Her Majesty the Queen v. Bos
[Indexed as: R. v. Bos]
Ontario Reports
Court of Appeal for Ontario,
Gillese, Watt and Tulloch JJ.A.
June 7, 2016
131 O.R. (3d) 755 | 2016 ONCA 443
Case Summary
Criminal law — Appeal — Fresh evidence on appeal — Accused convicted of arson — Information in accused's cellphone records put to witnesses for impeachment purposes at trial but records not being proved and admitted as part of evidentiary record — Accused's application to admit cellphone records as fresh evidence on appeal dismissed — Messages not having sufficient probative value to have affected trial result.
Criminal law — Arson — Sentence — Accused convicted of arson after deliberately setting fire in house while owner was upstairs in bed — Fire fortuitously not spreading — Trial judge sentencing accused to 18 months' incarceration — Trial judge not erring in finding that arson was serious and that conditional sentence would not be appropriate.
Criminal law — Evidence — Discreditable conduct — Accused convicted of arson — Case turning on evidence of opportunity and motive — Evidence of accused's lies and misuse of funds relevant to motive — [page756] Probative value of evidence outweighing its prejudicial effect — Trial judge not erring in admitting evidence.
The accused was convicted of arson. The fire was started in a hole in the basement stairway wall of H's farmhouse. The case turned on opportunity and motive. H and the accused were the only two people who could have started the fire. H had proposed to the accused and she had accepted him. The accused had presented herself as a widow with access to considerable amounts of money. Unknown to H, the accused's husband was still alive and still married to her, and she was obtaining funds by going into debt. The accused and H had agreed to purchase a house. It was the Crown's theory that the accused set the fire as an excuse to avoid admitting that she did not have the money to close the purchase of that property, which would have risked exposing her lies about her marriage and the source of her funds. The defence suggested that H started the fire to frame the accused and prevent her from reporting a previous fire in the garage to the police, or as part of an attempted insurance fraud. The trial judge was convinced beyond a reasonable doubt that the accused started the fire. The accused was sentenced to 18 months' incarceration. She appealed the conviction and the sentence.
Held, the appeals should be dismissed.
The trial judge did not err by admitting evidence of the accused's lies and misuse of funds, as that evidence was relevant to the accused's motive -- namely, that she lacked to complete the purchase of the property and the fire was set so she could avoid having to admit that fact. The Crown also argued that the accused was leading a double life and wanted to avoid being found out. She had told people that she and her husband had been separated for several years before 2009, and, in early 2009, she announced that her husband had died. She claimed that she was expecting money from the estate, life insurance and initially also claimed that she had also sold her matrimonial home, although she later said the sale fell through. In fact, she was not separated from her husband until a month after his supposed death, and the separation resulted from his discovery of her affair. Her husband then learned that she had run up thousands of dollars in debt. The accused, who believed she was a widow, proposed marriage, and she accepted. The accused and H were involved in buying properties together, which she had agreed to help finance with her supposed forthcoming inheritance. She did not want any questions raised about her financial affairs which might also result in revealing her double life. The Crown's motive theory was not illogical or speculative and the probative value of the evidence outweighed its prejudicial effect.
The accused sought to adduce her cellphone records for the period embracing the offence as fresh evidence on appeal. Even though her records were not admitted as evidence at trial, information from the accused's cellphone records for the time period embracing the house fire was put to witnesses for impeachment purposes at trial. The proposed evidence was equivocal at best, related to tangential matters or confirmed evidence from the trial. The application to adduce fresh evidence was dismissed as the records did not have sufficient probative value to have affected the result of the trial.
The trial judge found that the fire was purposefully set with full knowledge that H was upstairs in bed, that no attempt was made to alert him to the danger, and that it was purely fortuitous that the fire did not spread and engulf the entire home. He did not err in concluding that this was a serious arson and that a conditional sentence would not be appropriate. [page757]
Cases referred to
R. v. Fox, [2002] O.J. No. 2496, 54 W.C.B. (2d) 428 (C.A.); R. v. Handy (2002), 61 O.R. (3d) 414, [2002] 2 S.C.R. 908, [2002] S.C.J. No. 57, 2002 SCC 56, 213 D.L.R. (4th) 385, 290 N.R. 1, J.E. 2002-1226, 160 O.A.C. 201, 164 C.C.C. (3d) 481, 1 C.R. (6th) 203, 53 W.C.B. (2d) 286; R. v. Hay, [2013] 3 S.C.R. 694, [2013] S.C.J. No. 61, 2013 SCC 61, 312 O.A.C. 201, 451 N.R. 34, 2013EXP-3568, J.E. 2013-1940, EYB 2013-228962, 302 C.C.C. (3d) 147, 6 C.R. (7th) 215, 365 D.L.R. (4th) 276, 110 W.C.B. (2d) 96; R. v. Hirnschall, 2003 CanLII 46450 (ON CA), [2003] O.J. No. 2296, 173 O.A.C. 5, 176 C.C.C. (3d) 311, 58 W.C.B. (2d) 48 (C.A.); R. v. Johnson, [2010] O.J. No. 4153, 2010 ONCA 646, 267 O.A.C. 201, 262 C.C.C. (3d) 404, 80 C.R. (6th) 145, 90 W.C.B. (2d) 638; R. v. Lohrer, [2004] 3 S.C.R. 732, [2004] S.C.J. No. 76, 2004 SCC 80, 249 D.L.R. (4th) 1, 329 N.R. 1, J.E. 2005-163, 208 B.C.A.C. 1, 193 C.C.C. (3d) 1, 24 C.R. (6th) 225, 63 W.C.B. (2d) 216; R. v. M. (P.S.), 1992 CanLII 2785 (ON CA), [1992] O.J. No. 2410, 59 O.A.C. 1, 77 C.C.C. (3d) 402, 17 W.C.B. (2d) 570 (C.A.); R. v. Mirzakhalili, [2009] O.J. No. 5464, 2009 ONCA 905, 257 O.A.C. 27; R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, [1995] O.J. No. 639, 80 O.A.C. 161, 97 C.C.C. (3d) 193, 38 C.R. (4th) 4, 26 W.C.B. (2d) 436 (C.A.); R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126, 106 D.L.R. (3d) 212, 30 N.R. 181, 50 C.C.C. (2d) 193, 14 C.R. (3d) 22, 17 C.R. (3d) 34, 4 W.C.B. 171
Statutes referred to
Criminal Code, R.S.C. 1985, c. C-46, ss. 433(a), 742.1(a) [as am.]
APPEALS by the accused from the convictions, [2012] O.J. No. 3004, 2012 ONSC 3835 (S.C.J.) and from the sentence imposed on October 25, 2012.
Timothy E. Breen, for appellant.
Alexander Alvaro, for respondent.
The judgment of the court was delivered by
TULLOCH J.A.: —
A. Introduction
[1] Either Jim Hoy or the appellant started a fire in a hole in the basement stairway wall of Hoy's 150-year-old farmhouse.
[2] The trial judge was convinced beyond a reasonable doubt that the fire-setter was the appellant, and convicted her of arson under s. 433(a) of the Criminal Code, R.S.C. 1985, c. C-46. He sentenced her to 18 months' imprisonment.
[3] The appellant challenges her conviction and sentence arguing that the trial judge reversed the burden of proof, improperly allowed discreditable conduct evidence, misapprehended evidence and erred in failing to impose a conditional sentence. She also seeks to adduce fresh evidence.
[4] For the reasons that follow, I would dismiss her conviction appeal, grant leave to appeal sentence, but dismiss her sentence appeal. [page758]
B. Background
[5] On June 30, 2009, Hoy and the appellant, who were in a romantic relationship, discovered a burnt-out fire at Hoy's farmhouse in Courtice. The fire was intentionally set. The appellant's husband, Bruce Bos, reported it to police about a week later after learning about it from Hoy. On July 9, police arrested the appellant.
[6] As so many arson cases do, this one depended on evidence of opportunity and motive to establish identity.
[7] Opportunity was simple. Hoy and the appellant were the only people at the house that day. It had to be one of the two of them who set the fire.
[8] Motive was more complicated. To advance their theories on motive, the Crown and defence led evidence on the appellant's relationship with Hoy, her marriage and Hoy's relationship with her husband.
[9] I will begin with the arson evidence, then move on to the motive evidence.
(1) Two fires
[10] There were in fact two fires at Hoy's property: a garage fire and a house fire, one day apart. But the appellant was only charged for the second.
[11] Hoy's and the appellant's testimony conflicted on key aspects surrounding those two fires, including the timing of the discovery of the house fire, which one of them was supposed to provide the closing funds on a property purchase, and whether Hoy refused the appellant's repeated suggestions that they contact the authorities about the first fire.
[12] The timing of the house fire discovery was crucial to opportunity. If the appellant's evidence was accepted, then it must have been Hoy who set the fire. If Hoy's evidence was accepted, it strongly suggested the appellant did it.
[13] The closing funds evidence was relevant to the Crown's motive theory. That theory was, essentially, that the appellant set the fire as an excuse to avoid admitting she did not have the money to close the purchase of the property. That, in turn, would have risked exposing her lies about her marriage, the money she claimed to be receiving from her husband's death and the sale of their matrimonial home.
[14] The evidence about Hoy's refusal to contact the authorities was relevant to the defence theory. The defence suggested that Hoy started the house fire to frame the appellant, putting [page759] her on the defensive, and thus preventing her from reporting the garage fire.
[15] The events in dispute took place at the end of June 2009.
[16] One day before the house fire, on June 29, 2009, there was a fire in Hoy's garage.
[17] Hoy and the appellant left his house sometime between eight and eight thirty that morning. They were headed to their lawyer's office to close the deal on a property they were buying together in Picton.
[18] Before leaving, Hoy showered and got dressed. When he came downstairs, the appellant was waiting for him. Hoy testified that he thought she had stayed the night, but the appellant claimed she arrived at Hoy's that morning two or three minutes before they left. On their way out to the appellant's car, the appellant said she smelled smoke. Hoy was dismissive, and said it was probably coming from his neighbour's property since he often had campfires at night.
[19] On the way to the lawyer's office, it came to light that they did not have the cheque for the closing funds of roughly $100,000. At trial, each said the other was responsible for coming up with the funds. The trial judge accepted that it was the appellant who was supposed to make the payment, and that she did not have the ability to do so.
[20] Despite lacking the closing funds, they continued on. They met with their lawyer at his office in Picton, and then had lunch in town.
[21] Thick smoke filled the garage when they returned to Hoy's at around four in the afternoon. Based on a heavy concentration of soot on the walls and ceiling in the area, a dog biscuit pail, which Hoy had been using as a garbage can, was identified as the source.
[22] Hoy told the appellant that he thought he caused the fire. He said it was from rolling up a large amount of packing tape into two balls. According to him, he felt some heat coming from the balls and concluded that they must have spontaneously combusted. At trial, the fire investigator testified that spontaneous combustion could not be caused by crumpling or rolling packing tape into a ball.
[23] The appellant claimed she implored Hoy to call the fire department, but that he refused, saying they would think he intentionally set his garage on fire. The trial judge rejected that this ever happened.
[24] Hoy and the appellant worked to clean the walls and ceiling of the garage that evening. They worked late into the night, [page760] in part because there was a real estate showing of the house the next day, the last day of the house's listing.
[25] At about one in the morning, the appellant took another item off the wall to clean and said, "it's times like these when you wish that you had less things". Hoy, an antique dealer, took offence. They argued. Hoy left to take a shower and go to bed. The appellant locked up the garage and left.
[26] At about five thirty the following morning, the appellant was again at Hoy's house. On her version of events, she had returned shortly after leaving and had been cleaning up in the garage all through the late night and early morning.
[27] She went upstairs to Hoy's room and he appeared to be sleeping. Hoy testified that she climbed the stairs very quietly so as not to wake him. He pretended to sleep. Hoy said that he was just hoping she would leave and did not want to engage her. She went back downstairs. Hoy said he heard her rummaging around. After a little while, Hoy could wait no longer and got up and went to the washroom.
[28] The appellant heard the toilet flush and then went back upstairs. She climbed into bed with Hoy. Hoy said he could smell smoke. The appellant responded that it must be a residual smell coming from her after cleaning the garage.
[29] Hoy said he smelled her hair, and that it smelled of shampoo, not residual smoke. The appellant testified that she could not smell any smoke at this time.
[30] Hoy decided to investigate. He said he was worried that there was an electrical fire. The two of them looked around the house. They both went into the basement. While there, Hoy said he saw a puff of smoke come out from the bottom of the basement stairway wall leading to the main floor. The appellant testified that she never saw this.
[31] Hoy asked the appellant to feel the wall for heat. She removed the coats and coveralls hanging from the wall that were in the way.
[32] According to the appellant, they did not see or smell any smoke at this time. She said she only remembers seeing one small hole in the wall then. She was running late to get her son, so she left. She returned later after receiving some texts from Hoy. At this time, he showed her the hole in the wall and she saw the small hole, singed, with a bit of gray ash on it. She never saw the large eight-inch hole that day. The trial judge rejected this account, and accepted Hoy's version.
[33] Hoy said that when the appellant removed the coats and coveralls, he noticed an eight-inch-diameter hole in the wall. He looked in the hole and saw something that looked like a paper [page761] towel. When he mentioned this to the appellant, she stuck her finger into the wall, knocking whatever was in there into the cavity, but she said it was not paper towel. He went to get a flashlight to investigate further. The appellant then said she had to take her son to work and left. Hoy saw an orange ember around the large hole, but no fire.
[34] After examining the wall further, Hoy was convinced it was not an electrical fire. He asked his friend Rick Harrington to come over. He messaged the appellant to say they needed to talk.
[35] Hoy and the appellant discussed the house fire later that morning, after the appellant returned from driving her son to work. Hoy told the appellant that if the authorities were called, "one of us would be going to jail".
[36] Hoy testified that the appellant then got "in his face", and said that she was not a criminal and would not be going to jail. He interpreted this to mean that because he had a criminal record, he would be the one that would be blamed.
[37] Hoy's friend Harrington came over. They talked. Hoy decided he would not call the authorities, but would play along with the appellant while he divested himself from the properties they owned together. Neither Hoy nor the appellant ever did call the authorities.
[38] The appellant went later that day to deliver the cheque for the closing funds for the Picton church property. On the way, the appellant pulled over to the shoulder of the highway and sought assistance. An ambulance took her to the hospital. Hoy picked her up and she left the hospital that evening.
[39] The Picton church property deal never closed.
[40] Hoy and the appellant spent the next weekend together, then a few days apart. When she came to his house on July 9, the police were waiting, and arrested her. The appellant's husband had called them after learning about the fire from Hoy.
[41] At the end of October 2009, the fire marshal's office investigated. The investigator concluded that the house fire was intentionally set.
(2) Evidence of motive and context
[42] To support their motive theories, the Crown and defence battled over the appellant's relationship with Hoy, her marriage and Hoy's relationship with her husband. The Crown's version of events was supported by Hoy, Hoy's friends Wayne Valleau and Rick Harrington, and the appellant's husband, Bruce Bos. The appellant testified and said they were all lying. [page762]
[43] As noted above, the Crown's theory was that the appellant was living a double life and that she set the fire as a distraction to prevent that from being exposed to Hoy. The defence suggested Hoy did it as part of an attempted insurance fraud.
[44] On the Crown's version, which the trial judge accepted, Hoy and the appellant started dating in late 2008. They had met through work about 15 years earlier, and became friends over the years. They spent New Year's Eve together that year and went on double dates with Valleau and his wife.
[45] Hoy thought the appellant was separated from her husband. She had been telling people that they split up in the early 2000s.
[46] During a shopping trip in February 2009, the appellant told Hoy, Valleau and Valleau's wife that her husband had just died. She was to receive $287,000 from his estate and his life insurance policy. Later that spring, she told Hoy that she sold their matrimonial home and would receive about $130,000 profit from it. At some point, though, she said the sale had fallen through.
[47] Meanwhile, in mid March, the appellant's husband, Bruce Bos, discovered her affair. They separated. Mr. Bos then learned that she had accumulated $33,000 in credit card debt, that they were in arrears of $15,000 on their mortgage and $13,000 on their son's tuition, and that she had withdrawn $46,000 from their line of credit. The appellant normally looked after their finances. Up to that point, he understood that they were up to date with payments and not carrying that debt.
[48] The appellant moved into Hoy's house after her separation, and stayed there for a few weeks.
[49] They began investing in properties together. The appellant left Hoy's house and moved into a new home in early April. The plan was for Hoy and the appellant to live together at that home, after he sold his house.
[50] The appellant and Hoy also went to Cuba in April for Hoy's nephew's wedding. While there, Hoy proposed. The appellant accepted.
[51] Hoy executed a new will in May 2009. He named his "fiancée Melanie Bos" as the trustee and executor of his estate. He left much of his estate to her and made bequests to her children.
[52] After the house fire at the end of June, Hoy's friend Valleau hired a private investigator. He learned that the appellant was still married, and provided Hoy with Bruce Bos' phone number. The two men had never met at that point. [page763]
[53] Hoy spoke to Bruce Bos on July 7. They met at a fast-food restaurant on July 8, together with the appellant and Bos' daughter. Hoy still did not want to report the matter to police. Bos went ahead and made the call anyway.
[54] Following the appellant's release on bail, she returned to her house. She reported a break-in to police. While there, the police found a letter to Canadian Pardon Services, signed by the appellant, supporting Hoy's application for a pardon for crimes committed around the early 1980s. In that letter, the appellant stated that she was a widow.
[55] The appellant offered a very different version of events.
[56] Her evidence, which the trial judge rejected, was that much of this was all lies. Despite agreeing that she spent Boxing Day and New Year's Eve with Hoy, travelled to Buffalo with him in February, and lived at his house for a few weeks beginning in mid March, she said that they had a platonic relationship until April. She denied that they were ever engaged even though she had an engagement ring, said that they were engaged in her statement to police, and had a copy of Hoy's will, which identified her as his fiancée in May 2009.
[57] She said that she never told people her husband was dead. She never wrote the pardon letter, which must have been a forgery. She never said she and her husband were separated until they actually were in March 2009, and the only reason she did not wear her wedding ring was because of the industrial nature of her work (she managed an automotive plant).
[58] Rather, she told Hoy she was married and about how her husband raped and physically abused her. He even picked her up from the hospital after her husband abused her once. She added that Hoy and her husband had met on a number of occasions. Finally, she had lent Hoy a lot of money, and was not pooling resources with him. She would not have agreed to extend herself further for the Picton church property.
C. Trial Decision
[59] In lengthy, detailed reasons for judgment, the trial judge convicted the appellant of arson.
[60] The trial judge found that the appellant was not credible, in part because of her testimony on the background facts relevant to context and motive. He felt that she appeared to be tailoring her evidence at trial and trying to argue her case through her testimony. He rejected all of her evidence on critical issues.
[61] The trial judge accepted Hoy's evidence, including, crucially, on when the fire was discovered. He carefully scrutinized Hoy's testimony, noting that he was rude, disrespectful [page764] and inconsistent. However, he did not believe that Hoy was lying on the essential points of his evidence.
[62] The trial judge accepted Hoy's evidence that he would not have profited from an insurance claim. He also accepted that the appellant never suggested reporting the garage fire. Accordingly, he rejected the defence's proposed motive theories for Hoy: that Hoy set the garage fire for insurance funds and that he set the house fire to scare her from reporting the garage fire.
[63] He declined to make a finding on who set the garage fire, noting that the appellant had not been charged with it.
[64] In the end, the trial judge concluded that he was not left with a reasonable doubt as to where the truth of the matter lay. On all the evidence, he was convinced of the appellant's guilt beyond a reasonable doubt.
[65] At sentencing, he rejected defence submissions that the appellant should receive a suspended sentence or a conditional sentence. He felt that the sentencing principles and objectives required a custodial sentence. He sentenced her to 18 months' imprisonment.
D. Issues on Appeal
[66] The following issues have been raised on appeal:
Did the trial judge improperly admit discreditable conduct evidence?
Did the trial judge reverse the burden of proof?
Did the trial judge misapprehend evidence?
Should fresh evidence be received?
Did the trial judge err by failing to impose a conditional sentence?
[67] I would answer no to each question and dismiss the appeal.
E. Conviction Appeal
(1) Discreditable conduct evidence
[68] The appellant argues that the trial judge erred by admitting evidence of the appellant's lies and misuse of funds, and that this error led to an unfair trial. According to the appellant, that presumptively inadmissible discreditable conduct evidence lacked relevance and was highly prejudicial. [page765]
[69] To support this ground of appeal, the appellant attacks the Crown's motive theory as illogical. She submits that her failure to close the Picton church purchase, for which the fire was allegedly set to provide an excuse, would not make it more likely that Hoy would discover her double life. Thus, any evidence adduced to support that illogical theory, such as her misappropriation of funds from her husband, is necessarily irrelevant.
[70] She adds that the admission of this evidence had a profound prejudicial impact on the trial. The contest over the facts sought to be inferred from this evidence dominated the trial, distracting the trial judge from the central issues of motive and opportunity.
[71] In my view, this evidence was relevant to motive and properly admitted.
[72] Evidence is discreditable when it tends to show conduct of the accused, which would be viewed with disapproval by a reasonable person, beyond what is alleged in the indictment: see, e.g., R. v. Johnson, [2010] O.J. No. 4153, 2010 ONCA 646, at para. 90.
[73] Such evidence is presumptively inadmissible because "[i] ts potential for prejudice, distraction and time consumption is very great and these disadvantages will almost always outweigh its probative value": R. v. Handy (2002), 61 O.R. (3d) 414, [2002] 2 S.C.R. 908, [2002] S.C.J. No. 57, 2002 SCC 56, at para. 37.
[74] In Johnson, at paras. 97-101, Rouleau J.A. discussed the jurisprudence on discreditable conduct evidence adduced to support motive. He explained that such motive evidence is not automatically admissible. Rather, the trial judge must satisfy herself or himself that the probative value of the evidence outweighs its prejudicial effect. He noted that discreditable conduct evidence that is adduced to advance a speculative theory of motive ought to be excluded. However, "evidence that provides the trier of fact with real insight into the background and relationship between the accused and the victim, and which genuinely helps to establish a bona fide theory of motive is highly probative", and thus more likely to outweigh its inherent prejudicial effect: Johnson, at para. 101.
[75] In this case, I am satisfied that the impugned evidence was discreditable. The appellant's lies and misuse of family funds, which also involved a breach of her husband's trust, are all examples of conduct a reasonable person would view with disapproval. [page766]
[76] The question, then, is whether the probative value of this evidence outweighed its inherent prejudicial effect. In my view, it did.
[77] The Crown's motive theory was that the appellant set the fire to distract Hoy from concluding that she could not provide the Picton church closing funds.
[78] Both the fact that she was overextended financially and that she would go to great lengths to buy properties with Hoy were essential to understanding that theory. Also adding to that understanding was the fact that she lied about coming into hundreds of thousands of dollars from her supposedly dead husband's estate and life insurance policy, and that she had sold the house that her "dead" husband was actually living in.
[79] It is fair to infer that had she just admitted that she could not come up with the money for the Picton church closing that it might have raised questions about her financial affairs, which might have, in turn, attracted further attention to the lies she had told Hoy, risking the exposure of her double life.
[80] In his reasons, the trial judge drew these inferences and made these findings of facts. He accepted the Crown's motive theory. He found that she was financially strapped after drawing on the Bos family bank accounts and lines of credit. He accepted that the appellant was to come up with the roughly $100,000 for the Picton church closing, but that she could not do so. He also noted that, on other occasions, some distraction or diversion took place that provided the appellant with an excuse for not delivering the closing funds. He found that the appellant was motivated to protect the lifestyle and relationship she was enjoying with Hoy.
[81] As the appellant notes, this case turned on motive and opportunity. I disagree that the Crown's motive theory was illogical or speculative. To the contrary, establishing motive was highly probative towards discovering the truth behind the house fire.
[82] The probative value of that evidence outweighed its prejudicial effect. It is true that the contest over the facts to be inferred from this evidence was time-consuming. And, at times, the reasons suggest that some of the details of the appellant's double life may have been distracting.
[83] In the end, however, I am convinced that the trial judge was focused on the crucial issue of reasonable doubt when coming to his verdict.
[84] I also note that he expressly acknowledged in his reasons that the fact that the appellant was capable of deceit and living [page767] a double life did not lead him to the conclusion that she set the house fire.
[85] I would reject this ground of appeal.
(2) Reversing the burden of proof
[86] The appellant complains that the trial judge approached this case as a credibility contest and shifted the burden to the defence to establish that the appellant was the victim of an elaborate scheme among Hoy, his friends and her husband.
[87] I disagree.
[88] The trial judge found that the fire was intentionally set. He accepted the evidence of both Hoy and the appellant that they were the only people at the house that day. It had to be one of them that set it. He rejected the appellant's evidence, finding her not to be credible on the central issues of the trial. He accepted Hoy's evidence, after carefully scrutinizing it. On Hoy's evidence, the appellant was the only person who could have set the fire. He also accepted the Crown's motive theory, while rejecting the motive theories proposed for Hoy.
[89] I do not read the trial judge's reasons as reversing the burden of proof. His reasons do at times seem to focus on explaining why he does not agree with alleged weaknesses in the Crown's case. However, to me, they merely reflect that he was responsive to the defence's arguments and theory of the case, although he obviously rejected them.
[90] The trial judge expressly stated that he was not left in a state of uncertainty as to where the truth of the matter lay. He stated that he was satisfied beyond a reasonable doubt on all of the evidence that the appellant intentionally set the house fire, knowing that Hoy was in the house at the time.
[91] He did not reverse the burden of proof. I note that this is not a case where he faulted the defence for failing to prove some matter at issue, or for which he made a finding of fact on the basis that the defence failed to provide any evidence to the contrary. Nor did he ignore that he could still be left with a reasonable doubt even if he preferred the evidence favourable to the Crown to that supportive of the defence.
[92] I would dismiss this ground of appeal.
(3) Misapprehension of evidence
[93] The appellant claims that the trial judge misapprehended evidence about the garage fire and about her presence at the time the house fire was discovered. [page768]
[94] In my view, the trial judge did not misapprehend the evidence on those issues and, if he did, I would not give effect to this ground of appeal.
[95] As Doherty J.A. noted in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, [1995] O.J. No. 639, 97 C.C.C. (3d) 193 (C.A.), at p. 218 C.C.C., "A misapprehension of the evidence may refer 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."
[96] However, not every misapprehension of evidence results in a miscarriage of justice, unreasonable verdict or error of law that allows this court to overturn a conviction. Indeed, Binnie J. explained in R. v. Lohrer, [2004] 3 S.C.R. 732, [2004] S.C.J. No. 76, 2004 SCC 80, at para. 2, that the standard is stringent:
The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but "in the reasoning process resulting in a conviction".
(a) The garage fire
[97] On the garage fire, the appellant submits that the trial judge failed to give proper effect to evidence that indicated that Hoy intentionally started the fire: he had the best opportunity to do so, stood to benefit from his insurance on the property, gave inconsistent testimony on whether he smelled the smoke before leaving that morning, and claimed that he accidentally started it because tape he rolled up spontaneously combusted.
[98] That evidence is significant, she says, because it supported her theory that Hoy framed her for the house fire to prevent her from reporting him for the garage fire. In her view, it is a virtual certainty that the same person was responsible for both fires.
[99] The trial judge's reasons demonstrate that he understood this theory, yet dismissed it as speculative.
[100] In my view, he was entitled to do so. That is especially so considering the findings of fact that he did make, which supported his rejection of the defence theory, and which are owed deference on review. I will explain.
[101] The defence theory depended on the trial judge accepting a level of probability for two inferences from which the third inference -- that Hoy set the house fire -- could reasonably be drawn. Those two intermediate inferences are that first, Hoy set [page769] the garage fire, and second, that Hoy had a motive to frame the appellant afterward.
[102] For the first inference, while Hoy had opportunity to set the garage fire, the trial judge rejected the only apparent motive he would have had to start that fire, namely, to collect home insurance. That finding was based on accepting Hoy's evidence that he would not have benefitted from an insurance claim, and is entitled to deference.
[103] Of note, the appellant, on the other hand, had the motive to set the house fire as the trial judge found. She had to provide an excuse for not delivering the closing funds -- and, as he found, she later did make an excuse that day to avoid discovery of her inability to close the deal. Also, even on her evidence, she had about two to three minutes of opportunity to start the garage fire.
[104] In addition, I note that the expert evidence was equivocal on whether the garage fire was intentionally set, and that the trial judge made no finding to that effect. The proposition that Hoy set the garage fire was far from being a sure thing.
[105] For the second inference, the trial judge's findings of fact seriously undermine the possibility of it being true. He accepted Hoy's testimony that the appellant never discussed reporting the garage fire with him, and he rejected her testimony that she made repeated demands that Hoy contact the authorities. As the trial judge noted, absent such discussions or demands taking place, it seems unlikely that Hoy -- who at that point gave all indications of being happy in his relationship with the appellant -- would be motivated to frame her.
[106] Based on the trial judge's factual findings, I do not believe that he erred in dismissing the defence theory as speculative or that he failed to give proper effect to the evidence the appellant contends supported her theory that Hoy framed her for the house fire to prevent her from reporting him for setting the garage fire.
(b) The appellant's presence when the house fire was discovered
[107] The appellant testified that the morning of the house fire she searched for the fire with Hoy, moved the coats and coveralls from the wall where the fire was eventually discovered, saw no evidence of a fire there, left to drive her son to work, returned, and then, for the first time, saw a hole in the wall and evidence of a fire.
[108] On appeal, she impugns the following passage from the trial judge's reasons, at para. 266: [page770]
The fact that she states that she removed the coats and coveralls and saw some ash around a much smaller hole, leads to the conclusion that she was present when a hole and evidence of burning was located. Accordingly, I find that Melanie Bos was present when the hole was discovered with burning embers and that very shortly after this discovery, she left the home to drive her son to work.
(Emphasis added)
[109] The appellant claims that the trial judge's reasons demonstrate that he misapprehended her evidence about when she saw the ash around the smaller hole. His reasons, she says, show the trial judge thought she testified that she saw the ash after removing the coats and coveralls but before she left to drive her son to work. Her actual testimony, meanwhile, was that she saw the ash after returning from driving her son to work. The appellant submits that the significance of this misapprehension is that it was then used as an admission of opportunity and to corroborate Hoy's testimony.
[110] The trial judge's reasons must be read in context and as a whole. After having done so, I am satisfied that, although his reasons are somewhat ambiguously worded, the trial judge did not misapprehend the appellant's evidence on this issue.
[111] The underlined, impugned sentence could be read in two ways. The first interpretation, as suggested by the appellant, is that the trial judge thought the appellant testified that the removal of the coats and her viewing of the ash happened at about the same time. The second interpretation, which I find the record bears out, is that both the fact that she agreed that she removed the coats and coveralls and the fact that she agreed she saw ash around the hole, albeit at a later time, support his conclusion that she was present when the fire was discovered.
[112] I come to this conclusion for the following reasons. First, the trial judge correctly set out her testimony earlier in his reasons. Presumably, he did not forget what he wrote on p. 33 by the time he got to p. 66.
[113] Second, the trial judge began the impugned paragraph by accepting Hoy's evidence that he observed the glowing embers after the appellant removed the coats and coveralls. The appellant's testimony that she removed the coats and saw ash around the hole is corroborative of that account, although obviously the trial judge rejected her evidence about the timing of when she saw the ash.
[114] Third, the appellant's defence theory was that Hoy set the fire to frame her during the window of opportunity that her driving her son to work created. It seems implausible that he would have misunderstood her to have testified to a fact that [page771] completely undermined that theory, or that, had he done so, he would not have commented on it further.
[115] In any event, even had the trial judge misapprehended her evidence on this point, I am not satisfied that it would have led to a miscarriage of justice. The trial judge found that she was not a credible witness on the central issues of the case. A misapprehension of the impugned evidence would not have played a central role in the trial judge's reasoning process resulting in conviction.
(4) Fresh evidence
[116] The appellant asks this court to admit her cellphone records for the time period embracing the house fire. While much of the information in these records was put to witnesses for impeachment purposes at trial, they were never proved and admitted as part of the evidentiary record.
[117] The appellant submits that the cellphone records are highly relevant to the decisive issue of her opportunity to set the fires. She highlights the following records:
text messages allegedly from her children between 5:18 a.m. and 7:21 a.m. on the day of the garage fire that she says confirms her testimony that she drove her children to work before going to Hoy's house that day;
telephone calls to the Picton law office at 8:35 a.m. on the morning of the garage fire, which she says confirms her evidence about the calls she made on the way to Picton;
a text from Hoy at 1:45 a.m. the night before the house fire stating, "I wrote you a note and left it on the chair by the door you can read it tomorrow it should make you happy";
texts from Hoy on June 30, the morning of the house fire, stating at 6:19 a.m. "sorry again", at 7:02 a.m. "nothing is different in the garage", and at 7:04 a.m. "are you trying to kill me", which she says supports her evidence that the fire had not been discovered before she left at around 6 a.m.; and
text messages the day of the house fire and the next two days, which she says support her account of her discussions with Hoy about the delivery of the cheque to the lawyer in Picton.
[118] Appeals are generally limited to the evidence adduced at trial. In some cases, however, the interests of justice require that appellate courts admit fresh evidence and expand the [page772] evidentiary record. That is because the potential for a miscarriage of justice outweighs countervailing concerns of finality and order, values essential to the integrity of the criminal process: R. v. Hay, [2013] 3 S.C.R. 694, [2013] S.C.J. No. 61, 2013 SCC 61, at para. 64; R. v. M. (P.S.), 1992 CanLII 2785 (ON CA), [1992] O.J. No. 2410, 77 C.C.C. (3d) 402 (C.A.), at p. 411 C.C.C. In my view, this is not one of those cases.
[119] The Supreme Court has established the following factors for an appellate court to consider when deciding a fresh evidence application: (1) whether by due diligence the party seeking to admit the fresh evidence could have adduced it at trial; (2) whether the evidence bears upon a potentially decisive issue; (3) whether the evidence is reasonably capable of belief; and (4) whether it could reasonably be expected to have affected the result at trial, if believed: R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126, at p. 775 S.C.C.; Hay, at para. 63.
[120] Notwithstanding that the due diligence factor weighs against admission, I would dismiss the fresh evidence application simply because these messages do not have sufficient probative value to have affected the result at trial.
[121] The garage fire morning text messages do little to assist the appellant. As explained above, I disagree that it was "a virtual certainty" that both fires were started by the same person. In any event, even on her evidence she had opportunity to set the garage fire. The proposed cellphone evidence would, at best, support her testimony that she only had about two to three minutes to do so, rather than all morning.
[122] The remaining texts are either consistent with Hoy's evidence at trial or insignificant. He testified that he did not immediately form the opinion that she intentionally set the fire. And the texts about the cheque merely offer confirmation that someone was supposed to bring a cheque to the law office -- they do nothing to resolve the conflict over who was supposed to do so.
[123] This proposed evidence is equivocal at best, relates to tangential matters or merely confirms what was already established at trial. It could not reasonably be expected to affect the trial judge's decision. I would dismiss the fresh evidence application.
F. Sentence Appeal
[124] The appellant challenges the trial judge's refusal to impose a conditional sentence. While I would grant leave to appeal sentence, I would dismiss the sentence appeal. [page773]
[125] The trial judge held that he could not impose a conditional sentence because he was not satisfied "that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2": Code, s. 742.1(a).
[126] The trial judge's findings included the following:
the fire was purposely set with full knowledge that Hoy was upstairs in bed;
no attempt was made to alert him to the danger;
the location of the fire was hidden (behind the coats and coveralls);
there was an element of planning; and
the fact that the fire did not spread and engulf the entire home was due to good luck and not good management since it was the lack of oxygen in the wall that extinguished the fire.
[127] Based on these findings, the trial judge did not err in holding that this was a serious arson offence, an offence for which this court has consistently held conditional sentences are inappropriate: see, e.g., R. v. Mirzahkalili, [2009] O.J. No. 5464, 2009 ONCA 905, 257 O.A.C. 27; R. v. Fox, [2002] O.J. No. 2496, 54 W.C.B. (2d) 428 (C.A.); R. v. Hirnschall, 2003 CanLII 46450 (ON CA), [2003] O.J. No. 2296, 176 C.C.C. (3d) 311 (C.A.).
[128] The appellant also claims that the trial judge improperly relied on evidence of her post-offence psychiatric health to support a finding of dangerousness.
[129] In my view, the trial judge's reasons do not bear out the appellant's complaints. In any event, he also held that, even if he were wrong about her posing a danger to the community, the imposition of a conditional sentence would not be consistent with the fundamental principles of sentencing, namely, general deterrence, specific deterrence and denunciation.
[130] Accordingly, I would not interfere with the trial judge's imposition of a custodial sentence or with the length of the sentence he imposed.
G. Disposition
[131] For these reasons, I would dismiss the conviction appeal. I would grant leave to appeal sentence, but dismiss the sentence appeal.
Appeals dismissed.
[page774]
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