



COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Fournel, 2014 ONCA 305


DATE: 20140422

DOCKET: C55283

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

BETWEEN

Her Majesty the Queen

Respondent

and

Cecile Fournel

Appellant

Brian H. Greenspan and Jill Makepeace, for the appellant

Ian Bulmer, for the respondent

Heard: February 10, 2014

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

Pardu J.A.:

[1]

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

[2]

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

[3]

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

[4]

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

1)

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

2)

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

3)

by failing to
    adequately scrutinize the evidence of Boudreau.

[5]

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

[6]

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

Facts

Background

[7]

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

The Events of February 25

[8]

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

[9]

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

[10]

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

[11]

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

[12]

The
    morning after the fire, Palaszewski sought to blame the incident on Boudreau. Boudreau
    believed that Palaszewski would use the fire against her and that she would
    lose her children. Later that day, Boudreau provided statements to Deputy Fire
    Chief Joey Stojkiewicz and went to inspect her house with him and another fire
    fighter. She also obtained legal advice that day, because she was puzzled by
    the fact that the drink made her disoriented and had concluded that things
    didnt add up. Boudreau testified that, as a result of that legal advice, she
    tendered a urine sample for a toxicology test at 10:15 a.m.

David Martins Evidence

[13]

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

[14]

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

[15]

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

The Police Investigation

[16]

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

[17]

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

[18]

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

[19]

A
    search of the appellants residence was conducted several days later. No
    relevant medications were found, but police seized and searched the appellants
    computer equipment. They discovered several of the appellants e-mail messages
    about Boudreau; in one, she referred to Boudreau as akin to her worst enemy;
    in another, she told a friend that she didnt have much of a chance of stopping
    Boudreau from moving to Sudbury but would try anyway. The appellant was
    arrested for attempted murder and arson on March 13.

The Toxicology Report

[20]

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

The Opinion of the Office
    of the Fire Marshall

[21]

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

[22]

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

Decision Below

Decision on Charges

[23]

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

[24]

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

[25]

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

[26]

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

[27]

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

[28]

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

[29]

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

[30]

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

[31]

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

·

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

·

Boudreaus inconsistencies in this respect were of no moment;

·

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

·

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

·

Martins evidence, while troubling, did not raise questions on
    the important points of Boudreaus evidence.

[32]

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

[33]

Third,
    on the attempted murder charge, the trial judge was not satisfied that the
    appellant had a specific intent to cause Boudreaus death.

Decision on Sentence

[34]

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

[35]

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

[36]

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

Issues

[37]

The
    appellant argues that the trial judge made the following errors:

(1)

She failed to recognize that the opinion of the Office of the Fire
    Marshall could not support a conclusion that the fire was intentionally set
    because Choudrys examination could not eliminate the possibility of an
    electrical cause to the fire, and because Horns opinion that the fire was
    intentionally set was unreliable and incompatible with the scene of the fire;

(2)

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

(3)

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

(4)

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

Analysis

Governing Principles

[38]

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

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

[39]

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

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

[40]

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

Choudrys evidence

[41]

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

[42]

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

[43]

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

[44]

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

Horns
    Evidence

[45]

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

[46]

The
    appellant submits that Horns theory of the fire is riddled with frailties and
    does not
fit
the scene. In support of this argument, the appellant renews
    several attacks on Horns evidence that were previously advanced at trial.

[47]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[48]

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

[49]

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

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

[50]

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

[51]

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

[52]

In
    any event, there was independent evidence linking the appellant to the Nytol,
    namely the surveillance video, in a drug store which clearly showed the
    appellant purchasing Nytol within an hour of her arrival at the complainants
    home. In the end, Martins evidence added nothing of substance to the Crowns
    case.

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

[53]

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

[54]

The
    appellant does not identify any omission or misapprehension in the trial judges
    scrutiny of Boudreaus evidence. The trial judge was aware of all of the
    factors potentially undermining Boudreaus credibility and dealt with them as
    follows:

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

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

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

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

[161] I find that Chantal Boudreaus evidence was confirmed as
    follows:

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

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

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

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

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

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

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

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

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

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

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

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

13.     That Chantal Boudreau didnt usually smoke in house was
    confirmed by Mme Faucher who saw her outside in the garage;

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

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

16.     That Chantal Boudreau was affected by a substance was
    confirmed by Cecile Fournel in her statement she was loaded and by Celine
    Faucher she leaned on Evan Palaszewski to walk, Mr. Faucher that her knees
    buckled, Lise Boudreau that she kept her eyes closed and wanted to go to
    sleep, also confirmed by Cecile Fournel in statement and to Bev Mackey, put
    her to bed and by Mrs. Boudreau that in the hours after the fire, she wasnt
    very alert;

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

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

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

[55]

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

[56]

Based
    on the above, I would dismiss the appellants appeal from conviction.

Appeal from sentence

[57]

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

[58]

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

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

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

[59]

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

[60]

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

[61]

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

1)

The appellants
    serious betrayal of someone in a close relationship with her, who trusted and
    relied upon her;

2)

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

3)

The appellants
    position as a police officer, and the violation of the community expectation
    she would obey the law;

4)

Her endangerment of the
    complainants life.

[62]

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

[63]

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

[64]

I
    would grant leave to appeal sentence but would dismiss the appeal.

Released: April 22, 2014


(A.H.)                                                                             G.
    Pardu J.A.


I
    agree Alexandra Hoy A.C.J.O.

I
    agree H.S. LaForme J.A.


