Arson Case 3 | Toronto Criminal Lawyer - Alexander Ejsmont

C17210

COURT OF APPEAL FOR ONTARIO

MORDEN A.C.J.O., CATZMAN and ABELLA JJ.A.

B E T W E E N : )

)

HER MAJESTY THE QUEEN ) Mark J. Sandler

) for the appellant

Respondent )

)

-and- )

) Milan Rupic

RAWL HARRICHARAN ) for the respondent

)

Applicant/Appellant )

) Heard: March 1, 1995

ABELLA J.A.:

The primary issue in this appeal is the interpretation of s.436(1) of the Criminal Code. Section 436 states:

436. (1) Every person who owns, in whole or in part, or controls property is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years where, as a result of a marked departure from the standard of care that a reasonably prudent person would use to prevent or control the spread of fires or to prevent explosions, that person is a cause of a fire or explosion in that property that causes bodily harm to another person or damage to property.

(2) Where a person is charged with an offence under subsection (1), the fact that the person has failed to comply with any law respecting the prevention or control of fires or explosions in the property is a fact from which a marked departure from the standard of care referred to in that subsection may be inferred by the court.

The Facts

On April 30, 1992, at the end of a two-and-a-half weeks’ vacation and on the day he was to return to work, the then 38-year-old appellant, Rawl Harricharan, was awakened in his home at 4:00 a.m. by a loud bang. He ran to a window and saw smoke and flames coming through the garage, then rushed to the kitchen phone to call for help. His home, located in East Gwillimbury, is not in an area in which ‘911′ is available as an emergency telephone number. In his newly but incompletely renovated kitchen, the appellant looked for, but could not find, the card containing the applicable seven-digit emergency number. Because the kitchen was attached to the garage, it started to fill up with smoke. The appellant ran back upstairs to the bedrooms, collected some clothing, put them in a suitcase and boxes, threw them through the window, and jumped out. He put the bags in the barn, which was about one hundred feet from the house.

He decided to try to get more items from the burning house, so he used a ladder from the barn to climb back into the house through the window he had jumped out of. This time he collected important personal papers, a framed photograph, a porcelain doll belonging to his daughter, and some more clothing. When the smoke started to enter the bedroom, he climbed out of the window and walked around the yard a few more times.

The trial judge found that the appellant was, at this point,

… totally out of his mind, running around getting stuff. He was confused, annoyed and mad. After he had taken all the stuff to the barn he was so tired, he just collapsed right there. He just lay there until he heard the fire trucks arrive …

The house is in a rural area on a gravel road. The appellant’s nearest neighbour lived “a five minute run” away. At 5:30 a.m., when she was driving to work, the neighbour noticed that the appellant’s house was in flames, and that the roof was burned out. She called the fire department from her father’s house in nearby Queensville. By the time the fire trucks arrived, only the brick walls of the house remained. The barn and a small shed were untouched by the fire, but the two vehicles in the garage, a 1990 Dodge Caravan and a small tractor, were completely destroyed. No cause of the fire was ever determined.

The appellant and his wife had purchased their home for $80,000 before their marriage eleven years prior to the fire. The appellant has worked for Grand & Toy since he arrived in Canada from Trinidad nineteen years earlier, and is a store manager. His wife is a secretary for the Metro Licensing Commission. Both worked in Toronto. The trial judge found that the appellant had always been “a hard worker. Very loyal and trustworthy.”

Over the years, the appellant poured more than $100,000 into upgrading the house, including the recent installation of a new floor and kitchen, with the result that the home’s value had increased to over $300,000. The appellant did much of the work himself, and had, in fact, just spent his two-and-a-half weeks’ holiday renovating the house while his wife and 9-year-old daughter were visiting his wife’s widowed father in Toronto. It was the appellant’s hope that the increased value of his home would be sufficient to serve as collateral for the purchase of his own store, as part of Grand & Toy’s new franchising operations. As the trial judge noted, because of the fire “that chance has probably evaporated.”

On the morning of the fire, the appellant was extremely co-operative with the police when they arrived at around 6:00 a.m. In the course of the next few hours, he gave statements, including a video-taped statement, to the police, and a written statement to an independent insurance adjuster retained by his insurance company. These statements, including statements he made following his arrest, were later admitted at his trial as being voluntary. The appellant did not testify.

On July 12, 1992, the appellant was charged in an information alleging that “[he] unlawfully did, as a result of a marked departure from the standard of care that a reasonably prudent person would use to prevent or control the spread of fires, cause a fire in a dwelling house owned by the said Rawl HARRICHARAN, situate at 4185 Holborn Road, which fire did damage [his] property contrary to s.436(1) Criminal Code of Canada.”

The Trial

The trial judge expressed sympathy for the appellant and acknowledged that he and his family were the only victims of the crime. The reasons for judgment open with the observation that “[n]o one can be unmoved by the disaster which has befallen Rawl Harricharan and his family.” In addition, the trial judge noted that the appellant had also “suffered some recent misfortunes, both in his personal life and his business,” including the theft of his Russian Wolfhound; two break-ins at the Grand & Toy store he managed; a burst pipe causing flooding at the store; and a break-in at his home involving the theft of his passport, immigration papers, and some of his wife’s jewellery.

The trial judge, however, found him guilty of the offence because, in his view, s.436(1) imposed a duty on the appellant to stop the spread of the fire. By choosing to protect personal possessions rather than running to the neighbour’s house to phone the fire department, he violated that duty. He found the appellant’s initial attempt to contact the fire department beyond reproach:

… As soon as he realized there was a fire, what did he do? He ran to the phone in the kitchen to call the authorities. He could not find the Emergency Numbers. No one can fault him for that. I would not fault him for not calling the telephone operator because smoke was coming into the kitchen. He ran back and gathered clothing and tossed them out and jumped out within five minutes.

However, the trial judge then observed that “Thereafter his actions are a marked departure from the standard of a reasonably prudent person.” He found culpable the appellant’s decision to attempt to salvage his family’s personal items rather than running to the neighbour’s house to call the fire department:

If he had gone immediately to his neighbour, the truck may have been there within half an hour of the bang …

An expert on fire causes and damage was called by the Crown, but he was unable to identify the cause of the fire. He was not asked by the Crown, nor was there any other evidence about whether the appellant’s conduct caused something which would not otherwise have occurred, such as a fire or its spread.

A psychiatrist called as an expert witness by the defence “readily confirmed,” said the trial judge, “that the fire was a traumatic event for Mr. Harricharan,” and that “individuals are highly variable in their response to traumatic events.” While the psychiatrist did not interview the appellant, he responded affirmatively to the following question from the appellant’s counsel:

… Imagine, if you would, a man in his own home being awoken while asleep to a big bang. It sounded like an explosion. Upon awakening, looking outside and seeing black smoke coming from the garage area and fire coming from the roof and then running to the kitchen to use the phone and seeing smoke come through the kitchen and then shortly thereafter, seeing half of his house engulfed in flames. Could you indicate whether or not you could venture an opinion as to whether or not that would constitute a traumatic or stressful life event?

A. Yes, it would be my view that that would constitute a traumatic event or a stressful event.

The trial judge reiterated the purpose of the section, as he had when dismissing an earlier challenge by the defence to its constitutionality, in the following way:

What s.436 seeks to prohibit is negligent use or management of one’s property or property of which one has control as a result of which negligent use or negligent management a fire or explosion may occur causing bodily harm to another person or damage to property. The section imposes a duty on owners and controllers of property not to cause a fire or explosion in their property by doing anything that a reasonably prudent person would not do or by failing to do anything that a reasonably prudent person would do, to prevent or control the spread of fires or to prevent explosions in their property. The legislation is aimed at the morally irresponsible owner or controller of property rather than the morally innocent owner or controller of property. To escape liability an accused must prove on a balance of probabilities that he used reasonable care to prevent or control the spread of fires or to prevent explosions.

There was no burden on the Crown, the trial judge found, to establish that the fire would not have spread even if the appellant had run to his neighbour’s house, because the “section imposes a duty which he had to carry out short of his proving incapacity.” In the words of the trial judge:

… If Mr. Harricharan in jumping through the window on the first occasion had fallen and broken his ankles or his legs so that all he could do was to crawl away in agony, clearly he would not have been able to go for help. But he was suffering neither a mental nor a physical incapacity. The fact that he lay down in exhaustion after removing the bags is of no help to him because long before that stage he should have gone for help.

There will be a finding of guilt.

The appellant was given a conditional discharge and placed on probation for twelve months with terms including 72 hours of community service and the requirement:

… to attend for some counselling which you may well require as a result of this tragedy you and your family have undergone; to attend for counselling as directed by your probation officer with regard to any emotional distress you may be experiencing.

The trial judge rejected the suggestion that the appellant had anything to do with causing the fire. But he relied on the analyses of McLachlin J. in R. v. Creighton 1993 CanLII 61 (S.C.C.), (1993), 83 C.C.C. (3d) 346 (S.C.C.) and R. v. Gosset 1993 CanLII 62 (S.C.C.), (1993), 83 C.C.C. (3d) 494 (S.C.C.) for the proposition that the relevant question apposite to mens rea in cases involving objective foresight was whether the accused was capable of appreciating the risk, had he, as a reasonable person, directed his mind to it. He therefore concluded beyond a reasonable doubt that the appellant violated a duty imposed by the section to stop the spread of the fire, inasmuch as his actions in going back into the burning house rather than running to the neighbour’s house for help represented a “marked departure from the standard of a reasonably prudent person.”

Analysis

The appellant relied on a number of grounds of appeal, the first being that the trial judge erred in his interpretation of s.436(1) of the Criminal Code. In my view, this submission is correct and is dispositive of the appeal. The appellant’s position can be summarized as follows:

a) On a strict reading of s.436(1), there is no offence unless the accused’s behaviour was a cause of a fire or explosion. There was no evidence as to the cause of the fire. Indeed, the trial judge, in responding to defence counsel’s statement that there were “subliminal overtones” that the appellant had set the fire, stated in his reasons that the appellant could “rest assured that the court does not so view the evidence.” In his submission, nothing in the wording of s.436(1) permits the inference that it is also an offence if the behaviour was a cause of the spread of the fire. Accordingly, the trial judge was obliged to acquit the accused.

(b) In the alternative, even if the section should be interpreted so as to include the words “or the spread of a fire,” it must nonetheless be proven that the marked departure was a cause of the spread which in turn caused harm or damage. There was no evidence that the appellant’s conduct caused any such spread. The trial judge had erroneously accepted the Crown’s submission that there was no burden on him to establish any connection between the spread of the fire and the appellant not going to his neighbour’s house for help. The resulting absence of any evidence or finding of a causal link between the appellant’s behaviour, the spread of the fire, and the damage, means that there was no basis for a conviction under the section.

In R. v. McIntosh (a decision of the S.C.C., released February 23, 1995), Chief Justice Lamer suggested the following springboard to the interpretation of a penal provision (at p.8):

… I take as my starting point the proposition that where no ambiguity arises on the face of a statutory provision, then its clear words should be given effect.

The “clear words” are presumed to reflect legislative intention. An examination of the legislative history of the provision may assist in revealing a legislative intention which in turn may assist in interpreting the words of the provision. If the language of the provision is ambiguous, any such ambiguity must be interpreted “in the manner most favourable to accused persons” (at pp.17-18).

The issue in McIntosh was whether s.34(2) of the Criminal Code, which outlines justificatory limits for self defence, should be interpreted to include the words “without having provoked the assault” which appear in s.34(1). In deciding that there was no basis for the interpretive inclusion of those words, Chief Justice Lamer made a number of observations apposite to the issues in this appeal (at pp.13, 18 and 15):

The Crown is asking this Court to read words into s.34(2) which are simply not there. In my view, to do so would be tantamount to amending s.34(2), which is a legislative and not a judicial function.

… we can hardly sustain such a presumption [that everyone know the law] if courts adopt interpretations of penal provisions which rely on the reading-in of words which do not appear on the face of the provisions.

…

[The section], on its face, is available to the [accused]. It was … an error for the trial judge to [interpret] the provision in order to preclude [the accused] from relying on it.

The words of s.436(1) state that:

… Every person who owns … or controls property is guilty of an indictable offence where, as a result of a marked departure from the standard of care that a reasonably prudent person would use to prevent or control the spread of fires or to prevent explosions, that person is a cause of a fire or explosion in that property that causes bodily harm … or damage.

The two phrases which trigger culpability are:

(i) “as a result of a marked departure from the standard of care …”; and

(ii) “that person is a cause of a fire or explosion … that causes bodily harm … or damage to property.”

There is, in my view, only one way to interpret the relationship between these two phrases in their ordinary grammatical sense, and that is to conclude that there can be a finding of guilt only when a person’s “marked departure” is a cause of the fire (or of the fire spreading), or of an explosion which in turn causes bodily harm or damage.

This interpretation is reinforced by examining the statutory history of s.436. Every statutory antecedent of s.436 required proof of a connection between the breach of the standard of care and the fire. In the 1919 and 1927 amendments to the Criminal Code, the provision stated that everyone was guilty of an indictable offence who “by negligence causes any fire …” (An Act to amend the Criminal Code respecting prevention of Fire, S.C. 1919, c. 15, s.515 (1A) and Criminal Code, R.S.C. 1927, c.36, s.515). Moreover, a person owning or controlling property was deemed to have caused the fire through negligence if a jury found the fire would not have occurred if that person had complied with the requirements of fire prevention laws. The 1953-54 amendments also made it an offence for everyone who “causes a fire” wilfully or “by violating a law in force in the place where the fire occurs” (Criminal Code, 1953-4, c.51, s.377).

This language was carried into the next amendment, so that a person owning or occupying property was “deemed wilfully to have caused the fire” if it was proven that the fire would not have occurred had the person complied with fire prevention laws (Criminal Code, R.S.C. 1985, c. C.46, s.392). None of the predecessor provisions uses the phrase “spread of a fire.”

In addition to this historical review, which confirms a legislative intention that there be a causal link between the breach of the standard of care and the fire, it is worth noting that this provision, found in a section of the Criminal Code called “Arson and Other Fires,” is headed by the marginal note “Arson by Negligence.” While “marginal notes are not conclusive support in interpretation,” they may nonetheless be of some limited use. (See McLachlin J. in McIntosh, at p.11 citing Wilson J. in R. v. Wigglesworth, 1987 CanLII 41 (S.C.C.), [1987] 2 S.C.R. 541 at 558.) Because the offence of arson requires the intentional or reckless causing of damage by fire or explosion (s.433 of the Criminal Code), I find some further support in the marginal note’s use of the word “Arson” for the proposition that there must be some proven connection between an accused’s conduct, the cause of a fire or its spread, and the harm or damage it causes.

The words “spread of fires” do not appear in the provision except as part of what defines the “marked departure.” The standard of care from which an accused’s conduct must represent a marked departure is one a reasonably prudent person would use to prevent or control the spread of fires or prevent explosions. That marked departure must in turn have been a cause of a fire or explosion, not a spread of a fire. The inclusion of the words “spread of fires” as part of what constitutes a breach of the standard of care does not, however, mean that Parliament also intended that they be read into the definition of what that breach causes. This interpretation, like McIntosh, involves reading in words “which are simply not there,” and whose deemed inclusion would preclude the appellant from relying on the face of the provision. Had Parliament intended such a result, it could have done so very easily. But even if it is appropriate to read the words into the phrase, there must still be a connection between the marked departure, the spread, and the resulting damage.

In my view, the need for a causal link in s.436(1) is clear from an ordinary, grammatical reading of the provision. But if one sees ambiguity in s.436(1), I would adopt “the overriding principle governing the interpretation of penal provisions … that ambiguity should be resolved in a manner most favourable to accused persons” (McIntosh at p.17, per Chief Justice Lamer. See also his concurring opinion in R. v. Abbas reflex, (1984), 42 C.R. (3d) 243 at 245-46 where he applies the same principle in interpreting s.392, the direct statutory ancestor to s.436). I would accordingly resolve any ambiguity by so interpreting the provision that a causal connection must be proven between the breach of the requisite standard of care, the fire (or its spread) or explosion, and the resulting harm or damage.

Two of the key elements of the actus reus which the Crown must therefore prove beyond a reasonable doubt are:

a) that the accused’s behaviour represented a marked departure from the standard of care that a reasonably prudent person would use to prevent or control the spread of fires or to prevent explosions; and

b) that the culpable behaviour was a cause of a fire (or its spread), or of an explosion causing damage.

The appellant was therefore correct in his submission that the trial judge misdirected himself as to the elements of the offence, and erred when he concluded that the provision “imposed a duty upon [the appellant] to stop the spread of the fire” and that “the Crown does not have to establish that the fire would not have spread even if he had gone to his neighbour.”

There was no evidence that the appellant’s conduct was in any way a cause of the fire or of its spread, or that his conduct in trying to salvage his family’s personal possessions instead of running to his neighbour’s house for help had any effect whatever on the spread of the fire or the damage it caused. Since there was no evidence of the requisite causal connection, there ought to have been an acquittal.

In addition, although it is not necessary to decide in order to dispose of this appeal, I would add that I am far from satisfied that in these circumstances the appellant’s conduct constituted a marked departure from the conduct of a reasonably prudent person so as to justify criminal culpability.

I would allow the appeal, set aside the conviction, and substitute a verdict of acquittal.

MORDEN A.C.J.O.:

I am indebted to Abella J.A. for her complete statement of the facts of this case. The appellant’s first two grounds of appeal were stated in the alternative. First, he submitted that the trial judge erred in not holding that the prosecution had to prove that the appellant caused the fire. The point is made in the following paragraphs of the appellant’s factum:

20. This section creates the offence of arson by negligence only where a marked departure from the standard of care that a reasonable prudent person would use to prevent or control the spread of fires is shown by the prosecution to be the cause of the fire. Subsection 436(1), on its face, requires no less.

21. The evidence was clear that the Appellant’s conduct, relied upon by the trial Judge, did not cause the fire; in fact, his conduct was a reaction to the fire. Further, no cause for the fire was identified. Accordingly, the learned trial Judge was obligated to acquit the Appellant.

22. … [S]ubsection 436(1) is clear that the conduct constituting a marked departure, need cause the fire and not merely its spread.

Second, and in the alternative, the appellant submitted that, even if s.436(1) makes it an offence for accused persons to be a cause of the spread of a fire, “the trial judge did not even find that the appellant’s conduct caused the spread of the fire”. Related to this he noted the trial judge’s agreement, in his reasons for conviction, with the submission of Crown counsel “that the Crown does not have to establish that the fire would not have spread even if he had gone to his neighbour”.

In relation to the first ground of appeal, Abella J.A. has concluded:

That marked departure must in turn have been a cause of a fire or explosion, not a spread of a fire. The inclusion of the words “spread of fires” as part of what constitutes a breach of the standard of care does not, however, mean that Parliament also intended that they be read into the definition of what that breach causes.

With respect, I do not share this view. For convenience I reproduce s.436 of the Criminal Code:

This provision imposes a duty to prevent or control the spread of fires. This carries with it the clear implication that the fire may have been originally caused by some agency other than that of the accused. The act or omission which is part of the actus reus must be something that is a breach of this duty. The section provides that where, as a result of the breach of this duty on the part of the accused, the accused is “a cause” (emphasis added) of a fire in property owned or controlled by the accused which, in turn, causes bodily harm to another person or damage to property, he or she is guilty of the offence. The section is concerned with “a fire” which, through spreading, causes bodily harm or damage to property. The term “a cause” is significant. It recognizes that other “causes” may be contributing factors to the origin or spread of the fire.

The significance of “a cause of a fire” is emphasized by its contrast with the wording contained in the immediately preceding four sections (ss.433, 434, 434.1 and 435) which is “[e]very person who … causes damage by fire or explosion to property”. If Parliament had intended in s.436(1) to impose liability only where the person causes the damage by fire, as in these preceding provisions, it would not have departed from the key wording of these provisions. The syntax of s.436(1) is such that the drafter could easily have used “that person causes a fire” in place of “that person is a cause of a fire” but to do so would be to make this part of the provision inconsistent with the preceding part of the provision.

Mr. Sandler, for the appellant, submitted that there was an “internal inconsistency” in s.436(1) in that “spread of fires” is in the clause which imposes the duty but that similar wording is not in the following clause, what I would call the breach clause. He submitted that this inconsistency should be resolved against the prosecution because Parliament could have included spread of fire wording in the breach clause but did not do so.

With respect, I do not think there is an inconsistency. As I have indicated,

the sensible approach is to read the breach clause as being part of the scheme indicated by the duty clause and not as a departure from it. The accused, as a result of a breach of the duty, may be “a cause” of the spread of a fire that, in turn, causes bodily harm or damage. He is, therefore, “a cause” of a fire that causes injury or damage. I think that the intent of the provision is reasonably clear and that there is no proper basis for resort to the strict construction rule. See Driedger on the Construction of Statutes, 3rd ed., (1994) by Ruth Sullivan at pp.357-362.

The legislative history of s.436 in Bill C-53, which was enacted as S.C. 1990, c.15, s.1, is helpful on this question. In the first reading version of the bill (December 14, 1989), the duty clause in s.436(1) read “as a result of a marked departure from the standard of care that a reasonably prudent person would use to prevent fires or explosions”. In s.436(2) the wording in the middle part was “failed to comply with any law respecting the prevention of fires”. In Bill C-53, as passed by the House of Commons (May 4, 1990), the present wording appears. It expands the duty to controlling the spread of fires. I am inclined to think that “control”, alone, carries with it the idea of restraining or curbing an existing fire, but the addition of the words “the spread of” puts this beyond doubt.

In the proceedings of the Legislative Committee on Bill C-53 on April 10, 1990 the point was made by senior counsel for the Department of Justice (at p.2:16), in answer to a question why ‘control of’ or ‘control’ was added: “.. [T]here are devices for the control of fires, such as sprinkler systems, that would not be caught under the word ‘prevention’ but would be caught under ‘control’.”

As far as legislative evolution is concerned, I note that s.436’s imposition of liability for a negligent act or omission which, itself, is not an original cause of the fire which causes the bodily harm or damage does not introduce a new policy into the Criminal Code. The predecessor section, s.436 of R.S.C. 1985, c.C-46, before its repeal by S.C. 1990, c.15, s.1, through the use of a wide deeming provision in s.436(2), included within its purview the imposition of liability in these circumstances. Indeed, in that section a person could be liable in circumstances where his or her omission had nothing to do with the origin of the fire or its spread. The marked departure requirement in the current version, coupled with the requirement that the person be a cause of the spread of a fire which causes the bodily harm or damage, results in a provision that casts the net of liability more narrowly.

In conclusion, I note this point does not appear to have been considered at all at the trial. The appellant’s trial counsel (who was not Mr. Sandler), as well as Crown counsel and the trial judge, appear to have proceeded on the basis that the provision did not require the prosecution to prove that the accused was a cause of the origin of the fire. If this were so, the proceeding could have been dismissed on a motion for a directed verdict of acquittal. No motion was made.

I turn now to another aspect of the trial judge’s treatment of s.436(1). In his reasons he reviewed Crown counsel’s submissions. Part of this review included:

… On all of the evidence, he submits that Mr. Harricharan is responsible for the spreading of the fire and that the Crown does not have to prove beyond a reasonable doubt that it would not have spread if he had done something.

The trial judge gave effect to this submission:

I agree with [Crown counsel] that the Crown does not have to establish that the fire would not have spread even if he had gone to his neighbour. The section imposes a duty which he had to carry out short of his proving incapacity.

I agree with Abella J.A. that the trial judge erred in this conclusion. The section clearly requires proof of a causal connection between the accused’s breach, the resulting spread, and the injury or damage.

It is reasonable to infer that Crown counsel’s submission may have been based on the view that the evidence called could not reasonably support a finding of this causal connection. There does not appear to have been any explicit evidence on the point, as I think there reasonably should have been, probably in the form of expert opinion evidence. It may be that one could infer, from the basic circumstances, that there was a causal connection between the appellant’s breach and a consequent spread causing damage. In view of the position taken by the Crown at trial, however, I do not think that it would be fair to exercise our discretion to order a new trial under s.686(2) of the Code to enable the Crown to call new evidence or to recast its submissions on this issue.

Before concluding, I note, with great respect, what appears to me to be a substantial inconsistency in one aspect of the policy reflected in the provision under consideration, s.436(1), and that in two earlier sections, s.433 and s.434.1, which may require some attention. Under s.433 a person can be guilty of “intentionally or recklessly” causing damage by fire to his or her own property only where the person “knows that or is reckless with respect to whether the property is inhabited or occupied” or “the fire … causes bodily harm to another person.” Under s.434.1 a person is guilty of “intentionally or recklessly causing damage by fire” to his or her own property only where the fire “seriously threatens the health, safety or property of another person”. In s.436(1), as it has been read by all concerned in this case, and I think rightly, a person can be guilty of negligently being a cause of damage to his or her own property without the requirement of any qualifying circumstances or consequences. The matter of liability for damaging one’s own property is discussed by the Law Reform Commission of Canada in Working Paper 36, Damage to Property ARSON (1984) at pages 12 and 22-27 and 31-32 and Working paper 31, Damage to Property VANDALISM, at pages 18-20 and 35.

For these reasons, I agree with the disposition of this appeal proposed by Abella J.A.

CATZMAN J.A.:

I have had the benefit of reading the reasons for judgment prepared by Morden A.C.J.O. and by Abella J.A. I share:

(a) the view of Morden A.C.J.O. that s.436(1) imposes a duty to control the spread of a fire that, in turn, causes bodily harm or damage to property, even if the fire was originally caused by some agency other than that of the accused;

(b) the view of both of my colleagues that, in a prosecution under s.436(1), the Crown must prove a causal connection between the accused’s breach of duty, the resulting spread, and the bodily injury or damage to property;

(c) the views of both of my colleagues that, by reason of the trial judge’s erroneous acceptance of Crown counsel’s submission that the section required no proof of such a causal connection, the appeal should be allowed, the conviction set aside and a verdict of acquittal entered; and

(d) the view of Morden A.C.J.O. that there appears to be a substantial inconsistency, which is deserving of the legislator’s attention, between ss.433 and 434.1, on the one hand, and s.436(1), on the other.

C17210

COURT OF APPEAL FOR ONTARIO

MORDEN A.C.J.O., CATZMAN and ABELLA JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Respondent

-and-

RAWL HARRICHARAN

Applicant/Appellant

J U D G M E N T

Criminal Law

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