Nova Scotia Court of Appeal
Citation: R. v. Bou-Daher, 2015 NSCA 97
Date: 20151027
Docket: CAC 422634
Registry: Halifax
Between:
Jean (John) Joseph Bou-Daher
Appellant
v.
Her Majesty The Queen
Respondent
|
Judges: |
MacDonald, C.J.N.S., Saunders and Fichaud, JJ.A. |
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Appeal Heard: |
October 9, 2015, in Halifax, Nova Scotia |
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Held: |
Appeal dismissed, per reasons for judgment of Fichaud, J.A.; MacDonald, C.J.N.S. and Saunders, J.A. concurring |
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Counsel: |
David Dalrymple for the Appellant Timothy O’Leary for the Respondent |
Reasons for judgment:
[1] Between 1:00 and 1:15 a.m. on Monday, July 7, 2008, someone deliberately set two fires on the upstairs level of Key Largos, a bar in Lower Sackville. Key Largos was managed by Mr. John Bou-Daher and co-owned by his son and nephew through a numbered company. Mr. Bou-Daher was on the upstairs level well before 1:00 a.m. until about 1:10 a.m. At 1:10 a.m. Mr. Bou-Daher went downstairs, armed the building’s security system and immediately left the building. Only two other identified persons had been in the building after the bar closed earlier that evening. Neither was upstairs when the fires were set.
[2] The trial judge made the key finding, inferred from circumstantial evidence, that no unidentified person could have accessed the upstairs level at the time the fires were set. Given that Mr. Bou-Daher had the exclusive opportunity to set the fires, the judge convicted Mr. Bou-Daher of arson contrary to s. 434 of the Criminal Code.
[3] Mr. Bou-Daher appeals his conviction to the Court of Appeal. He says the judge unreasonably concluded that Mr. Bou-Daher’s guilt was the only rational inference from the wholly circumstantial evidence.
Background
[4] Judge Anne Derrick of the Provincial Court heard the trial. The issue is whether her verdict is unreasonable or unsupported by evidence. It is helpful to track the judge’s reasoning in her decision under appeal (2013 NSPC 114).
[5] The judge framed the issue:
[3] Mr. Bou-Daher remains charged that
…on or about July 7, 2008, with intent to defraud Canadian World Wide Underwriting Agencies Ltd., c/o Maxwell Claims Services, Lloyds of London and Temple Insurance Company, [he] caused damage by fire to Key Largos, property of Starfish Properties, situate at 70 First Lake Drive, Lower Sackville, Nova Scotia, contrary to section 435(1) of the Criminal Code of Canada.
…
[7] What I must therefore examine is whether the Crown has proven beyond a reasonable doubt that Mr. Bou-Daher had exclusive opportunity to set the fires that damaged Key Largos, which would constitute the included offence of arson, and whether he did so with the intention of defrauding the insurance company, which would constitute the offence charged, arson for a fraudulent purpose.
[6] The judge found that someone had deliberately set two fires on the upstairs level of Key Largos, one in the office and the other in the hallway:
[11] A significant amount of the evidence is not in dispute. …
[12] The fires on the second level of Key Largos were each deliberately set and were not connected to each other, that is to say, one fire did not spawn the other. One fire was started in the office on the second floor and the other fire was set in a nearby carpeted hallway off which there were two washrooms.
[13] A liquid accelerant was used to ignite the fires. … Forensic testing indicated gasoline and a light petroleum distillate in the charred carpet sample from the office. Gasoline was detected in the other three samples, which included two unburned carpet samples taken from near the upstairs bar and near the desk in the office. …
[14] Scott Wheeler was qualified without objection by Defence as an expert in the field of fire cause determination with expertise in the areas of identification and examination of fire burn patterns, the cause and origin of fire, and fire travel. According to him, the pattern on the carpet in the burned areas indicated that something had been poured there. It was his opinion that the point of origin of the fire in the office was just past the doorway on the carpet up against the wall. …
[16] The report of Philip Juby, a “fire cause determination and travel” expert was admitted by consent and included the following opinions:
• There were two distinct areas of deliberately set fires;
• A liquid accelerant was used;
• Liquid accelerants are commonly ignited by the use of a match or lighter;
• The fires could not have occurred without human action;
• The fires were set intentionally to cause damage to the contents and structure of the business;
• The amount of “Burn Time” or time of open flame in this fire scene was more than 3 minutes and less than 5 minutes.
• The sprinkler system minimized the damage which was limited to flooring, moulding, and light soot throughout. The fire was also minimized by the absence of a considerable volume of flammable material immediately at the flame source.
[7] The judge found that the sprinkler system activated the fire alarm. Mr. Juby, qualified as an expert in fire cause determination, said that the burn time was between three to five minutes before the sprinklers extinguished the flames. When the sprinklers came on, Key Largos’ security company got notice, and, at 1:15 a.m. the HRM Fire Service was notified. This meant the fires had been set between 1:00 and 1:15 a.m. The judge said:
[18] The fires were extinguished by the sprinkler system. Both fires were set in proximity to sprinkler heads which were triggered by the heat of the flames. …
[21] The fire alarm at Key Largos was triggered by the sprinkler system. The Agreed Statement of Facts states that Terry Muise, monitor of the alarm for Key Largos and other properties, received the alarm at 1:09 a.m. “as reflected by the alarm log prepared by Mr. Muise.” …
[22] Exhibit 22, the HRM Fire and Emergency Dispatch Log, appears to be computer generated. … There is a six minute delay between when Mr. Muise recorded receiving the fire alarm at 1:09 and when HRM Fire Services were notified at 1:15 a.m. …
…
[33] The computer generated monitoring report for the Key Largos’ alarm system (Exhibit 11, Alarm Systems Log) shows that the Key Largos’ alarm system was armed at 1:10:44 a.m. on July 7, 2008. …
[34] The 1:10 a.m. arming of the Key Largos alarm system was done by John Bou-Daher. In a statement to police on July 8, 2008, Mr. Bou-Daher indicated he had armed the system using his code when he left Key Largos.
…
[48] If the time recorded by Terry Muise, the fire alarm monitor, in his log is accurate, when Mr. Bou-Daher armed the Key Largos’ security system the fires on the second level would already have been burning for several minutes. …
[50] If the fires started around 1:04 a.m. – 1:06 a.m. then they would have been blazing while Mr. Bou-Daher and Mr. Badour were still on the premises. It is not reasonable to think the men would have remained inside while the fires burned. Mr. Badour testified he noticed nothing out of the ordinary before he left Key Largos with Mr. Bou-Daher. It is possible that is not true but even then it makes no sense that he and Mr. Bou-Daher would have lingered inside with the fires burning.
[51] I do not see how the 1:09 a.m. time of the fire alarm can be accurate. I find that the sprinkler system activated the fire alarm closer to 1:15 a.m. which is the time when HRM Fire Service received notification of the fire.
[8] Mr. Bou-Daher left Key Largos around 1:10 a.m., if we use the timing of Key Largos’ alarm systems log. Before that, he had access to the upstairs level. In these respects, the judge said:
[47] As I have mentioned already, on July 7 at 1:10:44 a.m., John Bou-Daher armed the Key Largos security system. Taleb Badour was waiting for him to close the bar and they left immediately. …
[62] Taleb Badour was called as a Defence witness. …
…
[64] Key Largos was a stop for Mr. Badour on his way home on Sunday night, July 6. … Mr. Badour decided to swing by Key Largos to collect the money he was owed for the work he had done on the sink. ...
[65] The front door to the bar was locked when Mr. Badour tried it. As Ms. Vakili testified, Mr. Badour went in as she left. The bar was in darkness. Mr. Badour went up to the office on the second level where he found Mr. Bou-Daher sitting at the desk counting money. It was Mr. Badour’s recollection at trial that Mr. Bou-Daher asked him how much he was owed and passed him the $80 at this point. Mr. Badour testified that he then went to leave but Mr. Bou-Daher said he was finished and they should leave together.
[66] According to Mr. Badour, their shared Arabic culture meant that it would have been disrespectful for him to have ignored Mr. Bou-Daher’s suggestion and just left. He went downstairs to the main floor of the bar. Mr. Bou-Daher was counting money and Mr. Badour did not want to watch him while he did that. …
[69] … I find Mr. Badour was at Key Largos as long as half an hour waiting for Mr. Bou-Daher. In Mr. Badour’s July 8 statement to police he said that it was when he and Mr. Bou-Daher left Key Largos that Mr. Bou-Daher handed him the money he was owed, $80 for the sink job. (Exhibit 6, page 3) It is reasonable to infer that Mr. Badour waited for Mr. Bou-Daher so he could get paid.
[70] Mr. Badour has testified that some of that time Mr. Bou-Daher was not visible to him. Mr. Badour could not see upstairs from where he was standing by the doors. He testified he was able to see Mr. Bou-Daher come down the main staircase and go in the direction of the alarm panel which was on the first floor beside the walk-in coolers near the kitchen area. Mr. Bou-Daher then walked to the front doors and he and Mr. Badour left right away. …
[9] The judge found that Mr. Bou-Daher had the opportunity to set the fires:
[75] Mr. Bou-Daher’s statement of July 8 indicates that Mr. Badour arrived around 12:20 or 12:30 a.m. on July 7, just after Ms. Vakili had left.
[76] Mr. Bou-Daher describes being in the office counting the money. He paid Mr. Badour and they left Key Largos together. …
[81] It is not denied that John Bou-Daher had the opportunity to set the Key Largos’ fires. He was seen in the area where the fires occurred, using the office where one of the fires was started. As I noted at the start of these reasons, proof beyond a reasonable doubt of exclusive opportunity is required in this case for a conviction.
[10] Judge Derrick then considered whether that opportunity was exclusive.
[11] Three identified persons were in the building after the bar closed earlier that evening – Ms. Asal Vakili, Mr. Badour and Mr. Bou-Daher.
[12] Ms. Vakili, who worked there as a waitress, left around 12:20 to 12:30 a.m. (Trial Decision, paras. 65 and 75, quoted above). At that time the doors were locked to outside entry. The judge added:
[59] Asal Vakili, who had waitressed at Key Largos on Sunday, July 6, noticed nothing out of the ordinary with Mr. Bou-Daher at the end of her shift. The bar’s customers were all gone by around midnight so she ended up leaving early. She closed out her shift, handing in her money and receipts to Mr. Bou-Daher who was in the upstairs office. There was no one else in the office. There were no smells in the office when she was there.
[60] I find that when Ms. Vakili left everything was, as she testified, “fine, normal”. There was no smoke, no fire, no alarms going off.
[61] Ms. Vakili left Key Largos through the doors leading from the VLT lounge on the main floor. Taleb Badour was waiting there to get in. He wanted to see Mr. Bou-Daher. He took the opportunity of Ms. Vakili leaving the bar to go inside.
[13] Mr. Badour arrived around 12:20 to 12:30 a.m., when Ms. Vakili left. He went upstairs to speak with Mr. Bou-Daher, who was in the office counting the day’s revenue. Mr. Badour then returned downstairs for about a half-hour to await Mr. Bou-Daher. The judge found that he left with Mr. Bou-Daher around 1:10 a.m., according to the timing of Key Largos’ alarm log. (Trial Decision, paras. 33-34, 47, 61, 65-66, 69-70, 75-76, quoted above).
[14] These findings meant neither Ms. Vakili nor Mr. Badour were upstairs when the fires were set on that level.
[15] That left Mr. Bou-Daher or an unidentified intruder.
[16] Judge Derrick made the pivotal finding that no unidentified intruder could have accessed the upstairs level at the critical time. It is this finding that Mr. Bou-Daher challenges on the appeal. The judge inferred the fact from circumstantial evidence:
[23] There were three entrances to Key Largos, all doors along the front of the building facing the parking lot. …
[24] There was also a single door that led from the outside into the coat check area. …
[25] A fourth door, on the side of the building, which I will call Door #4 … could not be opened from the outside. It was an emergency exit door only, with a panic bar on the inside. It was this door that firefighters pried open to gain access to the building.
…
[27] Key Largos rented its space at 70 First Lake Drive from Starfish Properties. Starfish Properties had an alarm system on four exterior doors, three in the back of the building and the emergency exit door, Door #4. The only evidence about the Starfish Properties’ external door alarm system was given by Gary Wambolt who did maintenance work for Starfish Properties. The system was triggered by opening any of the four outside doors. …
[29] The Key Largos’ security system had originally been installed in 2000. The system included a central panel with two key pads, three motion detectors, five door contacts and a 15 watt interior siren that would sound when the alarm was tripped. The motion detectors would pick up motion in an area of approximately 800 square feet. There is no evidence about where any of the motion detectors were located. The door contacts would trigger the system if the contact was broken while the alarm was armed.
…
[31] The evidence established that on July 7, 2008, there were no problems with the Key Largos’ system. It was in good working order. There had been no calls for service. There were no calls for service after July 7, 2008 either.
[32] When firefighters entered through Door #4 they went along the hallway and up the stairs to the second level of Key Largos. Water was coming down the stairs and flowing out under Door #4. At the top of the stairs the firefighters encountered a locked door. This door also had to be forced which set off an intrusion alarm associated with Key Largos’ security system.
The Arming of the Key Largos Alarm System on July 7, 2008
[33] The computer generated monitoring report for the Key Largos’ alarm system (Exhibit 11, Alarm Systems Log) shows that the Key Largos’ alarm system was armed at 1:10:44 a.m. on July 7, 2008. User #40 armed the system. User #40 was the master code for the system.
[34] The 1:10 a.m. arming of the Key Largos alarm system was done by John Bou-Daher. In a statement to police on July 8, 2008, Mr. Bou-Daher indicated he had armed the system using his code when he left Key Largos.
Searching Key Largos on July 7 after the Fires
[35] According to the Alarm Systems Log for Key Largos’ security system (Exhibit 11), the forced entry by firefighters through the upper rear door at the top of the stairs was at 1:41:50 a.m. This was 31 minutes after the system had been armed by John Bou-Daher.
[36] Captain Grimes of the Halifax Regional Fire Service and some firefighters did a primary search of Key Largos to make sure there was no one inside. This involved searching every part of the premises. They found no one.
…
How Secure was Key Largos?
[38] I find there is no rational basis for inferring that someone may have been able to get into Key Largos once Mr. Bou-Daher set the alarm. There is no evidence that entry could have been gained through a window. An examination of Exhibit 1, the booklet of IDENT photographs, does not reveal any windows that could have been a point of entry from the outside.
[39] I also find that none of the exterior doors that could permit access into Key Largos were found to be in a damaged condition. Police IDENT photographs from July 8, 2008 (Exhibit 1) include close-ups of the locking mechanisms for the three entrances into Key Largos. None of these locking mechanisms show any signs of damage or forced entry. These three entrances were on the Key Largos’ security system.
[40] The security system at Key Largos was working on July 7. It was a monitored system and the monitoring report shows that it was armed and later breached, the intrusion being by the firefighters breaking through the upper rear door. No earlier dis-arming of the system or intrusion was recorded by the monitoring entity. The only rational inference to be drawn from the evidence is that whoever set the fires on the upper level of the bar had to have already been inside before Mr. Bou-Daher armed the system. And whoever set the fires had to have left the premises before the firefighters arrived as they conducted a thorough search and found no one. The only door that someone could exit from without triggering the Key Largos’ security system was Door #4. …
Did John Bou-Daher have Exclusive Opportunity to Set the Fires?
…
[82] If someone else other than John Bou-Daher set the fires, they would have had to do so before he set the alarm because it would have been necessary for them to get out through the rear upstairs door before the intrusion alarm on this door became active.
[83] There is no evidence that the upper rear door triggered an alarm before the arrival of the fire fighters. The evidence satisfies me that the Key Largos security system was working: the arming of it at 1:10:44 a.m. was logged and the intrusion through the upper rear door was logged as well, at 1:41:50 a.m. I find that no one could have left through the upper rear door after the system was armed by Mr. Bou-Daher at 1:10:44 a.m. without tripping the alarm.
…
[91] Even assuming that an arsonist could have slipped out through Door #4 without Ms. Newman-Simoneau noticing this when she was watching the video footage, I find it is wholly unreasonable to infer that another person could have evaded Mr. Bou-Daher, splashed the accelerant around in two separate places, lit the fires, and taken off through the upstairs rear door all in the time between when Mr. Bou-Daher went downstairs and when he alarmed the security system.
[92] There is no evidence that while Mr. Badour waited downstairs anyone was upstairs at Key Largos other than Mr. Bou-Daher. …
[17] Accordingly, the judge found that Mr. Bou-Daher had the exclusive opportunity to set the fires:
[92] … There was a period of time while Mr. Bou-Daher was still upstairs during which Mr. Badour could not see him. During this time Mr. Bou-Daher had exclusive opportunity to set the fires. The only one rational inference to be drawn from the evidence is that he used the opportunity just before going down to set the alarm to do so. He then left promptly with Mr. Badour, did not linger in the area, and was gone by the time the sprinkler system had triggered the fire alarm.
[18] The judge also found that, in the afternoon of July 6, at 3:19 p.m., someone had disabled Key Largos’ video surveillance in order to ensure that the planned arson would not be recorded:
[41] The video surveillance DVR from Key Largos was examined as part of the police investigation after the fires. The DVR was located in the office where one of the fires was set. There is evidence that it got wet when the sprinkler came on. However this caused it no damage according to Daryl Strickland, a software engineer who received the DVR from the police. Mr. Strickland testified he found the DVR to be in good working order.
[42] The Crown led evidence establishing that the DVR had failed to record any video from inside Key Largos during the time of the fires. …
[43] I am satisfied that the evidence indicates someone deliberately disrupted the DVR’s power source. Brian Hooper was qualified without Defence objection as an expert in computing systems and information technology. …
[44] Mr. Hooper went over the Microsoft Windows Event Log for the DVR. (Exhibit 17) He noted that the system is “constantly writing to the log.” His examination of the log led him to conclude that sometime in the period of July 6 to 9, 2008 there was “an unclean shut-down” of the video surveillance system. This indicates that “power was removed from the unit.” According to Mr. Hooper this could mean a power outage, a plug pulled from the unit or the wall, or the back power switch was turned off. As the DVR was fully functioning, there were no other explanations for the system being down.
[45] The time of the “unclean” DVR shut down can be narrowed down. The system was programmed to search for confirmation of the time but as the DVR was not connected to the internet this was futile. The DVR would cycle through this futile process every 24 hours. On July 6 at 12:43 p.m. it started its process of looking for the time. It stopped functioning at 3:19 p.m. (Exhibit 17) Had there been a simple power interruption caused by a circuit breaker for example, then it would have recorded its failure to find the time as soon as the power was restored. There was power at Key Largos when Mr. Bou-Daher and Mr. Badour left on July 7 around 1:10 a.m. and, as the Crown has pointed out, the IDENT photographs show lights on inside Key Largos when the photographs were taken sometime during the day of July 7. The DVR log did not record any activity on July 7. The unit remained down until July 9 when it started writing to the log again. (Exhibit 17)
[46] There is only one reasonable inference to be drawn from the evidence about the DVR: someone deliberately shut down the Key Largos’ video surveillance system on the afternoon of July 6. The only reason to have done so was to ensure the video surveillance cameras could not record the planned arson.
[19] It follows that the culprit or an accomplice had to be in the private office on Key Largos’ upstairs level in the mid-afternoon of July 6, as well as between 1:00 and 1:15 a.m. on July 7.
[20] There was evidence that contradicted the Defence’s hypothesis that, around 1:10 a.m. on July 7, an unidentified intruder exited the rear emergency door (“Door # 4” in the judge’s reasons). Judge Derrick’s decision says:
[85] I heard evidence about two stationary cameras that overlooked Door #4 and were maintained by the next-door Armed Forces military police depot. …
[86] The camera footage was erased and reused before police could seize it. However prior to this happening, an Armed Forces administrative employee, Helen Newman-Simoneau viewed it as a result of a request passed from Halifax Regional police investigators to her through a colleague. I am satisfied from her testimony that Ms. Newman-Simoneau conducted a singular, dedicated viewing of the video footage.
[87] It is most likely that the time period for Ms. Newman-Simoneau’s viewing was from 11 a.m. on Sunday July 6 to 4 a.m. on Monday July 7, which is what she reported in the statement she gave to police on November 21, 2008. …
Ms. Newman-Simoneau testified that she did not notice Mr. Bou-Daher’s truck departing after he left Key Largos. Yet the truck can be seen from the footage of an outdoor camera mounted on the Staples call centre nearby. From this omission, Judge Derrick said:
[89] I find it is possible that Ms. Newman-Simoneau’s careful scrutiny of the footage from the two cameras may not have been infallible. …
Fallible or not, Ms. Newman-Simoneau said she did not see anyone exiting from Key Largos’ Door #4 at the critical time after 1:00 a.m. She testified:
Q. Okay. During the course of your review of that footage, did you observe anything unusual?
A. The only item that appeared in that video footage was a small white car had come into the parking lot on that right side of the building. It was right around 8:30 in the evening. There was one gentleman in the car. He was there only a mere minute. An individual exited from the Key Largos door. It was a younger man. He was dressed completely in white, white shirt, white pants. So I deduced that he was kitchen staff, having access to that door and dressed like that. They conversed a few minutes. The gentleman in the white car, he departed. The other man, he walked back into the building. There was no other activity on that video.
…
Q. All right. Did you see any fire or police arrive during your review of that footage?
A. I think … around 1:15 in the morning is when I could see the firefighters exiting and basically doing perimeter checks during what appeared to be a fire.
[21] Judge Derrick concluded:
[98] Finally, I do not believe Mr. Bou-Daher’s denials. The evidence, particularly in relation to the time frame and circumstances just before Mr. Bou-Daher set the alarm, supports only one rational inference, that of Mr. Bou-Daher having exclusive opportunity to be the arsonist. This conclusion supports a conviction against Mr. Bou-Daher for arson as I am satisfied the Crown has proven beyond a reasonable doubt that there is no other rational inference to be drawn from the evidence.
[22] Judge Derrick heard the trial on November 12-19, 2013, and issued her decision on November 21, 2013. She found that the Crown had not proven beyond a reasonable doubt that Mr. Bou-Daher’s motive was to obtain insurance proceeds. Accordingly, she acquitted Mr. Bou-Daher of arson for a fraudulent purpose under s. 435(1) of the Code. But she convicted him of arson under s. 434, an included offence.
[23] On December 13, 2013, Mr. Bou-Daher appealed his conviction to the Court of Appeal under s. 675(1) of the Criminal Code.
Issue
[24] Mr. Bou-Daher’s Notice of Appeal, drafted without counsel, says “the judge made the wrong decision in finding me guilty” and “Not enough evidence to find me guilty”. His factum, written by counsel, restates the issue:
[6] The Appellant respectfully submits that the learned trial judge erred in law in finding that the evidence was sufficient to find the Appellant guilty beyond a reasonable doubt of the crime of arson under s. 434 of the Criminal Code. In particular, the Appellant respectfully submits that the learned trial judge erred in law in finding that the Appellant’s guilt is the only rational inference that can be drawn in this case.
[25] The Crown’s factum characterizes this issue as:
• Is the verdict unreasonable or not supported by the evidence?
[26] Under either formulation, the issue invokes s. 686(1)(a)(i) of the Code, which permits the court of appeal to overturn a guilty verdict that “is unreasonable or cannot be supported by the evidence”.
Standard of Review
[27] Section 675(1)(a)(i) permits an appeal based on an issue of law. The only issue mentioned in Mr. Bou-Daher’s factum cites an error of law. The appeal court’s consideration of the verdict’s reasonableness under s. 686(1)(a)(i) involves a review of the facts. In R. v. Yebes, [1987] 2 S.C.R. 168, Justice McIntyre for the Court explained how the appellate analysis under then s. 613(1)(a)(i) - currently s. 686(1)(a)(i) - involves an issue of law:
… A court of appeal may allow an appeal against a conviction where it is of the opinion that the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence. It may be thought that this subsection does not in a strict sense raise a question of law which would give a right to appeal to this Court under s. 618(1)(a) of the Code. Indeed, the respondent Crown asserted in its factum that there was no point of law dividing the minority and the majority of the Court of Appeal in this case. This argument was not, however, strongly pressed on the hearing of the appeal and, in my view, cannot be sustained. It is frequently difficult to draw a clear line between a question of law and a question of fact. While the law can be stated in isolation from the facts, abstract statements of law unconnected to facts are vague and elusive. Even when two judges state the law in precisely the same terms each may actually differ in his understanding of the law and the requirements for its application. Therefore, whether or not an appeal raises a question of law can only be determined after an examination of both the statements of law and the application of the law to the facts in the courts below. Under s. 613(1)(a)(i) of the Code, a court of appeal is required to decide whether the verdict of the jury was unreasonable. While this involves a reconsideration of the facts, it also requires the court to resolve a question of law by giving legal content to the concept of “unreasonable”. …
[p. 180]
[28] Justice McIntyre then stated the test under the current 686(1)(a)(i):
… The function of the Court of Appeal, under s. 613(1)(a)(i) of the Criminal Code, goes beyond merely finding that there is evidence to support a conviction. The Court must determine on the whole of the evidence whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. While the Court of Appeal must not merely substitute its view for that of the jury, in order to apply the test the Court must re-examine and to some extent reweigh and consider the effect of the evidence. This process will be the same whether the case is based on circumstantial or direct evidence. …
[p. 186]
[29] In R. v. Biniaris, [2000] 1 S.C.R. 381, Justice Arbour for the Court expanded on the Yebes test:
36 … That formulation of the test imports both an objective assessment and, to some extent, a subjective one. It requires the appeal court to determine what verdict a reasonable jury, properly instructed, could judicially have arrived at, and, in doing so, to review, analyse and, within the limits of appellate disadvantage, weigh the evidence. This latter approach is usually understood as referring to a subjective exercise, requiring the appeal court to examine the weight of the evidence, rather than its bare sufficiency. The test is therefore mixed, and it is more helpful to articulate what the application of that test entails, than to characterize it as either an objective or a subjective test.
37 The Yebes test is expressed in terms of a verdict reached by a jury. It is, however, equally applicable to the judgment of a judge sitting at trial without a jury. The review for unreasonableness on appeal is different, however, and somewhat easier when the judgment under attack is that of a single judge, at least when reasons for judgment of some substance are provided. In those cases, the reviewing appellate court may be able to identify a flaw in the evaluation of the evidence, or in the analysis, that will serve to explain the unreasonable conclusion reached, and justify the reversal. … The court of appeal will therefore be justified to intervene and set aside a verdict as unreasonable when the reasons of the trial judge reveal that he or she was not alive to an applicable legal principle, or entered a verdict inconsistent with the factual conclusions reached. These discernable defects are themselves sometimes akin to a separate error of law, and therefore easily sustain the conclusion that the unreasonable verdict which rests upon them also raises a question of law.
[30] In R. v. R.P., [2012] 1 S.C.R. 746, Justice Deschamps for the majority discussed unreasonableness and the appeal court’s review of the evidence:
[9] To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v. Yebes, [1987] 2 S.C.R. 168, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, determine whether the verdict is one that a properly instructed jury or a judge could reasonably have rendered. The appellate court may also find a verdict unreasonable if the trial judge has drawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge (R. v. Sinclair, 2011 SCC 40, [2011] 2 S.C.R. 3, at paras. 4, 16 and 19-21; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190).
[10] Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact. A court of appeal that reviews a trial court’s assessments of credibility in order to determine, for example, whether the verdict is reasonable cannot interfere with those assessments unless it is established that they “cannot be supported on any reasonable view of the evidence” (R. v. Burke, [1996] 1 S.C.R. 474, at para. 7).
[31] Judge Derrick drew the critical inference from circumstantial evidence. In R. v. Henderson, 2012 NSCA 53, Justice Saunders explained the appeal court’s treatment of such a verdict:
[18] The standard of review of verdicts based on circumstantial evidence is whether a properly instructed jury, acting judicially, could have reasonably concluded that the guilt of the accused is the only rational conclusion to be reached from the whole of the evidence. Within such an inquiry, the standard of review for error is correctness. The standard of review of possible inferences that may be drawn from the evidence is palpable and overriding error. See, for example, R. v. Shea, 2011 NSCA 107.
To the same effect: R. v. Muise, 2013 NSCA 81, para. 6.
[32] In support of his submission that the verdict is unreasonable, Mr. Bou-Daher submits that the judge made a palpable and overriding error of fact (below, para. 34). In R. v. Clark, [2005] 1 S.C.R. 6, Justice Fish for the Court discussed what is palpable and overriding:
9 … Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. “Palpable and overriding error” is a resonant and compendious expression of this well-established norm: …
Is the Verdict Unreasonable or Unsupported?
[33] Mr. Bou-Daher’s conviction hinged on Judge Derrick’s inference from circumstantial evidence, that nobody else had the opportunity to set the fires. Was this the only rational conclusion that a properly instructed trier of fact, acting judicially, could reasonably infer from the whole of the evidence?
[34] Mr. Bou-Daher submits that an unidentified intruder had the opportunity. His factum posits this scenario:
[34] Based on the foregoing facts, it is submitted that the trial judge made a palpable and overriding error in concluding that there was no reasonable doubt that John Bou-Daher had exclusive opportunity to set the fires that damaged Key Largos’ on July 7, 2008. The missing gasoline container suggests that someone other than John Bou-Daher and Taleb Badour was inside Key Largos’ when the fire started. That person could have gained entry to Key Largos’ during business hours, and remained hidden until after it had closed. That person could have quickly poured and ignited the gasoline. That person could have left through the emergency exit. There is evidence that there was another person in the parking lot of 70 First Lake Drive when the fire started.
[35] For Mr. Bou-Daher’s suggested scenario to have occurred, the following would have been necessary:
1. In mid-afternoon on July 6, the culprit or an accomplice, undetected by Key Largos’ staff, would have had to go upstairs to the private Key Largos office, locate the video recording device, and shut it down at 3:19 p.m.
2. He would have to hide upstairs until he set the fires about ten hours later, or exit in the afternoon and then he or the accomplice would have to return upstairs again before he set the fires. In either case the intruder would have to bring his accelerant. His activity would have to be undetected by Key Largos’ staff.
3. Mr. Badour found the outside doors locked at 12:20 to 12:30 a.m., and gained entry only when Ms. Vakili opened the door to leave. The judge found no evidence of forced entry, except for the damage done by firefighters after the fire had started. So an intruder’s entry to the building would have to be before the doors were locked, i.e. earlier than 12:20 to 12:30 a.m.
4. Mr. Bou-Daher was upstairs in the office counting the day’s take at 12:20 to 12:30 a.m., when Mr. Badour went upstairs. Anyone going upstairs after that would be noticed by Messrs. Badour or Bou-Daher. So an intruder would have to be cached upstairs, with the accelerant, before Mr. Bou-Daher had entered his upstairs office sometime before 12:20 to 12:30 a.m. Then, unbeknown to Mr. Bou-Daher, the intruder would have waited for Mr. Bou-Daher to depart.
5. At 1:10 a.m. on July 7, Mr. Bou-Daher went downstairs, set the alarm and immediately left the building with Mr. Badour. The alarm had a momentary arming delay to permit exit before the alarm would sound.
Between Mr. Bou-Daher’s descent downstairs at 1:10 a.m. and his arming of the alarm briefly thereafter, the intruder would have to: (1) notice, from his hiding spot, that Mr. Bou-Daher had gone downstairs, (2) emerge with the accelerant, (3) spray the accelerant on two separate locations, one being the office just vacated by Mr. Bou-Daher, (4) ignite two fires, and (5) leave the building. He would have to leave through the upper emergency exit door (Door #4) before the door’s alarm was armed after the exit delay. An exit through any other door on the main level would have been observable by Messrs. Bou-Daher and Badour. Mr. Bou-Daher’s statement (Exhibit 12) says “I locked the office door before I left and just used the door knob lock – not the dead bolt”. If this is accurate then, during the interval, the intruder also would have to (6) somehow overcome the door-lock to access the office where he set one of the fires.
The intruder would have to (7) accomplish all this without detection by Messrs. Bou-Daher or Badour, who were downstairs in a quiet setting before they left the building.
[36] This scenario has problems. Most significantly, there was no evidence of these hypothetical activities by any unidentified intruder inside Key Largos. Then, as noted above (para. 20), Ms. Newman-Simoneau’s testimony contradicted the Defence’s suggestion that someone had exited the emergency door around 1:10 a.m. Further, it is counter-intuitive that an intruder, with a limited opportunity and people within earshot downstairs, would choose to wrestle with the office door-lock, instead of just setting the fires outside the office before exiting. Nor is it apparent how he could bypass the lock, let alone the accomplish the rest of these logistics within the limited time span. The whirlwind vanishing arsonist is a figment from which reason recoils.
[37] Judge Derrick (paras. 91-92) found that the suggested scenario was “wholly unreasonable”, leaving the “only one rational inference” that Mr. Bou-Daher set the fires.
[38] The probative reality of an alternative hypothesis, offered to gainsay evidence of exclusive opportunity, varies from case to case. But the authorities’ treatment of the topic is instructive.
[39] In Yebes, the accused’s two children were found dead on a burning mattress. The evidence established that the fire had been deliberately set, and the boys were dead before the fire began. The cause of death was unknown, but likely was asphyxiation. The accused was convicted of second degree murder. The conviction rested on circumstantial evidence that the accused was the only person with opportunity. The Supreme Court of Canada affirmed his conviction. Justice McIntyre for the Court explained the approach in such a case:
… It may then be concluded that where it is shown that a crime has been committed and the incriminating evidence against the accused is primarily evidence of opportunity, the guilt of the accused is not the only rational inference which can be drawn unless the accused had exclusive opportunity. In a case, however, where evidence of opportunity is accompanied by other inculpatory evidence, something less than exclusive opportunity may suffice. [authorities omitted]
Since there is no evidence in this case directly connecting Yebes to the death of the children, the question which now arises is: Did the appellant during the relevant times have exclusive opportunity to commit the crime of murder? It is unquestionably established in the evidence that after the dinner at which Mrs. Yebes and her daughters were present with Yebes and the boys in the townhouse, Mrs. Yebes and the daughters left between 8:00 and 8:05 in the evening, leaving Yebes and the two boys alone in the house. There is no evidence whatever that she and the daughters, or any other person, were present in the house until the entry of Sergeant Shaw at about 1:00 a.m. The medical evidence established that before the fire was started the boys were killed by some human intervention and that their deaths occurred not later than 12:30 a.m. and possibly before 10:30 p.m. … There is no evidence of the presence of any other persons, save the two boys, in the town house that evening. Only the unlocked front door could raise a question as to exclusive opportunity. I am of the view that there was evidence before the jury upon which a properly charged jury could reasonably have reached the conclusion that Yebes had exclusive opportunity to kill the boys. I adopt the comment quoted above by Macdonald J.A. to the effect that the reality of the situation is that only Yebes had the opportunity as well as the motive to commit the crimes charged. …
[pp. 188-190]
Macdonald, J.A.’s comment, adopted by Justice McIntyre at the end of the passage, was:
Macdonald J.A. … stated that:
… The following statement from the respondent’s factum, with the additional words of mine which are underlined, is valid:
“The reality of the situation here was that only the accused was present in this self-contained suite with the two children. There can be no realism to any suggestion that an individual could break into or enter the house, accomplish the death of the children, place them on a mattress and set the fire. There is no suggestion in the evidence that any such event or events occurred nor indeed could they occur without the accused being aware of the commotion such actions would cause.”
[p. 179]
[40] Similarly, in Imrich v. The Queen, [1978] 1 S.C.R. 622, at p. 629, Justice Ritchie for the majority said:
There is in my view no evidence to support the suggestion that the fire was set before the appellant arrived or after he left and, in my view, it is not necessary, where a strong case of circumstantial evidence has been presented, for the Crown to exclude every speculative possibility which is consistent with innocence.
[41] Section 686(1)(a)(i) directs the court of appeal to assess whether the verdict is unreasonable. Yebes and the other authorities position the appellate analysis from the perspective of a reasonable trier of fact. The trial judge’s circumstantial evidence analysis is an application of the principle that the Crown must prove guilt beyond a reasonable doubt: R. v. Griffin, [2009] 2 S.C.R. 42, at para. 33, per Charron, J. for the majority. Alternative exculpatory inferences must be “rational or reasonable”: R. v. Griffin, at para. 35. The alternative must be a “reasonable inference to be drawn from the proven facts”: Cooper v. The Queen, [1978] 1 S.C.R. 860, at page 881, per Ritchie, J. for the majority. A “reasonable doubt is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence”: R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 30, per Cory, J. for the Court on this point.
[42] It is the trial judge’s function to assess reasonable doubt. Judge Derrick did so, and concluded that Mr. Bou-Daher’s proposed scenario was unreasonable. To overturn that conclusion in the Court of Appeal, Mr. Bou-Daher’s alternative hypothesis should be reasonable or rational – i.e. one that logically follows from a premise that either appears in the evidence or is sensibly inferred from circumstantial evidence. It’s not enough to just moot a far-fetched possibility that isn’t supported by anything. Saying this does not alter the onus of proof. Rather it recognizes that the Crown’s burden is to prove beyond a reasonable doubt, not beyond any irrational doubt. R. v. Paul, [1977] 1 S.C.R. 181, at p. 191, per Ritchie, J. for the majority. R. v. Thompson, 2015 NSCA 51, paras. 90-93. R. v. Seymour, 2005 NSCA 5, para. 103. R. v. Campbell, 2015 ABCA 70, paras. 51-53. R. v. Chin, 2014 ABCA 11, at para. 42. R. v. Pearson, 2014 ABCA 379, at para. 21. R. v. Dipnarine, 2014 ABCA 328, at paras. 22-25. R. v. Panghali, 2012 BCCA 407, at paras. 96-97. R. v. To (1992), 16 B.C.A.C. 223 (C.A.), at para. 41.
[43] Mr. Bou-Daher cites evidence that one or two other persons were in the vicinity outside Key Largos. He submits this lifts his alternative hypothesis from the level of conjecture.
[44] Mr. Bou-Daher’s statement of July 7, 2008 said he encountered one individual after he exited Key Largos on the morning of July 7. His statement continues:
Q. And this guy that you talk about, who …
A. He work next door.
Q. And you know him?
A. Yeah, I see him all the time working the night. Like on Sunday he was working that night there.
Q. Working next door at Needs?
A. Yeah. Yeah.
Mr. Bou-Daher’s statement of October 1, 2008 said: “The guy from next door. He was taking the garbage …”
[45] The judge (para. 55) noted that the video footage from the neighbouring Staples call centre depicted, at 1:08 a.m. on July 7, “a person emerges from around the brightly lit area in front of Tim Horton’s”. Then, at 1:16 a.m., a taxi pulled up outside Tim Horton’s, someone got in and the taxi left (Decision, para. 57). The judge (para. 93) said the taxi “pulled up by the Tim Horton’s where its fare may have been an end-of-shift employee”.
[46] Nothing suggests that these individuals’ presence outside was out of the ordinary. They were just people in the neighbourhood. Nothing connects either a night shift employee of a nearby convenience store or someone leaving Tim Horton’s to the fire or to Key Largos. Nor is there an explanation how either individual could have managed the logistics described above (para. 35).
[47] Mr. Bou-Daher points out that no empty gas container was found. With respect, this does not mean the judge’s finding - that Mr. Bou-Daher had the exclusive opportunity to set the fires - was palpably wrong or unreasonable. For example, on Key Largos’ premises were many empty liquor bottles, any of which could have held the accelerant.
[48] I agree with the judge that the only rational conclusion from the evidence is that Mr. Bou-Daher set the fires. The verdict is not unreasonable.
Conclusion
[49] I would dismiss the appeal.
Fichaud, J.A.
Concurred:
MacDonald, C.J.N.S.
Saunders, J.A.