



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sousa, 2014 ONCA 550

DATE: 20140721

DOCKET: C56227

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

BETWEEN

Her Majesty the Queen

Respondent

and

Fernanda Sousa

Appellant

Paul Burstein, for the appellant

Sean Doyle, for the respondent

Heard: June 26, 2014

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

Strathy C.J.O.:

[1]

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

[2]

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

[3]

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

·

her neighbour saw her leaving her home shortly before he observed
    smoke coming from the house;

·

she was the last person to leave the house on the morning of the
    fire;

·

on entering the house, the neighbour discovered the contents of a
    pot burning on the stove;

·

fire investigators discovered an iron in a second floor closet,
    sitting in the middle of a pile of burned clothing;

·

in the words of the trial judge, a serious, serious quantity of
    orange paint had been sprayed throughout the main floor of the house, on walls,
    flooring, furniture and other objects, but not on any of the expensive articles
    on the wall;

·

although the appellant claimed she had sprayed the paint the
    night before the fire because she was angry with her husband, he testified he
    had not seen any paint when he left the house earlier that morning;

·

there was a financial motive  the family business was losing
    money and the appellant had made overdue payments on the familys tenant
    insurance policy a few days before the fire and had asked the insurance agent
    for information about their coverage; and

·

after her release from police custody on arrest, the appellant went
    to see her landlord, the owner of the home, and admitted to having started the
    fire. She claimed an unknown intruder had put a knife to her throat, threatened
    that he would kill her daughter and forced her to start the fire.

[4]

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

[5]

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

[6]

The trial judge ruled the statement voluntary and admissible.

(1)

Conviction Appeal

(a)      Admissibility of
    Statements

[7]

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

[8]

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

[9]

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

(b)
Use of Extrinsic Evidence

[10]

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

(c)
Misapprehension of the Evidence

[11]

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

(i)

he repeated his error
    with respect to extrinsic evidence by reasoning that the appellants statement
    was likely to be true because she provided accurate details;

(ii)

he erred in finding the
    homeowners evidence about the appellants apology to be reliable because she
    had been paid by her insurance company and had no motive to lie when she had
    suffered other losses not compensated by insurance; and

(iii)

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

[12]

The
    decision of this court in
R. v. Morrissey

(1995), 97 C.C.C.
    (3d) 193 (C.A.) has frequently been cited for the test for whether there has
    been a misapprehension of the evidence which vitiates the conviction. In that
    case, Doherty J.A. stated at p. 221,

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

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

(i)
Extrinsic evidence

[13]

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

(ii)
The homeowners
    evidence

[14]

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

(iii)
Two fires

[15]

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

[16]

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

[17]

In
    my view, if there was a misapprehension of the evidence in this regard  and I
    am not satisfied the trial judge was mistaken as to the substance of the
    evidence  it does not rise to the
Morrissey

standard because
    the alleged error did not play an essential part in the reasoning process. The
    fact of two fires on two separate floors was sufficient to rule out accident.

(2)

Sentence Appeal

[18]

I agree with the respondent that the
    trial judge implicitly accepted the submission of the Crown that this was a
    serious personal injury offence as defined in s. 752 of the
Criminal

Code
, R.S.C. 1985, c. C-46,

and that a
    conditional sentence was unavailable for such an offence under s. 742.1, as it then
    read. As the trial judge found, the fire could have caused injury to many
    people. I also agree that in all the circumstances, a conditional sentence
    would not have been a fit disposition  there was evidence of deliberation,
    financial motive, lack of remorse and a serious risk to others. These
    circumstances called for a deterrent and denunciatory sentence.

[19]

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

[20]

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

Released: July 21, 2014 (GS)

G.R. Strathy C.J.O.

I agree K. Feldman J.A.

I agree David Watt J.A.


