



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. MacIsaac, 2017 ONCA 172

DATE: 20170301

DOCKET: C61807

Weiler, Pepall and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David Ernest MacIsaac

Appellant

Andrew Burgess, for the appellant

Craig Harper, for the respondent

Heard: January 10, 2017

On appeal from a conviction entered January 6, 2016 by
    Justice R. Dan Cornell of the Superior Court of Justice, with reasons reported
    at 2016 ONSC 67.

Trotter J.A.:

A.

introduction

[1]

David MacIsaac burned down his two-storey building in Espanola and then attempted
    to collect the insurance proceeds. He was convicted of arson under s. 433 and
    434 of the
Criminal Code
, R.S.C. 1985, c. C-46. The case against him
    was formidable, and included evidence of motive, planning, preparation, as well
    as forensic evidence suggesting that he was involved in setting the fire. The
    Crown also relied upon the testimony of a disreputable witness, who was
    probably an accomplice.

[2]

Mr. MacIsaac appeals his conviction, arguing that the trial judge made
    several errors in his Reasons for Judgment. For the following reasons, the
    appeal is dismissed.

B.

the facts

(1)

Overview

[3]

In the early morning hours of March 19, 2012, downtown Espanola was
    rocked by a number of explosions. The ensuing fire destroyed two buildings, one
    of which was owned by Mr. MacIsaac (the appellant).

[4]

It was the Crowns theory that the appellant, along with Craig Hunda
    (Hunda), conceived of a plan to burn down the appellants building. Late at
    night, the two men went to the appellants property at 128 Tudhope Street (the
    building), accompanied by the Crowns main witness, Jordan Leggat (Leggat),
    who was Hundas girlfriend. The appellant and Hunda doused toilet paper rolls
    with ignitable fluid and set the place on fire.

[5]

Shortly after the explosions, first responders arrived to find the
    appellant lying on the ground just outside of his building. Both of his legs
    and one of his arms were neatly bound by duct tape. The appellant had been
    beaten about the face and stabbed in the back. He told first responders that
    strangers attacked him and then set fire to his building. However, the evidence
    later showed that the appellant was complicit in burning down his own building
    and his story about being attacked was a ruse.

(2)

The Appellant and the Property

[6]

The appellant was a contractor. In March of 2011, he bought the building
    from a private mortgage lender, Jared Ethier (Ethier), with the intention of
    renovating it.

[7]

The appellant bought the building for $90,000. While Ethier registered
    a mortgage in that amount, he advanced $100,000 to the appellant. The
    additional $10,000 was a gift, intended to finance immediate work on the
    property. Ethier eventually advanced more funds and placed second and third
    mortgages on the property. In total, there was $165,000 in mortgages. The
    building was appraised at $300,000. It was insured for $500,000.

[8]

The appellant was able to make his mortgage payments and, at the time of
    the fire, the mortgages were in good standing. However, in the fall of 2011, as
    he continued to renovate, he offered to sign the building over to Ethier and
    walk away. Ethier encouraged the appellant to hang in and see it through so
    that he (the appellant) could make some money when the work was completed. The
    issue was not discussed further.

(3)

The Tenants

[9]

Part of the appellants work involved constructing two apartments in the
    building. By the time of the fire in March of 2012, tenants had been found for
    the apartments. It was the Crowns theory that, in the days leading up to the
    fire, the appellant checked to make sure that neither of them would be home at
    the time.

[10]

One tenant, Jocelynne Marinier (Marinier), spoke with the appellant a
    couple days before the fire. He asked her when she planned to move in. Marinier
    said she would move in when a fridge that was in the basement was moved into
    her apartment. The appellant told her he was waiting for someone to help him
    move it.

[11]

The other tenant, Heather Swinimer (Swinimer), had already moved into
    her apartment. She would advise him when she was absent as the appellant
    sometimes needed access to her unit for renovation purposes. When she spoke
    with the appellant on March 10, 2012, he asked if she was going away. She told
    him that she would be leaving that day, and returning a week from the following
    Monday.

[12]

At the time, Swinimer saw the appellant put his tool belt in his car.
    She noticed that it was also crammed with tools, clothing and various garbage
    bags. It was the Crowns theory that the appellant moved his personal items out
    of the building to prevent their destruction in the impending fire.

(4)

The Initial Investigation

[13]

Firefighters arrived at the scene at 1:03 a.m. on March 19, 2012. The
    building was ablaze. The appellant was lying about six to eight feet from the
    building. It did not appear that he was in immediate danger of being burned by
    the fire. His legs were duct taped, as was his left arm. There was no duct tape
    or gag around his mouth.

[14]

The appellant told the first-responders that he had been stabbed and
    assaulted outside, as he was entering the building. Further investigation led
    to the discovery of a knife, blood and duct tape in the hallway of the building.
    It was formally admitted at trial that the assault actually occurred inside.

[15]

A first responder found a suitcase and a leather computer bag outside
    the building, close to where the appellant was found. These bags contained
    personal items, including the appellants passport, SIN card and birth
    certificate.

[16]

A paramedic who treated the appellant thought his behaviour was strange because
    his answers were vague and, although he reported that he had just been
    attacked, the appellant was quiet rather than loud and emotional. The paramedic
    made observations of the duct tape. He described it as smoothly wrapped, with
    no wrinkles or pinching of the clothing. It was the Crowns theory that the
    duct tape was so neatly applied because the appellant consented to being duct taped
    as part of the ruse.

(5)

The Appellants Statements

[17]

The appellant gave a number of statements in the aftermath of the fire.
    When he made his first statement at the scene, the police thought that the
    appellant was a victim, not a suspect. The appellant told an officer that he
    lived in and owned the building. He said that he drove home that night in his 2008
    Pontiac Wave. As he entered the doorway, he was attacked from behind. One of
    his attackers called him an asshole. The appellant did not know who attacked
    him, or why. He also told the police that he did not think his tenants were home.
    The appellants car was not at the building at the time. He thought that it
    might have been stolen.

[18]

The appellant spoke to the police when he was at the hospital. One
    officer smelled kerosene coming from the appellants wet clothing. The
    appellant told the officer that he heard
two
voices calling him an
    asshole. He recalled black clothing, duct tape and punches. The appellant
    told the officer that he was hit  possibly with a bat  and pushed from behind.

[19]

Later that morning, the appellant gave another statement. This time, he went
    into great detail about his activities that day, leading up to the fire. The
    appellant told the officer that, when he arrived home and unlocked the door, he
    heard running and then people pushed him to the ground. He believed he was hit
    with a stick.

(6)

The Cause of the Fire

[20]

The fire was deliberately set. This was established through the evidence
    of a fire investigator with the Ontario Fire Marshalls Office, a private fire
    investigator/consultant and a scientist from the Centre of Forensic Sciences.

[21]

The explosion was described as a deflagration as opposed to a
    detonation, meaning that the sound caused by the explosion was more like a
    whoosh, rather than a bang. This distinction is important when considering
    the evidence of Leggat, discussed at para. 30 below.

[22]

The fire was started by volatile ignitable liquid distributed throughout
    the building. The fire was set on the rear staircase and then spread to the
    second floor. The first and second floors collapsed into the basement, which
    remained largely intact. In the basement, investigators discovered fuel cans
    and many toilet paper rolls, placed in various locations, including on and
    around the wood framing. A forensic chemist was able to match volatile
    ignitable liquid found on the appellants boots, jacket, socks, t-shirt,
    underwear and jeans with the same type of liquid found on carpeting from the
    building, and on the toilet paper rolls collected from the building.

(7)

The Accomplices

[23]

Three other people were involved, or potentially involved, in setting
    the fire  Hunda, Leggat and Jason Tessier (Tessier). It was admitted at
    trial that Hunda, a man with an extensive criminal record, actually set the
    fire. It was also admitted that Hunda assaulted the appellant.

[24]

In separate proceedings, Hunda was convicted of arson and of the
    aggravated assault of the appellant. Hunda did not testify at the appellants
    trial.

[25]

Leggat supplied a narrative that implicated the appellant as complicit
    in setting the fire. However, there were serious problems with her evidence.
    Her story was an evolving one.

[26]

Leggat initially told the police that she was not at the scene of the
    arson. She asked a friend to support her false alibi. Until the preliminary
    inquiry of Hunda, Leggat lied to the police about the footwear she wore that
    evening. She also failed to tell them that she hid Hundas clothing, wiped down
    the appellants car and hid the key to the car at her grandfathers home.

[27]

At the preliminary inquiry of Tessier, Leggat discarded her alibi and
    testified that she was at the building on the night of the arson, but never
    went inside. This version was developed after Leggat asked the police about the
    benefits of assisting them. Leggat was permitted to plead guilty to being an
    accessory after the fact to arson, after being charged with arson and attempted
    murder. She received a 20-month conditional sentence of imprisonment.

[28]

At trial, Leggat provided the following version of events. She
    acknowledged that, at the time of the arson, she was using cocaine and
    oxycodone on a daily basis. On the night of March 18, 2012, she was in Sudbury (where
    she lived). Hunda called and told her, I need you to come for a ride with me
    tonight. They met at a store and were driven to another location where they
    met up with the appellant. Leggat recognized the appellant from a poker game in
    Espanola one year earlier, when she was at the appellants building with Hunda.
    Hunda and the appellant talked to each other in a friendly manner. The three
    got into the appellants car and drove to Espanola. They stopped along the way
    on two occasions when Hunda and the appellant got out to speak to each other.

[29]

When they arrived at the building, the appellant got out of his car and
    went to the trunk, while Hunda looked for tape in the back seat. The two men
    went into the building. Leggat was told to wait in the car. She saw the
    appellant and Hunda walking around the building, including upstairs, where the
    two apartments were located. Contrary to her previous version of events, Leggat
    said that she got bored waiting in the car and went to the building and knocked
    on the door. She testified that she could not let herself in because the door
    had no handle. This was proven to be false. Leggat went inside and sat at the
    top of the staircase that led to the basement. The two men went into the
    basement carrying toilet paper. She said she could hear fluid splashing and
    dripping in the basement. Leggat heard the appellant say something like, [c]an
    you ask her to wait outside, well only be a couple more minutes. Leggat said
    that she went outside and waited by the car for about 45 minutes. Hunda came
    outside and told her to [g]et ready and to sit in the drivers seat of the
    appellants car because they would not be much longer.

[30]

Shortly afterwards, Leggat saw Hunda standing outside the building. The
    fire started in the building and made a loud whoosh sound. As noted above in
    para. 21, this was confirmed by the evidence of a fire investigator. Hunda was
    thrown to the ground and his clothes caught fire. Leggat and Hunda ran down an
    alleyway. Leggat instructed him to stop, drop and roll. Hunda was badly
    burned. Using the appellants car, Leggat drove Hunda to a hospital in Sudbury.
    She then got rid of his clothes, abandoned the car and returned to the
    hospital. The police located the car a short distance from the hospital.

[31]

Leggat was picked up from the hospital by Tessier, who drove her to her
    grandfathers house. It was here that she hid the keys to the appellants car.

[32]

Leggat testified that she did not see the appellant lying on the ground
    outside when the fire started even though, by her account, she was right there.
    After they left the scene, she asked Hunda, [w]here is that guy, referring to
    the appellant.

[33]

Before leaving Leggats testimony, I mention the evidence of Susan
    Brandow (Brandow), an employee at the Espanola post office, which was close
    to the appellants building. While she was taking a break at 12:45 a.m., she
    heard an explosion. She saw the silhouette of two figures running away from the
    building. She saw one of them, who she thought was a woman, put her hand up
    with a palm facing toward the second person. The two then ran back towards the scene.
    It was the Crowns theory that Brandow saw Leggat and Hunda as they ran from
    the building. Her observations were consistent with Leggat telling Hunda to
    stop, drop and roll.

C.

issues on appeal

[34]

The appellant raises four grounds of appeal. He argues that the trial
    judge erred by: (a) using neutral evidence as confirmatory of Leggats account;
    (b) improperly using the appellants exculpatory statements as evidence of
    guilt; (c) excluding relevant evidence by misapplying the collateral fact rule;
    and (d) engaging in speculation in a manner inconsistent with the burden of
    proof.

[35]

The respondent submits that the trial judge did not commit any of the
    alleged errors.

D.

Analysis

(1)      The
Vetrovec
Issue

[36]

The trial judge was fully aware that Leggat was a highly problematic
    witness. After noting that she had provided various versions of the events to
    the police and provided a great deal of false information to the police (at
    para. 31), the trial judge observed (at para. 32):

It is clear that Ms. Leggat hid and destroyed evidence and then
    lied to the police on many occasions over a long period of time. This conduct
    is consistent with the possibility that such conduct was an effort on her part to
    conceal her involvement as a party to the offence. If Ms. Leggat was not a
    party to the offence, her story also raises the question about why she was
    asked to attend the property and enter the building. It makes little sense to
    bring her to the scene of the crime if she was not to play an active role as
    she could do nothing but become a witness to the events.

[37]

The trial judge cited
R. v. Vetrovec
, [1982] 1 S.C.R. 811, and
    reminded himself that Leggats evidence must be approached with a great deal of
    caution (para. 35). He recognized that, in deciding whether to believe some,
    none or all of Leggats evidence, it was necessary to see if the balance of the
    evidence provided some independent confirmation (para. 49).

[38]

The trial judge was required to look for confirmation in evidence that
    was independent of Leggat: see
R. v. Khela
, 2009 SCC 4, [2009] 1
    S.C.R. 104, at para. 39 and
R. v. Roks
, 2011 ONCA 526, 274 C.C.C. (3d)
    1,

at paras. 63 and 64. The evidence did not need to directly implicate the
    appellant in the offences; it only needed to be capable of restoring the trial
    judges faith in the relevant aspects of Leggats account: see
R. v. Kehler
,
    2004 SCC 11, [2004] 1 S.C.R. 328, at paras. 15-16;
Khela
, at para. 40-41;
    and
Roks
, at para. 65. The trial judge could not rely upon evidence
    that was neutral, in the sense of being equally consistent with the truth or falsity
    of Leggats evidence: see
R. v. McFarlane
, 2012 ONCA 355, 102 W.C.B.
    (2d) 542, at para. 14. Neutral evidence neither confirms nor discredits.

[39]

When engaging in the analysis required by these authorities, trial
    judges are afforded considerable latitude. In
R. v. Kler
, 2017 ONCA 64,
    [2017] O.J. No. 375, Watt J.A. said (at para. 145):

The extent to which a trial judge illustrates
    potentially confirmatory evidence in connection with a
Vetrovec
witness is largely a matter of judicial discretion. Unlike
    potentially corroborative evidence under the former accomplice rule, references
    to potentially confirmatory evidence are illustrative, not exhaustive. And
    unlike under the former rule, confirmatory evidence need not implicate the
    accused in a material particular in the offence charged.

[40]

Overall, the trial judge properly analyzed this body of evidence and
    applied the principles in the authorities discussed above. In reaching this
    conclusion, it is important to appreciate the structure of his judgment. The
    trial judge commenced his analysis by considering Leggats circumstances at the
    time of the offence. She was a heavy drug user who committed crimes to support
    her habit. By the time of trial, she was on the road to recovery, albeit with
    bumps along the way. Moreover, at the time of the arson, she was in an abusive
    relationship with Hunda. Leggat testified that, out of fear in general, and
    fear of going to jail for the rest of her life, she had previously lied to
    protect herself.

[41]

The trial judge recognized that, even if he accepted Leggats explanations
    for her behaviour as genuine, independent confirmation was still required. The
    trial judge engaged in a thorough review of the balance of the evidence tendered
    at trial (at para. 49). He did not evaluate each item of evidence for its
    potential confirmatory value; instead, confirmatory evidence was identified in
    his review of the evidence as a whole: see
R. v. Gagnon
(2000), 147
    C.C.C. (3d) 193 (Ont. C.A.), at para. 17.

[42]

I accept that the trial judge relied on some items of evidence that, due
    to their susceptibility to competing interpretations, were neutral and did not
    provide confirmation of Leggats account. For example, the fact that Leggat and
    Hunda were not present when the first responders arrived (within two to three
    minutes of the explosions) did not confirm Leggats account that the appellant
    left his keys in the ignition and pointed this out to the others. The trial
    judge erred in finding that this evidence confirmed Leggats account.

[43]

However, the trial judge pointed to numerous pieces of evidence that did
    independently confirm Leggats account, including the following:

·

The
    discovery of the appellants car in Sudbury confirmed Leggats evidence that it
    was used as the getaway car;

·

Expert
    evidence supported Leggats account of how and where the fire was started;

·

Forensic
    evidence revealing ignitable liquid on the appellants clothing confirmed
    Leggats account that the appellant and Hunda were carrying toilet paper rolls
    into the basement and that she had heard splashing and dripping sounds; and

·

While
    not being a perfect fit, Brandows evidence was capable of confirming Leggats
    evidence that they immediately ran after the explosion and that she instructed
    Hunda to roll on the ground to extinguish his burning clothing.

[44]

As discussed in the authorities cited above, for evidence to be
    confirmatory in this context, it need not cut a direct path to guilt; it need
    only be capable of assuring the trier of fact that it is safe to rely upon the
    word of a disreputable witness. The trial judges reasons demonstrate that this
    is how he approached the evidence in determining whether the Crown had proven
    the appellant was involved in the arson. The potential complicity of Leggat,
    while a significant factor relating to her credibility, was immaterial to the
    appellants guilt. In concluding his analysis, the trial judge said (at para.
    104):

Some of this evidence is consistent with Ms. Leggat being a
    party to the offence. Some of the evidence provides independent confirmation of
    the evidence that she offered at this trial. After careful consideration of all
    of the evidence, I am satisfied that Ms. Leggat is a credible witness and, in
    most respects, also a reliable one. I accept her evidence. Having done so and
    considering all of the evidence apart from that offered by Ms. Leggat, I have
    no hesitation in reaching the conclusion that the Crown has proven each of the
    constituent elements of the two arson charges beyond a reasonable doubt.

[45]

This was the correct approach. I would not give effect to this ground of
    appeal.

(2)      The Appellants Statements

[46]

The appellant argues that the trial judge erred by rejecting the
    appellants exculpatory statements and then treating them as positive evidence
    of his guilt. The trial judge addressed the appellants statements towards the
    end of his reasons, when he said the following (at paras. 98, 100 to 102):

I have already recounted the statements and version of events
    provided by Mr. MacIsaac to the police. If they are true, he is an innocent
    victim. If they are false, such statements have been offered to provide a cover
    story for Mr. MacIsaacs involvement in the arson.

. . .

When all is said and done, the version of events given in Mr. MacIsaacs
    statements would amount to a random act of violence possibly resulting in
    murder unmotivated by money or other financial gain.

This stands in stark contrast to the other objective evidence
    that has been reviewed. Mr. MacIsaac was the owner of the building who stood to
    gain from a successful insurance claim. This is the more plausible explanation
    for the events that occurred that evening.

I am satisfied that Mr. MacIsaac was not telling the truth
    when he gave his statements to the police. I am further satisfied Mr. MacIsaac
    provided this misleading and untrue information in an effort to mask his
    involvement in the arson. Having made these findings, I draw an adverse
    inference against Mr. MacIsaac as a result of such post-offence conduct.
[emphasis added]

[47]

The trial judge erred in the manner in which he approached this evidence.
    It was open to the trial judge to disbelieve the appellants statements as implausible
    and incapable of raising a reasonable doubt. However, without evidence of fabrication,
    the trial judge could not infer guilt from mere disbelief: see
R. v.
    Blazeiko
(2000), 145 C.C.C. (3d) 557 (Ont. C.A.), at para. 7 and

R.
    v. Edwards
(2004), 187 C.C.C. (3d) 129 (Ont. C.A.), at para. 33. In
    this case, the trial judge did not point to any extrinsic evidence of
    fabrication. Moreover, while evidence that points to an accused persons guilt
    may lead a trier of fact to reject an accused persons statement as untrue, standing
    alone, direct evidence of guilt cannot be equated with fabrication: see
R.
    v. Coutts
(1998), 126 C.C.C. (3d) 545 (Ont. C.A.), at paras. 13-16.

[48]

There are some situations in which concoction or fabrication may be
    inferred from the content of a statement and/or the circumstances in which it
    was given. Such circumstances and features might include: (1) the timing of the
    statement (given when the police did not believe the accused was a suspect);
    (2) the scope of exculpation given in the statement; and (3) the degree of
    detail provided by the accused. See
R. v. OConnor
(2002), 62 O.R.
    (3d) 263 (C.A.), at para. 31 and
R. v. Bradey
, 2015 ONCA 738, 127 O.R.
    (3d) 721, at para. 173.

[49]

There are some parallels between this case and
OConnor
, in
    which it was held that a jury could use the circumstances surrounding the
    making of the accuseds statements, and nature of those statements, to conclude
    that they were fabricated to avoid suspicion. If this was the reason that the
    trial judge in this case treated the appellants statements as positive
    evidence of guilt, it was incumbent upon him to explain why the content of the
    statements, and/or the circumstances in which they were given, revealed
    fabrication. Without an explanation, I am unable to determine whether the trial
    judge: (1) considered this case to be analogous to
OConnor
; (2) wrongly
    equated mere disbelief with evidence of fabrication; or (3) erroneously
    inferred fabrication because the appellants statements stood in stark
    contrast to the other objective evidence that has been reviewed (at para. 101).
    The latter two reasons would be impermissible.

[50]

However, in all of the circumstances, this error was inconsequential.
    The trial judges reliance on the appellants statements as evidence of guilt was
    not integral to his ultimate conclusion. It is clear from the trial judges
    reasons that the appellants statements did not raise a reasonable doubt. The
    evidence as a whole, including the forensic and scientific evidence, pointed
    overwhelmingly to the appellants participation in setting the fire. I conclude
    that there was no substantial wrong or miscarriage of justice occasioned by the
    trial judges error and I would apply the proviso in s. 686(1)(b)(iii) of the
Criminal
    Code
.

(3)      The Collateral Fact Rule

[51]

The appellant argues that the trial judge erred by improperly curtailing
    the cross-examination of Leggat. This issue has its roots in the criminal proceedings
    against Leggat for her role in the arson. As discussed above (at para. 27),
    Leggat pled guilty to being an accessory after the fact to arson.

[52]

The record is not entirely clear on this point, but it would appear that
    a report prepared by a psychologist, Dr. Valiant, was introduced at Leggats
    sentencing hearing. During her testimony at the appellants trial, defence
    counsel (not Mr. Burgess) confronted her with this report. The following
    exchange took place:

Q.:
Okay. When you met with Dr. Valiant you reported
    that you have special mystical powers or a special mission in life that other
    people do not accept. Right?

A.
:      I said I had mystical powers?

Q.
:     Mn-hmm.

A.
:      No.

Q.
:     Would you like to  would it help

A.
:      Yeah, I do.

Q.
:     you refresh your memory to see

A.
:      Yeah.

Q.
:     the report?

A.
:      I never said I hadwhat are mystical powers? I
    dont even know what that word means.

[53]

The trial judge intervened to question the relevance of this evidence.
    Defence counsel advised that Leggat in fact said she had mystical powers, but
    quickly backtracked to suggest that Leggat had endorsed having these powers.
    Defence counsel argued that the line of questioning was relevant to Leggats
    credibility and reliability.

[54]

In response, the Crown at trial (not Mr. Harper) read an excerpt from
    the report that suggested that the psychologists conclusions were not based on
    Leggats self-reports, but on her responses to psychometric tests. The Crown
    quoted the following:

According to her responses contentshe feels quite lonely,
    misunderstood at times, she endorses a number of extremely bizarre thoughts,
    suggesting the presence of delusions or hallucination. She apparently believes
    that she has special mystical powers.

[55]

The trial judge curtailed this line of questioning, providing the
    following reasons:

Well, were not going down that road, thats a collateral fact
    and if were gonna start having evidence about when a person may or may not
    have told the truth Im afraid that the, Im afraid that the actors are gonna
    take over the circus, so that, thats not going to happen.

. . .

Were not, were not here to determine a host of those things,
    we are not here to determine first of all whether she said it, because shes
    giving [sic] you the answer and she said she never made the statement. And, and
    with the assistance of the information provided, even if I were inclined to go
    down that road, which Im not, the report on its face doesn't say that she made
    that statement.

So that's my ruling, Im not going to permit you, unless you
    can phrase some other questions you may wish to put to me now, Im not going to
    let you go down, go down that road. You asked the question, you got the answer,
    No, I never made the statement to him that I have mystical powers. So where,
    where do you wish to go from here?

[56]

Defence counsel did not pursue the matter further. Nor did he elect to
    call any evidence.

[57]

Addressing this ground of appeal is made more difficult because the
    psychological report in question was not filed as a lettered exhibit at trial.
    It should have been: see
1162740 Ontario Limited v. Pingue
, 2017 ONCA
    52, [2017] O.J. No. 331, at paras. 35-36.
[1]
Without reading the report, it is difficult to put the mystical powers comment
    in its proper context. Nevertheless, even on the limited record that is
    available, it is clear that defence counsels proposed line of questioning was
    not barred by the collateral fact rule. But as discussed below, the
    cross-examination was problematic in other ways.

[58]

The collateral fact rule does not curtail what is otherwise proper cross-examination
    of a witness; it potentially limits the manner in which answers given may be
    subsequently challenged by extrinsic evidence: see Sidney N. Lederman, Alan W.
    Bryant and Michelle K. Fuerst,
The Law of Evidence in Canada
, 4th ed.
    (Toronto: LexisNexis Canada Inc., 2014), at pp. 1195-1201. As is often said, if
    the questioner asks a question that bears on a collateral issue, he or she is stuck
    with the answer, in the sense of not being permitted to lead extrinsic evidence
    to contradict it. However, this does not prevent proper questions from being
    put in the first place: see
R. v. Krause
, [1986] 2 S.C.R. 466, at pp.
    474-475 and
R. v. Khanna
, 2016 ONCA 39, 127 W.C.B. (2d) 613, at para.
    9.

[59]

The collateral fact rule is most often engaged when a cross-examiner
    attempts to challenge the credibility of a witness. Generally speaking, credibility
    is considered to be collateral, thereby barring the questioner from adducing extrinsic
    evidence that bears solely on this issue. However, the rule has developed in a
    manner that admits of a number of exceptions: See Earl J. Levy,
Examination
    of Witnesses in Criminal Cases
, 7th ed. (Toronto: Thomson Reuters, 2016),
    at pp. 509-511. The exception that might have applied in this case is that
    medical evidence may be adduced to prove that, by virtue of a mental or
    physical condition, the witness is incapable of telling or is unlikely to tell
    the truth. In
Toohey v. Metropolitan Police Commissioner
,
[1965] A.C. 595 (H.L.), at p. 608, Lord Pearce held: it must be
    allowable to call medical evidence of mental illness which makes a witness
    incapable of giving reliable evidence, whether through the existence of
    delusions or otherwise. See also
R. v. Dietrich
, [1970] 3 O.R. 725 (C.A.), at pp. 742-744.

[60]

If Leggat suffered from delusions and/or experienced hallucinations, it
    may have affected her credibility and reliability as a witness. Defence counsel
    should have been permitted to explore this issue in cross-examination.
    Moreover, and although it was never expressed, if defence counsel was contemplating
    leading the type of evidence considered in
Toohey
, fairness
    to Leggat required that she be confronted with this suggestion during her
    testimony: see
Browne v. Dunn
(1893), 6 R. 67
    (H.L.) and
R. v. Lyttle
, 2004 SCC 5, [2004] 1 S.C.R. 193, at para. 65.

[61]

This legitimate line of inquiry was undermined by the
    manner in which counsel framed his questions. Given that the psychological
    report said that Leggat apparently believes she has special mystical powers,
    it was appropriate to ask her whether she told Dr. Valiant that she had
    mystical powers. Defence counsel asked the question and Leggat denied the
    suggestion. Moreover, there would have been nothing improper in asking Leggat
    whether she believed that she had mystical powers. It was not appropriate,
    however, to cross-examine Leggat on an assessment or diagnosis contained in the
    report. It would appear that this is where things were headed when the trial
    judge intervened. It may have been appropriate to attempt to refresh Leggats
    memory by reference to the report, assuming that a proper foundation for doing
    so could be laid:
R. v. Fliss
, 2002 SCC 16,
    [2002] 1 S.C.R. 535, para. 45. However, it is not clear from the portion of the
    transcript reproduced at para. 52 above whether Leggat actually looked at the
    report before saying, 
I never said I hadwhat are mystical powers? I
    dont even know what that word means.

[62]

Even though the trial judge improperly curtailed the
    cross-examination of Leggat, he offered defence counsel an opportunity to
    approach the issue in a different manner. Defence counsel did not accept the invitation,
    did not bring any authorities to the trial judges attention, nor did he
    attempt to adduce evidence of a mental disorder along the lines of
Toohey
.

[63]

Leggat was thoroughly cross-examined on all aspects of
    her previous statements, evidence, character and lifestyle. As discussed
    earlier in these reasons, she was exposed as a witness whose evidence required
    confirmation. I am not persuaded that the manner in which the trial judge dealt
    with this issue, while somewhat problematic, resulted in an unfair trial. I
    would not give effect to this ground of appeal.

(4)      Speculation and the Burden
    of Proof

[64]

The appellant points to a number of unrelated passages in the trial
    judges reasons and submits that he erred by engaging in speculative reasoning
    that sometimes reversed the burden of proof. I disagree.

[65]

The appellant submits that the trial judge erred in concluding that the
    appellant was not in a strong financial position at the time the fire was set.
    As the trial judge stated at para. 64 of his reasons:

the initial $10,000 gift from the mortgagee to consummate the
    closing and the requirement for second and third mortgages suggest that Mr.
    MacIsaac was not in a strong financial position during his period of ownership
    of the property.

[66]

The appellant submits that such speculation required him to adduce
    evidence that he was in a strong financial position  contrary to the burden of
    proof. The problem was compounded by the trial judges refusal to allow the
    appellants trial counsel to clarify with Ethier that the appellant was not
    under financial pressure.

[67]

This passage from the trial judges reasons must be viewed in a broader
    context. It formed a small portion of the trial judges analysis of the
    evidence of motive. The trial judge reviewed all of the evidence that suggested
    that only the appellant, and not Hunda, stood to gain financially from the
    destruction of the building. In analyzing the evidence in the manner that he
    did, the trial judge did not speculate nor did he cast the burden on the
    appellant to prove that he was in a strong financial position.

[68]

On the issue of the appellant being duct taped, the appellant complains
    about the following passage from the trial judges reasons and contends that it
    involves speculation (at para. 69):

There was nothing in the evidence to suggest that Mr. MacIsaac
    had duct tape applied to his mouth or was otherwise gagged. There was nothing
    to suggest that Mr. MacIsaacs right arm had been restrained at any point in
    time. The fact that no steps were taken to gag Mr. MacIsaac to prevent him from
    calling for help or to fully restrain him suggests that the application of the
    duct tape was part of the ruse that was designed to provide Mr. MacIsaac with a
    cover story and a means of escape. This also provides independent confirmation
    of the evidence offered by Ms. Leggat.

[69]

The appellant submits that the trial judges conclusion is
    irreconcilable with the extent of the appellants injuries. Further, he
    contends that there was no evidence of gagging (or the lack of gagging) and the
    trial judges reasons shifted the burden to the appellant to demonstrate that he
    was in fact gagged. Moreover, the appellant argues that the lack of gagging was
    not probative of his involvement in any plan. I disagree.

[70]

While this evidence might have been capable of different
    interpretations, there was nothing objectionable about the manner in which the
    trial judge dealt with it. It formed part of the trial judges analysis of the
    duct tape evidence as a whole. When the first responders arrived, none of them
    observed that the appellant was gagged. Moreover, in his various statements,
    the appellant did not assert that he was gagged. The evidence as a whole was
    capable of supporting the finding that the appellant was never gagged, which
    strengthened the conclusion that he was part of a ruse.

[71]

Lastly, the appellant points to the following passage, dealing with the
    appellants statements, as being objectionable for applying an incorrect
    standard of proof (at paras. 100 to 101):

When all is said and done, the version of events given in Mr.
    MacIsaacs statements would amount to a random act of violence possibly
    resulting in murder unmotivated by money or other financial gain.

This stands in stark contrast to the other objective evidence
    that has been reviewed. Mr. MacIsaac was the owner of the building who stood to
    gain from a successful insurance claim.
This is the more plausible
    explanation for the events that occurred that evening
. [emphasis added]

[72]

Because these comments apply to individual (and related) items of evidence,
    and not to the ultimate question of whether guilt was proved, the reasonable
    doubt standard is inapplicable: see
R. v. Morin
, [1988] 2 S.C.R. 345,
    at pp. 354, 359-361. More generally, in expressing his ultimate conclusion on
    all of the evidence (para. 104), the trial judge correctly stated the standard
    of proof. His reasons as a whole demonstrate that he applied the proper
    standard in finding the appellant guilty of arson.

[73]

I would reject this ground of appeal.

E.

conclusion

[74]

The appeal from conviction is dismissed.

Released:

MAR -1 2017                                              G.T.Trotter
    J.A.

GTT                                                             I
    agree K.M. Weiler J.A.

I
    agree S.E. Pepall J.A.





[1]

I accept that, given the nature of the report, introducing the
    report into the proceedings may have affected Leggats privacy interests.
    However, the trial judge had tools at his disposal (such as ordering the report
    sealed) to address this concern. Moreover, the report had already been made an
    exhibit in the proceedings against Leggat.


