Chantal Fournel includes:

1. Possibility that candles or cigarettes started the fire closer to the bed: based on unexplained absence of bedding, the alternate cause of the irregular burn mark on the floor; the cigarettes and candles found in close proximity to the bed; and Chantal Boudreau’s attempt to control the fire when she first awakens;

2. Possibility that the fire was caused by circuit B in the electrical system;

3. Absence of explanation for fire on south side edge of the bed.

[201] None of these alternate theories or attempts to undermine Mr. Horn’s opinion found any traction with respect to Mr. Horn’s opinion on the area of origin and cause of the fire. His evidence stood up to rigorous scrutiny.

[202] Mr. Horn was a thoughtful and experienced investigator and witness. He approached the investigation with an open mind. He considered every suggestion put to him in cross examination. He reasonably accepted many of these suggestions and hypotheticals. He supported his opinion with careful analysis, observations of physical evidence and logical inferences. He carried out his investigation according to the scientific method, excluding all possibilities before coming to the conclusion that the fire was an incendiary fire, that is, one intentionally started.

[203] With respect to the suggestion that the fire was caused by the failure of the electrical system, Mr. Horn engaged a professional to assist him with the investigation of the electrical system. Mr. Horn properly relied on Mr. Choudry’s opinion which is supported by Mr. Horn’s own observations. Mr. Horn did not direct or suggest any outcome to Mr. Choudry. With respect to the issues raised by the unexplained fire damage on the south side edge of the mattress, Mr. Horn considered evidence that suggested the use of an accelerant. He sent samples to the lab to test his theory. The results did not support the use of an accelerant, therefore, Mr. Horn rejected that theory and continued to formulate alternative theories, each of which he tested.

[204] With respect to the evidence regarding the possibility that the candles or smoking materials caused the fire, Mr. Horn’s evidence is consistent with the fire damage found by the firefighters and consistent with the observations of Chantal Boudreau as described to her neighbour at the scene and as reported to the Fire Deputy Chief within 24 hours of the fire. The evidence, underscored by the defence, merely raises the remote possibility, unsupported by other evidence, that the smoking material started the fire. Notwithstanding that some of these cigarette butts may have moved during fire suppression efforts, at least one of them was barely consumed. No burn marks could be linked to the smoking materials. The irregular burn pattern could not support the proposition that the fire started at the mattress and spread to the closet. Mr. Horn’s opinion stands up to every alternate theory and proposal put to him. I am satisfied beyond a reasonable doubt that the fire was caused by the intentional application of flame to the combustibles in the open closet.

[48] These reasons demonstrate that the trial judge was alive to the defence challenges that were made to Choudry’s evidence and Horn’s evidence and which the defence again raises on appeal. She carefully considered their testimony in the context of all of the evidence before her on this issue. Her reasons do not disclose any misapprehension of the evidence: she did not make a mistake as to the substance of any material part of the evidence. The appellate process is not an opportunity for this court to reweigh evidence that was before the trial judge and carefully considered by her. The fact that the trial judge did not accept the defence position with respect to Choudry’s examination or Horn’s conclusions does not render her conclusions in this respect erroneous.

[49] With respect to the purported inconsistency of Choudry’s evidence as to whether the wires were fused, Choudry explained that at the preliminary inquiry he had had only seconds to look at the photograph but revised his opinion after more careful examination. The trial judge accepted his explanation, and was entitled to do so. Again, she did not make a mistake as to the substance of the evidence.

Did the trial judge err in merely rejecting Martin’s evidence rather than drawing the inference advanced by the defence at trial?

[50] The appellant submits that the trial judge erred in simply finding Martin’s behavior unexplainable in the circumstances, and that the only inference supportable from the evidence is that Martin acted as he did because he was acting in concert with Boudreau.

[51] In my view, this ground must fail. The trial judge was clearly aware of the need to be cautious with respect to Martin’s testimony. She concluded that his behaviour was so unusual that she could not rely on his testimony that he found the Nytol in the crime car. Given that she was alive to these credibility concerns, she was entitled to reject the suggestion that he attempted to frame the appellant or that he was in a relationship with Boudreau and was trying to help her escape blame for causing the fire.

[52] In any event, there was independent evidence linking the appellant to the Nytol, namely the surveillance video, in a drug store which clearly showed the appellant purchasing Nytol within an hour of her arrival at the complainant’s home. In the end, Martin’s evidence added nothing of substance to the Crown’s case.

Did the trial judge apply insufficient caution to the evidence of Boudreau?

[53] The appellant also submits that the trial judge erred in failing to apply sufficient caution to the evidence of Boudreau, and that her reasons demonstrate “repeated liberal allowances and a lack of meaningful criticism” of this evidence.

[54] The appellant does not identify any omission or misapprehension in the trial judge’s scrutiny of Boudreau’s evidence. The trial judge was aware of all of the factors potentially undermining Boudreau’s credibility and dealt with them as follows:

[157] The defence alleges that Chantal Boudreau had a motive to blame Cecile Fournel for the fire once she realized that Evan Palaszewski could or would raise her blameworthy conduct in the custody battle. Chantal Boudreau agreed that she was engaged in a bitter dispute over custody of the children and that the parents were making allegations against each other. She agreed that she would do anything to maintain her position in the custody dispute. The defence points to evidence that on the morning after the fire Evan Palaszewski made comments suggesting that Chantal Boudreau had been drunk and had caused the fire by smoking in bed or carelessly placing candles near the bed.

[158] The defence also argues that Chantal Boudreau had the opportunity to ingest diphenhydramine from medications she kept at home and that the substances found in her urine sample could have come from these medications.

[159] Finally, they further allege that Chantal Boudreau’s evidence raises serious credibility issues that make her version of events completely unreliable.

[160] Within Chantal Boudreau’s evidence there are a number of issues which raise credibility issues, including her statement that on the night of the fire, she saw Cecile Fournel bring candles into the room and which colours of candles she brought into the room. There are also inconsistencies within her evidence which I will deal with further. However on the whole, I find that Chantal Boudreau’s evidence is confirmed by many witnesses, including disinterested witnesses, on banal facts and on significant facts. Notwithstanding certain weaknesses in Ms. [Boudreau’s] evidence on a few points, the confirmatory evidence is capable of restoring my faith in the main body of her evidence.

[161] I find that Chantal Boudreau’s evidence was confirmed as follows:

1. The plan to take the kids swimming was confirmed by Lise Boudreau;

2. That Cecile Fournel arrived at Chantal Boudreau’s home between 6:00 and 6:15 p.m. was confirmed by neighbours and by Cecile Fournel;

3. That Chantal Boudreau called Evan Palaszewski around that time of Cecile Fournel’s arrival was confirmed by the phone records;

4. That Cecile Fournel brought wine and coolers to house was confirmed by Cecile Fournel in a conversation with Bev Mackey;

5. That Cecile Fournel brought wine glasses to house was confirmed by Cecile Fournel in her statement;

6. That the purpose of the visit was to talk about access issues was confirmed by Cecile Fournel in her conversation with Bev Mackey and in her statement and in her conversation with Mme Faucher;

7. That Cecile Fournel poured the wine was confirmed by Cecile Fournel in her statement;

8. That the two women drank two glasses of wine and one cooler was confirmed by Cecile Fournel in her statement and in part in her conversation with Bev Mackey and Mme Faucher and Captain Giroux;

9. That Cecile Fournel stayed at least an hour and talked about access to the grandchildren was confirmed by Cecile Fournel in her statement and in her conversation with Bev Mackey;

10. That there was smoking during the conversation was confirmed by Cecile Fournel in her conversation with Captain Giroux;

11. That they lit candles to deal with the smoking was confirmed by Cecile Fournel to Lise Boudreau and Deputy Fire Chief Joey Stojkiewicz;

12. That Chantal Boudreau used a plastic bottle for an ashtray was confirmed by firefighter who found such a bottle;

13. That Chantal Boudreau didn’t usually smoke in house was confirmed by Mme Faucher who saw her outside in the garage;

14. That candles were lit to deal with the smell of cigarettes and Cecile Fournel was responsible to put out candles was confirmed by Cecile Fournel in part in her conversation with Bev Mackey and in part with Mr. Saudino;

15. That Cecile Fournel brought candles to the bedroom was confirmed by Cecile Fournel in her interview with Deputy Fire Chief Stojkiewicz and by her comments to Lise Boudreau around midnight at the Spooner Street residence;

16. That Chantal Boudreau was affected by a substance was confirmed by Cecile Fournel in her statement “she was loaded” and by Celine Faucher “she leaned on Evan Palaszewski to walk”, Mr. Faucher that her knees buckled, Lise Boudreau that “she kept her eyes closed and wanted to go to sleep”, also confirmed by Cecile Fournel in statement and to Bev Mackey, “put her to bed” and by Mrs. Boudreau that in the hours after the fire, she wasn’t very alert;

17. That Cecile Fournel brought Chantal Boudreau to bedroom was confirmed by Cecile Fournel in her statement and Deputy Fire Chief Stojkiewicz;

18. That Chantal Boudreau was not conscious when Cecile Fournel left was confirmed by Cecile Fournel in her conversation with Bev Mackey;

19. That Cecile Fournel was not affected by drinks was confirmed by her ability to drive and her ability to deal with the officials from the fire department that night.

[55] In the end, the appellant is unable to point any legal error or misapprehension of the evidence on the part of the trial judge and invites this court to re-weigh the evidence and make different findings of credibility. I would decline to do so. The trial judge, as the trier of fact, was in a better position than this court to make findings of credibility and fact relating to Boudreau’s evidence, and such findings are entitled to deference: see R. v. G.P, 2014 ONCA 39, at para. 15. The trial judge’s reasons were set out in impeccable logical detail and were responsive to the issues raised by the defence at trial. The appellants have not demonstrated why the trial judge’s findings with respect to Boudreau justify appellate intervention.

[56] Based on the above, I would dismiss the appellant’s appeal from conviction.

Appeal from sentence

[57] The appellant also seeks leave to appeal from the sentence imposed of five years imprisonment, broken down three years for the arson, and two years consecutive for the administration of a noxious substance. She submits that the trial judge erred in making the sentences consecutive, when the two offences were essentially part of the same event.

[58] A sentencing judge’s decision to impose sentences concurrently or consecutively is generally entitled to the same deference granted to other sentencing decisions: R. v. McDonnell, 1997 CanLII 389 (SCC), [1997] 1 S.C.R. 948, at p. 982. Further, the trial judge did not err in applying R. v Gummer (1983), 1983 CanLII 5286 (ON CA), 1 O.A.C. 141, where Martin J.A. stated, at para. 13:

We do not consider the rule that sentences for offences arising out of the same transaction or incident should normally be concurrent, necessarily applies where the offences constitute invasions of different legally protected interests, although the principle of totality must be kept in mind.

See also R. v. Houle, 2008 ONCA 287, 79 W.C.B. (2d) 64; R. v. Gillis, 2009 ONCA 312, 248 O.A.C. 1.

[59] Here, the two offences constituted distinct invasions of protected societal interests. While the administration of the noxious substance was directed at and solely affected the complainant’s personal integrity, the arson caused widespread damage to other interests and put the broader community and first responders at risk. The trial judge was therefore entitled to impose consecutive sentences.

[60] The appellant also argues that the sentence was unduly harsh and excessive under the circumstances.

[61] I disagree. The global sentence of five years was fit, in light of the serious aggravating factors found by the trial judge, including:

1. The appellant’s serious betrayal of someone in a close relationship with her, who trusted and relied upon her;

2. The calculated nature of the offences, which were the product of a plan to gain advantage in matrimonial proceedings;

3. The appellant’s position as a police officer, and the violation of the community expectation she would obey the law;

4. Her endangerment of the complainant’s life.

[62] Furthermore, the sentencing judge properly took into account the restrictive bail conditions, the otherwise exemplary life of the appellant and the likely harsh conditions of incarceration for a former police officer.

[63] Accordingly, there is no basis to intervene in the sentence imposed.

[64] I would grant leave to appeal sentence but would dismiss the appeal.

Released: April 22, 2014

(A.H.) “G. Pardu J.A.”

“I agree Alexandra Hoy A.C.J.O.”

“I agree H.S. LaForme J.A.”