COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sousa, 2014 ONCA 550

DATE: 20140721

DOCKET: C56227

Strathy C.J.O., Feldman and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Fernanda Sousa

Appellant

Paul Burstein, for the appellant

Sean Doyle, for the respondent

Heard: June 26, 2014

On appeal from the conviction entered by Justice M.F. Khoorshed of the Ontario Court of Justice on July 23, 2012, and the sentence imposed on October 31, 2012.

Strathy C.J.O.:

[1] Fernanda Sousa appeals her conviction for setting fire to her rented home. She was sentenced to six months’ imprisonment and three years’ probation, which included a term for restitution of $91,865. She seeks leave to appeal her sentence and asks that a conditional or intermittent sentence be imposed and that the restitution order be deleted or varied.

[2] Two grounds are raised on the conviction appeal. The first relates to the admissibility of the appellant’s confession to police and her utterance to a fire investigator. The second asserts the trial judge materially misapprehended evidence about the fire and its aftermath.

[3] The appellant acknowledges that the Crown had a strong circumstantial case. It included evidence that:

• her neighbour saw her leaving her home shortly before he observed smoke coming from the house; • she was the last person to leave the house on the morning of the fire; • on entering the house, the neighbour discovered the contents of a pot burning on the stove; • fire investigators discovered an iron in a second floor closet, sitting in the middle of a pile of burned clothing; • in the words of the trial judge, a “serious, serious quantity” of orange paint had been sprayed throughout the main floor of the house, on walls, flooring, furniture and other objects, but not on any of the expensive articles on the wall; • although the appellant claimed she had sprayed the paint the night before the fire because she was angry with her husband, he testified he had not seen any paint when he left the house earlier that morning; • there was a financial motive – the family business was losing money and the appellant had made overdue payments on the family’s tenant insurance policy a few days before the fire and had asked the insurance agent for information about their coverage; and • after her release from police custody on arrest, the appellant went to see her landlord, the owner of the home, and admitted to having started the fire. She claimed an unknown intruder had put a knife to her throat, threatened that he would kill her daughter and forced her to start the fire.

[4] The appellant was arrested two weeks after the fire. Upon her arrest, she was advised of her right to counsel and was cautioned. She was taken to an interview room. The interview was recorded. When it began, the appellant was again advised of her right to counsel, again told that she was being charged with arson, and was given a primary and secondary caution. She consulted with counsel. The interviewing officer repeatedly told her that she would be released whether she gave a statement or not.

[5] After a lengthy interview, she admitted she started the fire, stating that she was depressed and suicidal as a result of her family’s financial situation. At the suggestion of the officer and with his assistance, she wrote and signed a letter of apology to her landlord.

[6] The trial judge ruled the statement voluntary and admissible.

(1) Conviction Appeal

(a) Admissibility of Statements

[7] The appellant submits the trial judge erred in admitting her confession to the police and her statement to a fire investigator that she had removed the batteries from the smoke alarm two weeks before the fire.

[8] She submits her confession should not have been admitted because the Crown failed to adduce the evidence of a female officer who allegedly threatened and assaulted her. I do not agree. Four officers testified on the voir dire, including the arresting officer, who was in charge of the investigation, the transporting officer, the scribe and the interviewing officer. An officer who was present throughout her arrest, transport and lodging in the cells testified that he did not witness any threats or promises. Defence counsel never suggested to any of these witnesses that a female officer had been present, had made threats or had abused the appellant in any way. Given the absence of any suggestion to these witnesses that the statement was induced by the alleged conduct of the female officer, the Crown had no obligation to lead evidence on the issue. It is significant that defence counsel did not refer to the absence of the female officer in her submissions on the voir dire.

[9] The appellant also asserts that the trial judge should have conducted a voir dire in relation to the evidence of the confession to the fire investigator on the basis that he was a person in authority. The defence did not request a voir dire and there was nothing in the record that ought to have alerted the trial judge to the need for a voir dire, notwithstanding the silence of counsel: R. v. Hodgson, 1998 CanLII 798 (SCC), [1998] 2 S.C.R. 449. There was no evidentiary foundation on the facts of this case to support the conclusion that the investigator was a person in authority: R. v. S.G.T., 2010 SCC 20, [2010] 1 S.C.R. 688.

(b) Use of Extrinsic Evidence

[10] The appellant also asserts that the trial judge erred in using the accuracy of the appellant’s description of how she started the fire as confirmatory of its voluntariness. I agree with the respondent that in the extract in question, the trial judge was simply summarizing the Crown’s position on the voir dire and did not use extrinsic evidence of the truth of the statement as a make-weight on the issue of voluntariness.

(c) Misapprehension of the Evidence

[11] The appellant asserts the trial judge misapprehended the evidence in three respects:

(i) he repeated his error with respect to extrinsic evidence by reasoning that the appellant’s statement was likely to be true because she provided accurate details;

(ii) he erred in finding the homeowner’s evidence about the appellant’s apology to be reliable because she had been paid by her insurance company and had no motive to lie when she had suffered other losses not compensated by insurance; and

(iii) he misapprehended the evidence of the fire investigator when he found that fires were started in two locations in the second floor bedroom and erred in reasoning from this that the fires were intentionally set.

[12] The decision of this court in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (C.A.) has frequently been cited for the test for whether there has been a misapprehension of the evidence which vitiates the conviction. In that case, Doherty J.A. stated at p. 221,

Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction, then, in my view, the accused's conviction is not based exclusively on the evidence and is not a "true" verdict.… If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.

See: R. v. Lohrer, 2004 SCC 80, at para. 1; and R. v. C.L.Y., 2008 SCC 2, at para. 19.

(i) Extrinsic evidence

[13] Having found that the appellant’s confession was voluntary, the trial judge was entitled to consider whether it was reliable and in that regard was entitled to consider whether it was consistent with the objective evidence and the opinion of the fire investigator. I see no misapprehension of this evidence.

(ii) The homeowner’s evidence

[14] In cross-examination, the homeowner said that she had been paid by the insurance company in December 2010, three months after the fire. It was never suggested to her in cross-examination that she had a motive to lie because she had not been paid by the insurance company or fully compensated for the damage. The trial judge did not misapprehend her evidence.

(iii) Two fires

[15] The appellant claims the trial judge misapprehended the evidence of the fire investigator when he concluded that two fires had been started in the bedroom – one in the closet and one on the bed – when it was not disputed that the fire likely spread from the closet to the bed. The appellant says the trial judge used this misapprehension of the evidence to find that the fire was set intentionally rather than accidentally.

[16] There are two portions of the trial judge’s reasons that could support the appellant’s argument. However, in the same two references, the trial judge referred to the fact that two separate fires were started in the house, one upstairs in the bedroom closet and the other downstairs in the kitchen. This uncontested evidence was alone sufficient to support the trial judge’s conclusion that the occurrence of two fires in the house at the same time could not be explained by accident.

[17] In my view, if there was a misapprehension of the evidence in this regard – and I am not satisfied the trial judge was mistaken as to the substance of the evidence – it does not rise to the Morrissey standard because the alleged error did not play an essential part in the reasoning process. The fact of two fires on two separate floors was sufficient to rule out accident.

(2) Sentence Appeal

[18] I agree with the respondent that the trial judge implicitly accepted the submission of the Crown that this was a “serious personal injury offence” as defined in s. 752 of the Criminal Code, R.S.C. 1985, c. C-46, and that a conditional sentence was unavailable for such an offence under s. 742.1, as it then read. As the trial judge found, the fire could have caused injury to many people. I also agree that in all the circumstances, a conditional sentence would not have been a fit disposition – there was evidence of deliberation, financial motive, lack of remorse and a serious risk to others. These circumstances called for a deterrent and denunciatory sentence.

[19] I do, however, accept the appellant’s submission that it was inappropriate to make the restitution order a term of the probation. I would grant leave to appeal the sentence and vary the sentence to make the restitution order a free-standing order under s. 738 of the Criminal Code.

[20] Except for the variation in the restitution order, I would dismiss the appeals from conviction and sentence.

Released: July 21, 2014 (GS)

“G.R. Strathy C.J.O.”

“I agree K. Feldman J.A.”

“I agree David Watt J.A.”