Date: 20020322
Docket: 00/32
Decision No.: 2002 NFCA 18
SECTION 38 OF THE YOUNG OFFENDERS
ACT RESPECTING NON-PUBLICATION OF
IDENTITY APPLIES TO THIS JUDGMENT.
IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR
COURT OF APPEAL
BETWEEN:
HER MAJESTY THE QUEEN APPELLANT
AND:
S. D. D. RESPONDENT
Coram: Wells, C.J.N., Mahoney and Marshall, JJ.A.
Court Appealed From: Provincial Court of Newfoundland, Youth Court
Appeal Heard: October 19, 2001
Judgment Rendered: March 22, 2002
Reasons for Judgment by Wells, C.J.N.
Concurred in by Mahoney and Marshall, JJ.A.
Counsel for the Appellant: Stephen Dawson
Counsel for the Respondent: Randolph Piercey
Wells, C.J.N.:
[1] As a result of a fire in a convenience store, the respondent was charged, pursuant to the Criminal Code, with arson in breach of s. 433(a) (where the property is inhabited or occupied) and in breach of s. 434 (property not owned by accused). The respondent was acquitted on both charges but convicted of the lesser included charge of mischief contrary to s. 430(1)(a).
[2] This appeal by the Crown involves primarily the narrow issue of the nature of the mens rea that is necessary to support a conviction on a charge of arson under s. 433(a) or s. 434. Following its conclusion as to the mens rea required, the Court will have to decide whether, on the evidence, the trial judge erred in convicting the respondent of the included charge of mischief under s. 430(1)(a), instead of convicting the respondent under one or other of the arson charges.
Background Facts
[3] The trial judge did not summarize the facts. As a result, he provided no direct indication as to the extent of his consideration of the evidence. The Crown, in its factum, outlines the essential evidence and the respondent’s factum indicates she does not take issue with that summary. From that the non contentious background facts can be discerned.
[4] The respondent, 16 at the time, had been drinking beer with a number of her high school friends. It was said that she had consumed five or six bottles of beer. She then went, with her friends, to the vicinity of a convenience store in Mt. Pearl, known as Marie’s Mini Mart. The respondent asked one of her friends to go into the store with her as she wished to get a bag of potato chips. The respondent did not herself have sufficient money to purchase the chips and while her friend had sufficient money for that purpose, her friend required it for another purpose and could not lend it to the respondent. The respondent then decided she would steal a bag of the potato chips. She noted that there were other persons in the store including the clerks.
[5] She borrowed a cigarette lighter from her friend in order to apply the flame to a corner of the bag of chips and cause a hole to be created. In that way the air would be expelled and the bag could be crushed and folded over and put inside her coat. This would also eliminate the noise that chips in a bag filled with air would otherwise make.
[6] The respondent applied the flame to the corner of a bag of chips but, because she noticed that the clerks were looking at them, she and her friend walked around to the back of the rack to which the bags of chips were attached. After a minute or so they returned. Instead of a hole in the bag, they found the bag in full flame. Most of it had melted and, in liquid form, was dropping down on other bags and on the floor. The respondent tore the flaming bag off the rack and stamped the flames out. With the fire on that bag of chips stamped out, she and her friend left the store immediately without mentioning the fire to any of the store staff. A fire resulted and did a total of $110,000.00 damage to the store and its contents.
[7] The respondent was charged with arson. The information charged that the respondent:
(1) … did intentionally or recklessly cause damage by fire to property, namely: Marie’s Mini Mart … when she knew or was reckless with respect to whether the property was inhabited or occupied, thereby committing an indictable offence, contrary to section 433(a) …,
and
(2) … did intentionally or recklessly cause damage by fire to property, namely: Marie’s Mini Mart … thereby committing an indictable offence, contrary to section 434 …
Prior Proceedings
[8] By consent of the parties, at trial, Crown counsel read in summaries of the evidence of three witnesses. The Crown then called K. R., the friend of the respondent, who was with her at the time. The respondent was the only witness for the defence. The trial judge effectively determined, although he did not explicitly state it, that there was no issue on the facts when, at the conclusion of summation by counsel, he made his only observations on the evidence. He said:
I don’t see any contradiction in the evidence between the two girls. They’re both saying the same thing basically a little bit difference in perception. Either one of them which would easily be explained by the fact that they were probably both somewhat intoxicated in that night, so the little bit on the times means nothing. As a matter of fact I’d be at the exact same point there now in this decision if I hadn’t even heard any evidence from the first witness, Ms. K. R. and it was just the accused evidence that I was going on it wouldn’t be any difference. And as the causal connection of the fire is not in issue anyway. And Ms. S. D. D. has told me she put a lighter to a bag of chips and we all know the result. The question is whether or not based on her evidence is whether or not she’s criminally liable.
[Emphasis added.]
[9] After expressing his view, quoted above, as to the evidence, the trial judge reserved his decision. A week later he rendered his decision without any further reference to the evidence. He simply said:
I’m satisfied that she cannot be convicted of either one of these charges as laid and I base that on the cases and the submissions made to me and the law regarding intention as it applies to all criminal cases and in this particular case has (sic) it applies to arson charges. And I base that decision on the Connors case [R. v. Connors (F.P.) reflex, (1996), 146 Nfld. & P.E.I.R. 246 (NFCA)] and on the old Molloy case, [R. v. Malloy (1983), 42 Nfld. & P.E.I.R. 129 (Nfld. Dist. Ct.)] Judge Adams, and I don’t think the law has changed regarding intention.
[10] The trial judge found that the respondent could, however, be convicted of the included offence of mischief under s. 430. He endorsed the information with the following:
March 22/00.
Accused found not guilty of counts 1 and 2 but guilty of the included offence of 1 count of mischief contrary to 430(1)(a) – 430(5)(a).
Section 430(5)(a) specifies the punishment that may be imposed upon conviction for an offence of the nature of the offence under s. 430(1)(a). Because the respondent had no record and because of the other factors he mentioned, the trial judge sentenced the respondent to 12 months probation.
Appeal
[11] The Crown appeals, stating the issue to be:
Did the learned trial judge err in law by convicting the accused of mischief, but not arson, on the facts of this case?
The Respondent describes the issue to be:
Did the Crown prove beyond a reasonable doubt that the Respondent intentionally or recklessly caused damage by fire to property namely Marie’s Mini mart contrary to Section 433(a) of the Criminal Code of Canada?
(a) Argument of the Crown
[12] The Crown contends that the evidence established all of the elements of arson and the respondent ought to have been convicted of arson. Essentially, the Crown gives what is a single ground of appeal two faces. First it argues that its burden was discharged upon the Crown proving that the respondent intentionally set fire to the bag of chips, the burning of the building being a consequence of that underlying unlawful act. Crown counsel cites R. v. DeSousa, 1992 CanLII 80 (S.C.C.), [1992] 2 S.C.R. 944 in support of his first argument and submits that it is authority for the proposition that it is sufficient for the Crown to prove intention only in relation to the underlying act and the respondent is to be held to have intended all of the consequences. Thus, he submits, even though the respondent’s intention may only have been in relation to the bag of chips, that is sufficient to establish the mens rea necessary to support a charge of arson if the building burns as a result.
[13] Second, counsel argues that “the essential element of mens rea is the wilful setting fire to the thing which was objectively likely to cause the building to catch fire” [Emphasis in original]. He refers to the majority decision in R. v. Buttar reflex, (1986), 52 C.R. (3d) 327 (BCCA), as support for this proposition. He cites R. v. Creighton, 1993 CanLII 61 (S.C.C.), [1993] 3 S.C.R. 3, and other cases[1] involving similar issues decided at the same time, as authority for the proposition that “except for those offences that require subjective foresight of consequences (e.g. murder, attempted murder, etc…) recklessness and criminally negligent conduct are virtually the same and will be sufficiently proven by the application of an objective standard.” [Emphasis added.] The Crown further submits that this Court gave the term “reckless” a more objective standard in R. v. Connors (F.P.) reflex, (1996), 146 Nfld. & P.E.I.R. 246. He quotes this Court, in that case, as stating “in this context we take ‘reckless’ to mean more than a mere error of judgment, but rather a very significant departure from the standard of a reasonable person; in other words complete indifference as to the consequences …”.
(b) Argument of the respondent
[14] It was argued on behalf of the respondent that unlike manslaughter, the example used by the Crown, the charge of arson does not necessarily involve a consequence that is the result of the commission of an underlying unlawful act. Arson, the respondent submits, requires that the specific intent be established. Counsel for the respondent cites R. v. Sansregret, 1985 CanLII 79 (S.C.C.), [1985] 1 S.C.R. 570 as support for his proposition that recklessness is to be judged on a subjective, not an objective, standard. He refers to the precise wording of the charges set out in the information and submits that the Crown has failed to prove that the respondent either intentionally or recklessly caused damage by fire to Marie’s Mini Mart. He submits that the Crown’s burden cannot be discharged simply by establishing that the respondent intentionally or recklessly caused damage to the bag of chips, even though the damage to Marie’s Mini Mart flowed out of that activity. He further submits that the conclusion of the trial judge, that the respondent did not have the intention necessary to be convicted of arson but was guilty of mischief, is consistent with the evidence and with the law.
Issues
[15] Deciding this appeal ultimately requires the Court to determine whether or not the trial judge erred in concluding that the law regarding intention as it applies to all criminal cases, and in this particular case as it applies to arson charges, does not permit a finding that the respondent is guilty of arson under either s. 433(a) or s. 434, but it does permit a finding that the respondent is guilty of mischief under s. 430(1)(a). In light of the arguments presented by the parties, making that determination requires assessment of the law on one question:
What is the mens rea required to support a conviction on a charge of arson under s. 433(a) or s. 434?
[16] The two issues the parties have left with the Court are:
1. Is arson, in respect of Marie’s Mini Mart proven, upon the Crown proving only intentional application of flame to the bag of chips and the building burning as a result?
2. Did the trial judge err in concluding that the Crown did not establish, on the evidence in this case, the mens rea required for conviction under either s. 433(a) or s. 434, as charged in the indictment?
However, for reasons that will later be explained, one further matter will have to be considered. That matter is:
3. If the respondent is not guilty of arson under either s. 433(a) or 434, was the conviction for the included offence of mischief, contrary to s. 430.1(a) , a proper finding or ought the respondent to have been convicted under another provision of s. 430?
The Law
[17] Section 433 of the Criminal Code reads as follows:
433. Every person who intentionally or recklessly causes damage by fire or explosion to property, whether or not that person owns the property, is guilty of an indictable offence and liable to imprisonment for life where
(a) the person knows that or is reckless with respect to whether the property is inhabited or occupied; or
(b) the fire or explosion causes bodily harm to another person.
Section 434 reads as follows:
434. Every person who intentionally or recklessly causes damage by fire or explosion to property that is not wholly owned by that person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
[18] In each of ss. 433(a) and 434 Parliament has used the same words to specify the nature of the mens rea required to establish the offence, namely: “intentionally or recklessly”. The respondent is, in each count in the indictment, charged specifically with “intentionally or recklessly causing damage to property, namely: Marie’s Mini Mart, 1 Dunnes Road, Mount Pearl”. Thus, the actus reus having been proven, guilt of the respondent on either charge requires proof that the damage by fire to Marie’s Mini Mart was either “intentionally” caused, or “recklessly” caused, by the respondent.
[19] It is not suggested by the Crown that the evidence can support a conclusion that the respondent intentionally caused damage to Marie’s Mini Mart. Whatever the evidence may establish the respondent’s intention or actions to have been, in respect of the burned bag of chips, the only evidence before the trial judge, respecting the respondent’s intention in relation to the property described as Marie’s Mini Mart, is that there was no intent to cause damage to that property. Proving that the respondent intentionally set fire to the bag of chips cannot, in light of all of the evidence, support a conclusion that she intentionally caused damage by fire to the property identified as Marie’s Mini Mart. The respondent’s guilt or innocence on the charges specified in the indictment must, therefore, depend on the Crown proving that the respondent “did … recklessly cause damage by fire to … Marie’s Mini Mart”. The argument presented by the Crown requires that the Court first determine the nature of the mens rea necessary to establish that a person acts recklessly, in the context of ss. 433 or 434.
[20] In R. v. Hundal, 1993 CanLII 120 (S.C.C.), [1993] 1 S.C.R. 867, Cory J. was dealing with the constitutional requirement of mens rea, in the context of a dangerous driving charge. In expressing the view supported by the majority, at p. 882-883, he wrote:
Depending on the provisions of the particular section and the context in which it appears, the constitutional requirement of mens rea may be satisfied in different ways. The offence can require proof of a positive state of mind such as intent, recklessness or wilful blindness. Alternatively, the mens rea or element of fault can be satisfied by proof of negligence whereby the conduct of the accused is measured on the basis of an objective standard without establishing the subjective mental state of the particular accused. In the appropriate context, negligence can be an acceptable basis of liability which meets the fault requirement of s. 7 of the Charter: see R. v. Wholesale Travel Group Inc. 1991 CanLII 39 (S.C.C.), [1991] 3 S.C.R. 154. Thus the intent required for a particular offence may be either subjective or objective.
A truly subjective test seeks to determine what was actually in the mind of the particular accused at the moment the offence is alleged to have been committed. In his very useful text, Professor Stuart puts it in this way in Canadian Criminal Law, supra, at pp. 123-4 and p. 125:
What is vital is that this accused given his personality, situation and circumstances, actually intended, knew or foresaw the consequence and/or circumstance as the case may be. Whether he “could”, “ought” or “should” have foreseen or whether a reasonable person would have foreseen is not the relevant criterion of liability.
[Emphasis added.]
[21] McLachlin J. (as she then was) agreed with the reasons and disposition proposed by Cory J., but added her own observations on this issue. In doing so, she emphasized the distinction between the subjective and objective standards. At p. 871-872 she wrote:
As my colleague Cory J. points out, fault in criminal offences may be assessed by an objective standard or by a subjective standard. An offence can require proof of a positive state of mind, such as intent, recklessness or wilful blindness. If so, the Crown must prove beyond a reasonable doubt that the accused possessed the requisite state of mind. This is a subjective test, based on what was actually in the accused’s mind. On the other hand, the fault may lie in the accused’s negligence or inadvertence. In this case an objective test applies; the question is not what was in the accused’s mind but the absence of a mental state of care. This want of due care is inferred from conduct of the accused. If that conduct evinces a want of care judged by the standard of a reasonable person in similar circumstances, the necessary fault is established.
[Emphasis added.]
[22] In writing for the majority in R. v. Creighton, 1993 CanLII 61 (S.C.C.), [1993] 3 S.C.R. 3, McLachlin J. restated her views as to the distinction between the two standards. They are clearly expressed, at p. 58, as follows:
By way of background, it may be useful to restate what I understand the jurisprudence to date to have established regarding crimes of negligence and the objective test. The mens rea of a criminal offence may be either subjective or objective, subject to the principle of fundamental justice that the moral fault of the offence must be proportionate to its gravity and penalty. Subjective mens rea requires that the accused have intended the consequences of his or her acts, or that knowing of the probable consequence of those acts, the accused have proceeded recklessly in the face of the risk. The requisite intent or knowledge may be inferred directly from what the accused said or says about his or her mental state, or indirectly from the act and its circumstances. Even in the latter case, however, it is concerned with “what was actually going on in the mind of this particular accused at the time in question”: L’Heureux-Dubé J. in R. v. Martineau, supra at p. 655, quoting Stuart, Canadian Criminal Law, (2nd ed. 1987), at p.121.
Objective mens rea, on the other hand, is not concerned with what the accused intended or knew. Rather, the mental fault lies in failure to direct the mind to a risk which the reasonable person would have appreciated. Objective mens rea is not concerned with what was actually in the accused’s mind, but with what should have been there, had the accused proceeded reasonably.
[23] The concept of recklessness as a basis for criminal liability was addressed by McIntyre J. in R. v. Sansregret, 1985 CanLII 79 (S.C.C.), [1985] 1 S.C.R. 570. At page 581-582 McIntyre J. wrote:
The concept of recklessness as a basis for criminal liability has been the subject of much discussion. Negligence, the failure to take reasonable care, is a creature of the civil law and is not generally a concept having a place in determining criminal liability. Nevertheless, it is frequently confused with recklessness in the criminal sense and care should be taken to separate the two concepts. Negligence is tested by the objective standard of the reasonable man. A departure from his accustomed sober behaviour by an act or omission which reveals less than reasonable care will involve liability at civil law but forms no basis for the imposition of criminal penalties. In accordance with well-established principles for the determination of criminal liability, recklessness, to form a part of the criminal mens rea, must have an element of the subjective. It is found in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and who takes the chance. It is in this sense that the term ‘recklessness’ is used in the criminal law and it is clearly distinct from the concept of civil negligence.
[Emphasis added.]
[24] This approach received further approbation in R. v. Cooper, 1993 CanLII 147 (S.C.C.), [1993] 1 S.C.R. 146, on appeal from a decision of this Court. At p. 155 Cory J. wrote:
The concept of recklessness was considered by this Court in Sansregret v. The Queen, 1985 CanLII 79 (S.C.C.), [1985] 1 S.C.R. 570. At page 582 it was said
[Recklessness] is found in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and who takes the chance.
The same words can apply to s. 212(a)(ii) with this important addition: it is not sufficient that the accused foresee simply a danger of death, the accused must foresee a likelihood of death flowing from the bodily harm that he is occasioning the victim.
[Emphasis added.]
[25] Applying the foregoing principles to the wording of ss. 433 and 434, it is clear that the mens rea specified by Parliament in those sections is subjective. To quote McIntyre J. in Sansregret, “recklessness, to form a part of the criminal mens rea, must have an element of the subjective.” I conclude, therefore, that absent proof of a specific intent to cause damage by fire to the property specified, an accused can only be found guilty of arson, contrary to either s. 433 or 434, upon proof that the accused actually knew that damage by fire to the property specified was the probable consequence of the actions the accused proposed to take, and the accused proceeded to take the actions in the face of the risk.
Analysis
Issue One: Is proof of intentional burning of the bag of chips sufficient to establish arson as charged?
[26] The argument of the Crown, that all it has to prove is the respondent’s intent to apply flame to the bag of chips and she is guilty of arson in respect of whatever burns as a result, is not in accord with the principles identified above, and must be rejected. Essentially, the Crown is asking the Court to accept, as sufficient to prove either of the charges of arson, the mens rea required to prove mischief, contrary to s. 430(5.1)(a). R. v. DeSousa, 1992 CanLII 80 (S.C.C.), [1992] 2 S.C.R. 944, relied on by the Crown, does not support the Crown’s argument. That case deals with the offence of “unlawfully causing bodily harm” which does not require the Crown to establish either that the accused acted “intentionally” or was “reckless”. Both Hundal and Creighton, also cited by the Crown, require proof of actual knowledge of the probable consequences, while recklessly proceeding in the face of that risk, and cannot be relied on to support the Crown’s argument. In fact, they support the opposite conclusion. I conclude, therefore, that proof of the intentional burning of the bag of chips without proof of knowledge of the probable consequence of burning the building, is not sufficient to prove the charge specified in the information, arson in respect of the building.
Issue Two: Did the trial judge err in concluding that the Crown did not establish, on the evidence in this case, the mens rea required for conviction either on s. 433(a) or 434
[27] Resolving this issue requires the Court to assess the trial judge’s decision for conformity with what results when the principles identified in the foregoing assessment of the law are applied to the facts found at trial. That creates somewhat of a problem as, the trial judge not only did not explain his reasoning, he made no specific findings of fact. The only view expressed by the trial judge that bears at all on the facts is his extremely brief comment quoted in paragraph 8 above. That leaves this Court unable to discharge its appellate review function without first examining the record, and making the findings of fact necessary to enable the Court to come to a conclusion as to whether or not the verdict of the trial judge was supportable on the evidence before him.
[28] Circumstances in which appellate review of the record might be appropriate were considered by this Court, in Sweeney et al. v. Zurich Insurance Co. et al. reflex, (1999), 175 Nfld. & P.E.I.R. 281. Marshall J.A. wrote, at paragraphs 81-82, that:
However, while fully recognizing the importance of appellate deference and that it is no function of an appellate court to reverse factual findings at first instance merely out of a preference “to accept other evidence to the contrary”, the law does not entirely relegate courts of appeal to hapless passive bystanders insofar as factual findings at trials are concerned. In Yuill v. Yuill, [1945] 1 All. E.R. 183 (C.A.), Lord Greene, M.R., summed up at p. 188 the appellate power with respect to a trial judge’s appraisal of the evidence in the following terms:
“It can, of course, only be on the rarest occasions and in circumstances where the appellate court is convinced on the plainest considerations that it would be justified in finding that the trial judge had formed a wrong opinion. But when the court is so convinced it is, in my opinion, entitled and indeed bound to give effect to its conviction. It has never been laid down by the House of Lords that an appellate court has no power to take this course. Puisne judges would be the last persons to lay claim to infallibility, even in assessing the demeanour of a witness.”
Neither has the Supreme Court of Canada ever laid down that an appellate court is devoid of power to review factual conclusions on the basis of wrong opinion drawn by trial judges from evidence adduced before them. To the contrary, where issues of the appreciation of evidence at first instance are raised, courts of appeal have been explicitly directed in R. v. Harper, 1982 CanLII 11 (S.C.C.), [1982] 1 S.C.R. 2; 40 N.R. 255, to review the record against a complaint of misapprehension of evidence. Thus, in his oft-quoted passage to that effect from Harper, Estey, J., wrote at p. 14:
“An appellate tribunal has neither the duty nor the right to reassess evidence at trial for the purpose of determining guilt or innocence. The duty of the appellate tribunal does, however, include a review of the record below in order to determine whether the trial court has properly directed itself to all the evidence bearing on the relevant issues. Where the record, including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing court to intercede.”
The Court must, therefore, intercede to the extent necessary to make such findings of fact as are required in order to assess this ground of appeal.
(a) Review of the record
[29] In his comments at the conclusion of summation by counsel, quoted in paragraph 8 above, the trial judge noted, in relation to the respondent and her evidence, that
· “The question is whether or not based on her evidence is (sic) whether or not she’s criminally liable”.
· “As a matter of fact I’d be at the exact same point there now in this decision if I hadn’t even heard any evidence from the first witness, Ms. K. R. and it was just the accused evidence that I was going on it wouldn’t be any difference.”
[Emphasis added.]
Unfortunately, those were virtually his only comments with respect to the evidence. Nevertheless, it is reasonable to conclude from those comments that the trial judge accepted the evidence of the respondent. However, they would also indicate he was accepting the evidence of K. R. as well. Essentially, he is indicating that the evidence of the two are sufficiently similar that he need only have heard one. With great respect to the trial judge that betrays misapprehension of the evidence in this case.
[30] The respondent’s version of the event is reflected in the following excerpts from her evidence. On direct examination she said:
A. I asked K. R. for her lighter which was the blue lighter that she gave to me and I used it to light the corner of the bag. Two of us proceeded to the other side of the rack, looked at chips, came back. When I came back there was no bag of chips there anymore. Just chips on the rack and the plastic was melting down onto the other bags. I grabbed it off the rack. I threw it on the floor and I started stamping trying to get it out and she helped me trying to put it out.
Q. Now for one when you lite the corner of the bag why didn’t you put it on your person right away?
A. Because I noticed that the clerks were looking at us.
………..
Q. Okay. When you finished stamping out the -stamping on the chips did you see any flame in the area?
A. No, it was just melted plastic on the floor. I thought it was out so we took off.
……….
Q. When you left did you feel that the fire had been extinguished?
A. Yes, I did.
Q. What did you do when you left?
A. We went out to the side of the store and continued to talk to the people that were there. We must have been on the side of the store for at least fifteen, twenty minutes just hanging around, and L. S. and J. went in came out saying that there was a fire, there was a fire.
[31] The respondent’s evidence as to what, with respect to Marie’s Mini Mart, she intended when she applied fire to the bag of chips, and when she left the store, is to be found in the following question and answer exchange, also on direct examination:
Q. When you – when that fire took place or when you set the bag of chips afire did you have any intention of causing damage to Marie’s Mini Mart Store?
A. No, I did not.
Q. When you left the store did you think that any damage would result from what you had done?
A. No, not at all. I thought the fire was completely put out. I didn’t think something that small would amount to that big.
[Emphasis added.]
[32] Her explanations did not vary on cross-examination.
[33] The difference between the evidence of the respondent and the evidence of her friend is obvious from the following exchange resulting from questions put to K. R. on direct examination:
Q. Did she put it out?
A. No, it was catching onto the other bags of chips.
Q. When you were there how many bags of chips were on fire, when you first saw the fire?
A. I seen one on the corner of one. And I can’t count after that cause it was just catching into everything else.
Q. So after she called you over and you saw the fire on the bag of chips and it seemed to spread what did you girls do then?
A. I immediately left.
Q. What did S. D. D. do?
A. She came behind me..
……….
Q. How long were you outside together before you parted her company?
A. How long were we outside?
Q. Outside after the fire?
A. Not that long. We just ran out of the store and just – everybody left.
[Emphasis added.]
[34] However, her evidence was somewhat malleable. The impression resulting from her answers changed depending on whether the answers had been given in her original statement to the police, or were given on direct, cross or re-direct examination. On cross-examination by counsel for the respondent K. R.’s answers to questions were as follows:
Q. So the only fire you saw was in the middle of the rack, Ms. S. D. D. took it out, and put it down, and started to stamp it out?
A. Yes.
Q. Did you help her in that?
A. No, I left the store immediately.
Q. Are you sure?
A. I don’t remember. I might have helped her. I’m not sure I don’t remember it was a long time ago.
Q. When you left the store Ms. S. D. D. left right behind you, did she?
A. Yes.
Q. The only fire you saw was on the floor on those chips?
A. It caught on – it was catching to a few other bags of chips around it.
Q. But didn’t you tell the police – do you remember giving a statement to the police?
A. Yes, I do.
……….
Q. I’ll show you a copy of your statement. Is that your signature?
A. Yes, it is.
Q. Do you recognize your mother’s signature?
A. Yes, I do.
Q. I’ll just refer you to this: did you tell the police she was trying to put the fire out with her feet? The fire was on the bag of chips on the floor. I never saw any other fire around?
A. Yes, I did.
Q. And is that actually what you saw at the time?
A. Yes.
Q. So when you left the store did you think the fire was out?
A. I wasn’t really sure. I never checked back to look. I just left the store.
[Emphasis added.]
[35] On re-direct, by Crown counsel, in answer to his question as to why her evidence had “changed a little bit from what you told the police”, she concluded with:
A. Well what I saw – I saw a lot of fire on one bag of chips and S. D. D. took that and put it on the floor and tried to put it out and, obviously, all the fire wasn’t gone cause the rest of the chip rack went up in flames, so there was small flames on other bags of chips.
[Emphasis added.]
[36] The only other evidence was the summary of the statements of the two clerks and a customer, in the store at the time, which was read into the record, by Crown counsel, with the consent of defence counsel. Of the evidence read in by Crown counsel, only two small portions may be relevant to the question of whether or not the chip bags on the rack were in flames when the respondent walked away from them. First, one of the clerks said:
I had just come in – back into the store from a smoke break. I noticed a girl go in the store before me. She was at the Lay’s chip rack. My co-worker told me to keep an eye on this girl. She was acting suspiciously according to my co-worker. Another girl came into the store and the girl at the chip rack called out to her to come down and help her pick out a bag of chips. They were looking at the chips and then they left. As they were leaving the store the first girl stated they didn’t want a bag of chips. They left the store. Within a minute or so I saw a fire coming from the chip rack where the girls were at.
[Emphasis added]
Second, a customer whose daughter, Amanda, was the second clerk working in the store at the time, said:
While I was there, I noticed two young females in the store. My daughter was concerned about these females they were acting suspiciously. At one point my daughter left the cash area and she asked her co-worker to keep an eye on these girls. After my daughter left the front of the store and went back in the back portion of the store. Amanda asked me to come back and see her, so I did. I was only back there a minute, all I heard was oh my god there’s a fire. I have no idea who said this. I can remember before I left to go back to see Amanda the two girls were leaving the store.
[Emphasis added]
[37] Taking into account all of the foregoing excerpts it is impossible to avoid concluding that the trial judge misapprehended the evidence of the respondent and K. R.. Clearly, the trial judge was not correct in concluding that there was no contradiction in the evidence between the two girls. There was and the contradiction was significant.
[38] The contradiction bore on two quite significant points. One was the length of time between their leaving the store and their becoming aware of a fire inside the store. The respondent says they were outside the store for at least 15 to 20 minutes before one of their group went in and discovered there was a fire inside. K. R., in answering a direct question as to how long they were outside, said “Not that long. We just ran out of the store and just – everybody left.” That difference not only bears on the question of whether or not there were flames on the chip rack, which were visible when the respondent and her friend left the store, but obviously it may be significant in assessing credibility. As to that contradiction, the trial judge simply observed, “ … they were probably both somewhat intoxicated on that night, so the little bit on the times means absolutely nothing”. He said nothing about any possible contradiction between the evidence of the respondent, as to the length of time before she became aware of the fire, and the evidence of the clerk and of the customer, and the impact that could have on the credibility to be accorded to the respondent.
[39] The second point of contradiction related to whether or not the respondent knew there were flames on any of the other chip bags when the girls left the store. The respondent’s evidence is clear and explicit. It emphasizes that there were no flames remaining when they left the store. It would be difficult to come to a conclusion, relying on the evidence of K. R., as to what either she or the respondent knew with respect to whether or not there was fire on other bags of chips when they left the store. Her evidence varied from:
(i) “it was just catching into everything else”;
to
(ii) “the fire was on the bag of chips on the floor. I never saw any other fire around”;
to
(iii) when asked whether when she left the store she thought the fire was out, a reply that “I wasn’t really sure. I never checked back to look”;
to
(iv) “obviously, all the fire wasn’t gone cause the rest of the chip rack went up in flames, so there was small flames on the other bags of chips”.
(b) Conclusions on review of the record
[40] Even if the trial judge had fully appreciated the evidence of K. R., he would have no alternative but to conclude that it could not be relied on to establish essential facts, on a standard of proof beyond a reasonable doubt. It contained nothing that would indicate that the respondent knew, when she applied flame to the chip bag, that damage to Marie’s Mini Mart was the probable result. K. R.’s evidence may be acceptable to prove, on a balance of probabilities, that the respondent knew there were flames on the other bags of chips and that damage to Marie’s Mini Mart was the probable result of leaving without telling the clerks of the fire, but it is not sufficient to prove that to be so, beyond a reasonable doubt. Because of inherent contradictions, it is not sufficiently reliable to meet that standard.
[41] The only other evidence before the trial judge is not persuasive one way or the other. The evidence of both the clerk and the customer indicate the flames were only seen by them after the respondent and her friend left the store. The clerk said, “Within a minute or so [after they left the store] I saw flames coming from the chip rack”. The customer said:
After my daughter left the front of the store and went back in the back portion of the store. Amanda asked me to come back and see her, so I did. I was only back there a minute, all I heard was oh my god there’s a fire. I have no idea who said this. I can remember before I left to go back to see Amanda the two girls were leaving the store.
That evidence is as consistent with there not being any flames noticeable when the respondent and her friend left the store, as it is with there being flames, from which it could be inferred that the respondent knew that the damage which occurred was probable, but left anyway without telling the clerks of the flames.
(c) The law applied to these conclusions
[42] Applying the principles, identified in the above assessment of the law, to the facts that can be said to have been established beyond a reasonable doubt, I must conclude that the trial judge did not err in his determination that the respondent could not be convicted on either of the charges as laid, although I come to that conclusion on the basis of law and reasoning different from that indicated in the brief comments of the trial judge. There is no evidence of a specific intent to cause damage by fire to Marie’s Mini Mart. There is not sufficient evidence to support concluding that, beyond a reasonable doubt, the respondent otherwise had the requisite intent. That conclusion is unavoidable, when the standard of proof beyond a reasonable doubt is applied, with the principles identified by McIntyre J. in Sansregret, respecting the mens rea required to establish recklessness.
[43] Given the comments of the trial judge, effectively indicating he accepted the evidence of the respondent, and given the inherent unreliability of the evidence of K. R. as to whether or not there were flames on the chip bags on the rack when the respondent left the store, I am of the view that the evidence contained in the excerpts from the transcript, set out in paragraphs 30 to 36 above, is not sufficient to establish, beyond a reasonable doubt, that the respondent had the intent necessary to be found guilty under either s. 433(a) or s. 434. In R. v. Martineau, 1990 CanLII 80 (S.C.C.), [1990] 2 S.C.R. 633, Lamer C.J. commented on the necessity for the mens rea to reflect the particular nature of the crime of murder. I am of the view that the context of his comment would indicate that the principle also applied to arson. At page 645-646 he wrote:
The rationale underlying the principle that subjective foresight of death is required before a person is labelled and punished as a murderer is linked to the more general principle that criminal liability for a particular result is not justified except where the actor possesses a culpable mental state in respect of that result: see R. v. Bernard, 1988 CanLII 22 (S.C.C.), [1988] 2 S.C.R. 833, per McIntyre J., and R. v. Buzzanga and Durocher reflex, (1979), 49 C.C.C. (2d) 369 (Ont. C.A.), per Martin J.A. …… The essential role of requiring subjective foresight of death in the context of murder is to maintain a proportionality between the stigma and punishment attached to a murder conviction and the moral blameworthiness of the offender.
[Emphasis added.]
[44] To summarize, there is no evidence to support a conclusion that the respondent was aware that her intended conduct of burning a hole in the chip bag could bring about the “damage by fire to property, namely: Marie’s Mini Mart”, and that she nevertheless persisted in applying the cigarette lighter to the bag of chips, despite the risk. The evidence of the respondent herself is explicit, that she anticipated only that a hole would be burned in the bag. Neither can it be said that the evidence is sufficient to prove, beyond a reasonable doubt, that the respondent recklessly caused the damage by fire to Marie’s Mini Mart by walking out of the store knowing there was fire on other bags of chips, and knowing that the probable consequence of which would be damage by fire to Marie’s Mini Mart. Her evidence is that she attempted to put the fire out and thought she had put it out, and that when she left the store, she “thought the fire was completely put out”. While, had I been the trial judge, I may not have believed her for the reasons noted above, I would still have acquitted her on the arson charges, as the trial judge did. On the principles set forth by Cory J., in R. v. W. (D.), 1991 CanLII 93 (S.C.C.), [1991] 1 S.C.R. 742, the inability to find proof of guilt, beyond a reasonable doubt, from the remaining evidence, would preclude conviction, notwithstanding my disbelieving the respondent.
[45] Although he did not explain very well his assessment of the evidence, application of the law, or the basis for his findings, I am unable to conclude that the trial judge erred in acquitting the respondent of both the charge under s. 433(a) and the charge under s. 434 of the Criminal Code.
Issue Three: Did the trial judge properly convict the respondent for mischief contrary to s. 430(1)(a)?
[46] The respondent submits that the trial judge “was alert to the evidence and did not misdirect himself on the law, therefore the conviction under s. 430 was not unreasonable”. The Crown, in its factum, has not expressed a position as to the validity of the conviction of the respondent for breach of the provisions of s. 430, in the event that this Court were to find, as it does, that the trial judge did not err in acquitting the respondent in respect of the charges under both s. 433(a) or s. 434. Technically, therefore, it can be said that the matter is not in issue, and the Court does not propose to review the propriety of that conclusion. However, while conviction for a lesser offence under s. 430 may be appropriate in the circumstances, conviction under s-s. (1)(a) of s. 430 is not. It would not, therefore, be appropriate for the Court to affirm it.
[47] The provisions of s. 430(1)(a), for breach of which the trial judge convicted the respondent, reads as follows:
430. (1) Every one commits mischief who wilfully
(a) destroys or damages property;
What constitutes wilfulness, for purposes of s. 430(1)(a) is defined in s. 429(1) of the Criminal Code. That section reads as follows:
429. (1) Every one who causes the occurrence of an event by doing an act or by omitting to do an act that it is his duty to do, knowing that the act or omission will probably cause the occurrence of the event and being reckless whether the event occurs or not, shall be deemed, for the purposes of this Part, “wilfully” to have caused the occurrence of the event.
[48] The same reasoning that resulted in the conclusion that the respondent could not be convicted of an offence under either s. 433 or s. 434 would prevent the respondent from being convicted of an offence under s. 430(1)(a), in relation to Marie’s Mini Mart, the property that is the subject-matter of the indictment. It has been found that the evidence does not support a conclusion that the respondent knew that her act would “probably cause the occurrence” of the fire damage to Marie’s Mini Mart. Accordingly, it cannot be concluded that she wilfully destroyed or damaged that property.
[49] Undoubtedly, conviction under s. 430(1)(a) would be proper if the respondent had been charged with damaging the bag of chips. The charges laid against the respondent were in respect of Marie’s Mini Mart. The evidence establishes that she did indeed cause very significant damage to Marie’s Mini Mart. The lesser charge for which she is convicted should be the charge that the evidence supports. On reading the whole of s. 430 I am of the view that, instead of convicting the respondent of the lesser offence under s. 430(1)(a), the trial judge ought to have convicted the respondent of the lesser offence specified in s. 430(5.1)(a). That section reads as follows:
430 (5.1) Every one who wilfully does an act or wilfully omits to do an act that it is his duty to do, if that act or omission is likely to constitute mischief causing actual danger to life, or to constitute mischief in relation to property or data,
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years;
[Emphasis added.]
[50] The evidence clearly establishes that the respondent wilfully set fire to the bag of chips. The intention to do that has been proven on the evidence of the respondent herself. It is also proven on the evidence of K. R.. There is little doubt, from all of the remainder of the evidence, that her wilful act of applying open flame to the bag of chips, and then walking behind the rack where she could not control what was happening, was likely “to constitute mischief in relation to property”, namely, Marie’s Mini Mart. The mens rea for that offence is established on the objective standard. Whether or not the wilful act of the respondent, in applying flame to a chip bag while it is on a rack with other bags of chips, and leaving it unattended for some moments, is likely to cause damage, is not, in any manner, related to the state of mind of the respondent. Likelihood is judged on the basis of perception by a reasonable person. Any reasonable person, would perceive that damage to property is a likely consequence of applying flame to a bag of chips in the circumstances in which the respondent did so. The mens rea required by the statutory provision is, therefore, established.
[51] Bearing in mind the presence of other persons in the building, and the respondent’s awareness of that presence, it would not be unreasonable to conclude that her wilful act was likely “to constitute mischief causing actual danger to life”, although it is not strictly necessary to make that finding in order to conclude that the respondent is guilty of the lesser included offence of mischief contrary to s. 430(5.1)(a). Making that finding, which I do, may have relevance in the determination of the punishment that is appropriate.
[52] For those reasons, the conviction of the respondent for an offence contrary to s. 430(1)(a) should be set aside, and in its place there should be substituted a conviction for breach of s. 430(5.1)(a). As the potential punishment for an offence under s. 430(5.1)(a) is significantly more severe than the punishment for conviction of an offence under s. 430(1)(a), it would not be appropriate for the Court to simply affirm the punishment imposed by the trial judge. The matter should, therefore, be referred back to the trial judge for determination of whether the same or a different punishment ought to be imposed.
Conclusion
[53] Accordingly, the appeal with respect to the acquittal of the respondent of the charges under ss. 433(a) and 434 is dismissed; the conviction of the respondent under s. 430(1)(a) is set aside and in its place a conviction under s. 430(5.1)(a) is entered; the sentence imposed for the conviction under s. 430(1)(a) is set aside; and the matter is referred back to the trial judge for determination of the punishment appropriate for the conviction for an offence under s. 430(5.1)(a).
C.K. Wells, C.J.N.
I Concur:
J.W. Mahoney, J.A.
I Concur:
W.W. Marshall, J.A.
[1] R. v. Gossett, 1993 CanLII 62 (S.C.C.), [1993] 3 S.C.R. 76, R. v. Finlay, 1993 CanLII 63 (S.C.C.), [1993] 3 S.C.R. 103 and R. v. Naglik, 1993 CanLII 64 (S.C.C.), [1993] 3 S.C.R. 122.
