



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bos, 2016 ONCA 443

DATE: 20160607

DOCKET: C56169

Gillese, Watt and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Melanie Bos

Appellant

Timothy E. Breen, for the appellant

Alexander Alvaro, for the respondent

Heard: February 3, 2016

On appeal from the convictions entered by Justice J.
    Bryan Shaughnessy of the Superior Court of Justice on June 29, 2012, with
    reasons reported at 2012 ONSC 3835, and from the sentence imposed on October
    25, 2012.

Tulloch J.A.:

A.

Introduction

[1]

Either Jim Hoy or the appellant started a fire in a hole in the basement
    stairway wall of Hoys 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.

B.

Background

[5]

On June 30, 2009, Hoy and the appellant, who were in a romantic
    relationship, discovered a burnt-out fire at Hoys farmhouse in Courtice. The
    fire was intentionally set. The appellants 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 appellants relationship with Hoy, her
    marriage, and Hoys 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 Hoys property: a garage fire and a house
    fire, one day apart. But the appellant was only charged for the second.

[11]

Hoys and the appellants 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 appellants 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 appellants evidence was accepted, then it must have been Hoy who set the
    fire. If Hoys evidence was accepted, it strongly suggested the appellant did
    it.

[13]

The closing funds evidence was relevant to the Crowns 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 husbands death and the sale of
    their matrimonial home.

[14]

The evidence about Hoys 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 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
    Hoys garage.

[17]

Hoy and the appellant left his house sometime between eight and eight
    thirty that morning. They were headed to their lawyers 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 Hoys that morning two or
    three minutes before they left. On their way out to the appellants car, the
    appellant said she smelled smoke. Hoy was dismissive, and said it was probably
    coming from his neighbours property since he often had campfires at night.

[19]

On the way to the lawyers 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 Hoys 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, in part because there was
    a real estate showing of the house the next day, the last day of the houses
    listing.

[25]

At about one in the morning, the appellant took another item off the
    wall to clean and said its 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
    Hoys house. On her version of events, she had returned shortly after leaving
    and had been cleaning up in the garage all though the late night and early
    morning.

[27]

She went upstairs to Hoys 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 Hoys 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 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]

Hoys 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 appellants husband had called them after learning about the
    fire from Hoy.

[41]

At the end of October 2009, the Fire Marshalls 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
    appellants relationship with Hoy, her marriage, and Hoys relationship with
    her husband. The Crowns version of events was supported by Hoy, Hoys friends
    Wayne Valleau and Rick Harrington, and the appellants husband, Bruce Bos. The
    appellant testified and said they were all lying.

[43]

As noted above, the Crowns 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 Crowns 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 Years 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 Valleaus 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 appellants 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 sons 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 Hoys house after her separation, and stayed
    there for a few weeks.

[49]

They began investing in properties together. The appellant left Hoys 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 Hoys nephews
    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, Hoys friend Valleau hired a
    private investigator. He learned that the appellant was still married, and provided
    Hoy with Bruce Boss phone number. The two men had never met at that point.

[53]

Hoy spoke to Bruce Bos on July 7. They met at a fast-food restaurant on
    July 8, together with the appellant and Boss daughter. Hoy still did not want
    to report the matter to police. Bos went ahead and made the call anyway.

[54]

Following the appellants 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 Hoys 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 Years 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 Hoys 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 Hoys evidence, including, crucially, on when
    the fire was discovered. He carefully scrutinized Hoys testimony, noting that
    he was rude, disrespectful, and inconsistent. However, he did not believe that
    Hoy was lying on the essential points of his evidence.

[62]

The trial judge accepted Hoys 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 defences 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 appellants 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:

1) Did the
    trial judge improperly admit discreditable conduct evidence?

2) Did the trial judge reverse the burden of proof?

3) Did the trial judge misapprehend evidence?

4) Should fresh evidence be received?

5) 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 appellants 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.

[69]

To support this ground of appeal, the appellant attacks the Crowns
    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 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 SCC 56, [2002] 2 S.C.R. 908, 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 appellants lies and misuse of family funds, which also
    involved a breach of her husbands trust, are all examples of conduct a
    reasonable person would view with disapproval.

[76]

The question then is whether the probative value of this evidence outweighed
    its inherent prejudicial effect. In my view, it did.

[77]

The Crowns 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 husbands
    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 Crowns 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 Crowns 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 appellants double life may have been distracting.

[83]

In the end, however, I am convinced that the trial judge was focussed 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 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
    appellants evidence, finding her not to be credible on the central issues of
    the trial. He accepted Hoys evidence, after carefully scrutinizing it. On Hoys
    evidence, the appellant was the only person who could have set the fire. He
    also accepted the Crowns motive theory, while rejecting the motive theories
    proposed for Hoy.

[89]

I do not read the trial judges 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 Crowns case. However, to me, they merely
    reflect that he was responsive to the defences 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.

[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), 97 C.C.C. (3d)
    193 (Ont. C.A.), at p. 218, 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 SCC 80, [2004] 3 S.C.R. 732, 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 judges 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
    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 Hoys 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 judges findings of fact seriously undermine the possibility
    of it being true. He accepted Hoys 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 judges 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 appellants 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 judges reasons, at para. 268:

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 judges 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 Hoys testimony.

[110]

The trial
    judges 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 appellants 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 page 33 by the time he got to page 66.

[113]

Second, the
    trial judge began the impugned paragraph by accepting Hoys evidence that he
    observed the glowing embers after the appellant removed the coats and
    coveralls. The appellants 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
    appellants 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 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 judges reasoning process resulting in conviction.

(4)

Fresh evidence

[116]

The appellant
    asks this court to admit her cell phone 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 cell phone 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 Hoys 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 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
    SCC 61, [2013] 3 S.C.R. 694, at para. 64;
R. v. M. (P.S.)
(1992), 77
    C.C.C. (3d) 402 (Ont. C.A.), at p. 411. 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:
Palmer v.
    The Queen
, [1980] 1 S.C.R. 759, at p. 775;
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 cell phone 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 Hoys 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 judges decision. I would dismiss the fresh
    evidence application.

F.

Sentence appeal

[124]

The appellant
    challenges the trial judges refusal to impose a conditional sentence. While I
    would grant leave to appeal sentence, I would dismiss the sentence appeal.

[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
    judges 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 ONCA
    905, 257 O.A.C. 27;
R. v. Fox
, [2002] O.J. No. 2496;
R. v.
    Hirnschall
(2003), 176 C.C.C. (3d) 311 (Ont. 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 judges reasons do not bear out the appellants 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 judges 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.

Released: EEG  JUN 7, 2016

M. Tulloch J.A.

I agree. E.E.
    Gillese J.A.

I agree. David Watt
    J.A.


