





CITATION:
R. v. Fraser, 2011
          ONCA 238



DATE:  20110328



DOCKET: C48724



COURT OF APPEAL FOR ONTARIO



Doherty, LaForme and Epstein JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Douglas Fraser



Appellant



Phil Downes, for the appellant



M. David Lepofsky, for the respondent



Heard and released orally:
March 22, 2011



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



ENDORSEMENT



[1]

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

[2]

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


The deceased died as a result of smoke inhalation
    caused by a fire in her home.

The appellant intentionally set the fire that
      caused his wifes death.  When he set the
      fire he knew that his wife, as indicated, a paraplegic, would be alone in her
    bed upstairs.

The appellant knew that the manner in which he
      set the fire would in all likelihood result in the homes becoming engulfed in
    flames sometime in the middle of the night.

The appellant knew that the deceased was not
      only severely physically handicapped and would have great difficulty getting
      out of the house, but also that the deceased was very afraid of a fire in the
      home and would in all likelihood panic when she became aware that the house was
      on fire.


[3]

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

[4]

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

[5]

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

[6]

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

[7]

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

[8]

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

[9]

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

[10]

Finally, we note that the trial judge wrongly applied
    the reasonable doubt standard to his determination of the reliability of the appellants
    confession.  That error inured to the
    appellants benefit.

[11]

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

[12]

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

[13]

The appeal is dismissed.

Doherty J.A.

Gloria Epstein J.A.

H.S. LaForme J.A.


