R. v. Campeau

R. v. Campeau Collection Decisions of the Court of Appeal Date 1999-06-28 Docket numbers C30122 Judges Brooke, John Watson; Austin, Allan McNiece; Moldaver, Michael James Subject Criminal Decision Content DATE: 19990628 DOCKET: C30122 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) v. DEREK CAMPEAU (Appellant) BEFORE: BROOKE, AUSTIN AND MOLDAVER JJ.A. COUNSEL: Michelle Fuerst For the appellant Susan Reid For the respondent HEARD: June 4, 1999 On appeal from the judgment of Zuber J., sitting with a jury, conviction dated, June 19, 1998 and sentence dated June 26, 1998 ENDORSEMENT CONVICTION APPEAL [1] The appellant has raised a number of grounds of appeal. The first was that the trial judge interrupted counsel in such a fashion as to betray a bias or to obstruct counsel in the conduct of the case. The record has been examined for our benefit by both counsel. We are not persuaded that there is merit in this ground of appeal. [2] The second ground, failure to charge on motive, is more troublesome. The conduct of the accused was, to say the least, bizarre. Defence counsel [not Ms. Fuerst] led evidence to support the contention that the appellant had no motive to light the fire. In her address to the jury, she relied on that evidence. Crown counsel, on the other hand, while not conceding that there was no evidence of motive, suggested to the jury that they could consider the bizarre conduct demonstrated towards his neighbours and his anger as indicating a motive. This was rationally hard to sustain. [3] In his charge, the trial judge reminded the jury of the detailed addresses given by counsel and he made it clear that in reviewing their respective positions, he “did not intend to track the same detail.” The complaint is now made, for the first time on appeal, that the trial judge should have charged the jury on the proved absence of motive as circumstantial evidence relevant to the issue of the appellant’s intent. [4] There is no doubt that there is an obligation on the trial judge to be sure that the jury understands the evidence as it relates to the issues in the case. This is particularly important in the context of the jury understanding the defences raised. That said, in this case, the question of the appellant’s intent did not rest solely or even primarily upon inferences to be drawn from the circumstantial evidence. Here, there was an eye witness who testified that she saw the appellant pour gasoline on the porch and light it. This was the pivotal evidence in the case. If the jury believed that evidence, the element of intent was established. [5] It follows, in our view, that while it would have been preferable had the trial judge charged the jury on the proved absence of motive, having regard to the eyewitness testimony and counsel’s lack of objection, we are not persuaded that his failure to do so was fatal. Accordingly, we would not give effect to this ground of appeal. [6] The next issue is whether the charge to the jury was adequate in light of the decision of the Supreme Court of Canada in R. v. W. (D.) (1991), 63 C.C.C. (3d) 397. In our view, it was. Contrary to the submissions of counsel for the appellant, the jury was not left with the impression that the rejection of the evidence of the appellant could be relied upon as a positive factor in concluding that the appellant was guilty beyond a reasonable doubt. [7] Finally, the appellant complained that evidence had been admitted which was hearsay and self-serving. Most of that evidence went to the question of identity which was not in issue. To the extent that it went to the critical issue of whether the eyewitness had seen the appellant pour the gasoline and had told a police officer of this at the scene, it was admissible to rebut the allegation of recent fabrication. (see R. v. Campbell (1997), 38 C.C.C. (2d) 6 (Ont. C.A.). [8] Accordingly, the appeal against conviction is dismissed. SENTENCE APPEAL [9] The appellant seeks leave to appeal the sentence of 18 months. He submits that the trial judge erred in refusing to impose a conditional sentence and, in the alternative, that the sentence of 18 months was manifestly excessive and beyond the usual range of sentences imposed in similar circumstances. [10] With respect, we see no merit in either submission. The trial judge’s reasons disclose no error in principle and he was justified, under the circumstances, in refusing to impose a conditional sentence. We are also of the view that the sentence was fit and within the appropriate range. [11] The offence of arson endangering life is the most serious of the arson offences. It is punishable by a maximum sentence of life imprisonment. The appellant’s conduct was deliberate and required some planning. He went out on the porch twice and poured gasoline over it before lighting the fire. The porch was attached to a house in which three adults and two children were sleeping. The appellant’s conduct placed a number of lives at risk. According to the fire investigator, had the fire not been contained so quickly, it would have been much more serious. [12] We note as well that the appellant is not a first offender and he has shown no remorse or contrition for the offence. [13] Accordingly, leave to appeal sentence is granted but the appeal is dismissed. “John W. Brooke J.A.” “Austin J.A.” “M.J. Moldaver J.A.”