Arson (Offence)

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Arson
s. 433, 434, and 436 of the Crim. Code
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Judicial Release Only
Indictable Dispositions
Avail. Disp. Discharge (730)*

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)*

(* varies)
Minimum None
Maximum 5 years incarceration (negl.), 14 years incarceration (prop.), Life (disreg.)
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to arson are found in Part XI of the Criminal Code relating to "Wilful and Forbidden Acts in Respect of Certain Property".

Pleadings

Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
s. 433 [arson, disregard for life]
s. 434 [arson, damage to property]
s. 435 [arson, fraud], and
s. 436 [arson, negligence]
Indictable Offence(s) N/A Yes

Offences under s. 433, 434, 435, and 436 are straight indictable. There is a Defence election of Court under s. 536(2).

Section 727 notice prior to plea is required if Crown is relying upon increased duration on a subsequent s. 109 weapons prohibition order.

Release

Offence(s) Attendance Notice
Without Arrest

s. 496
Summons
Without Arrest
s. 497
Release By
Arresting Officer
On Attendance Notice
s. 497
Release By
Officer-in-Charge
On a Promise to Appear
Undertaking or Recognizance
s. 498
Release By
a Judge or Justice
on a PTA, Undertaking or Recog.

s. 515
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 433, 434, and 435 X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png
s. 436 X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 433, 434, and 435, the accused cannot be released by police under s. 497 or 498 and so must be held by police when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by an order of a judge or justice under s. 515. A youth will be subject to a maximum penalty of 3 years under s. 42(15) of the YCJA and can be given an attendance notice without arrest under s. 496 or a summons and if arrested, can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. The youth can also be released by a justice under s. 515.


When charged under s. 436, the accused cannot be given an attendance notice or a summons without arrest, nor can he be released by an arresting officer. He can be released by an officer-in-charge under s. 498 on a promise to appear or recognizance. He can also be released by a justice under s. 515. A youth will be subject to a maximum penalty of 3 years under s. 42(15) of the YCJA and can be given an attendance notice without arrest under s. 496 or a summons and if arrested, can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. The youth can also be released by a justice under s. 515.

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

A peace officer who charges a person under s. 433, 434, 435, or 436 of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans
For all offences there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offences under s. 433, 434, 435 and 436 are designated offences eligible for wiretap under s. 183.

Offences under s. 433, 434, 435 and 436 are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Arson — disregard for human life
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.

R.S., 1985, c. C-46, s. 433; 1990, c. 15, s. 1.


CCC

Arson — damage to property
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.
R.S., 1985, c. C-46, s. 434; 1990, c. 15, s. 1.


CCC

Arson — own property
434.1 Every person who intentionally or recklessly causes damage by fire or explosion to property that is owned, in whole or in part, by that person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years, where the fire or explosion seriously threatens the health, safety or property of another person.
1990, c. 15, s. 1.


CCC

Arson for fraudulent purpose
435 (1) Every person who, with intent to defraud any other person, causes damage by fire or explosion to property, whether or not that person owns, in whole or in part, the property, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
Holder or beneficiary of fire insurance policy
(2) Where a person is charged with an offence under subsection (1), the fact that the person was the holder of or was named as a beneficiary under a policy of fire insurance relating to the property in respect of which the offence is alleged to have been committed is a fact from which intent to defraud may be inferred by the court.
R.S., 1985, c. C-46, s. 435; 1990, c. 15, s. 1.


CCC

Arson by negligence
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.
Non-compliance with prevention laws
(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.
R.S., 1985, c. C-46, s. 436; 1990, c. 15, s. 1.


CCC

Proof of the Offence

Proving Arson — disregard for human life under s. 433 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit did anything;
  5. the prohibited conduct was done "intentionally or recklessly";
  6. the prohibited conduct caused "damage by fire or explosion to property"; and
  7. the culprit either:
    1. knew or was reckless with respect to whether the property was inhabited or occupied; or
    2. the fire or explosion causes bodily harm to another person.

Proving Arson — damage to property under s. 434 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit did anything;
  5. the prohibited conduct was done "intentionally or recklessly";
  6. the prohibited conduct caused "damage by fire or explosion to property"; and
  7. the property was "not wholly owned" by the culprit.

Proving Arson — fraudulent purpose under s. 435 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit did anything;
  5. the prohibited conduct was done "with intent to defraud any other person"; and
  6. # the prohibited conduct caused "causes damage by fire or explosion to property".

Proving Arson by negligence under s. 436 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit does anything;
  5. the culprit owns or controls a property;
  6. there was 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";
  7. the prohibited act caused a fire or explosion in the property;
  8. the fire or explosion caused bodily harm to another or damage property.

Interpretation of the Offence

Mens Rea
Section 434 arson is a general intent offence.[1]

The mens rea requirements does not include the need to prove a subjective foresight of the consequences of the act of starting the fire.[2] However, the crown does need to prove the "probable consequences" of starting the fire was known to the accused.[3] The minimal mens rea standard is one of recklessness.[4]

Causation
It is often expected that Crown expert evidence will be required to establish the cause of the fire as being from the accused.[5]

Evidence
Most cases of arson are circumstantial and so the "the circumstances must be sufficient to exclude every reasonable hypothesis other than a wilful and intentional burning in order to rebut the presumption that the burning was of accidental or natural origin."[6]

It is not always necessary to establish an incendiary source of the fire. Circumstantial evidence such as motive, opportunity, financial difficulty, possibility of gain, inculpatory utterances and other inculpatory circumstances, may be used to make the case.[7]

  1. R v Tatton, 2014 ONCA 273 (CanLII), at para 76
  2. R v Peters, 1991 CanLII 257 (BC C.A.)
  3. R v S. D. D., 2002 NFCA 18 (CanLII)
    c.f. R v Buttar, 1986 CanLII 1163 (BCCA)
  4. R v Brain, 2003 BCCA 70 (CanLII)
    R v Venn, 1991 CanLII 914 (BCSC)
  5. e.g. R v Eng, 1996 CanLII 1598 (BC SC)
  6. R v Monteleone 1987 CanLII 16 (SCC), [1987] 2 SCR154
    See also R v Jonkman, 2012 SKQB 511 (CanLII)
  7. R v Monteleone
    R v Jonkman, at paras 90-94

Expert Evidence

When weighing the evidence of an arson expert, the Court should consider:[1]

  • whether the expert visited the scene of the fire
  • whether he was present in court for relevant eyewitness evidence
  • whether the defence expert had a flawed understanding of the Crown expert evidence
  • the plausibility of the alternative explanations of the fire
  1. R v Vieira, 2005 CanLII 41367 (ON CA)
    E.g. See R v Jonkman, 2012 SKQB 511 (CanLII)

Defences

The statutory defence of duress is excluded by s. 17 from applying to offences of arson.

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt
For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence

Maximum Penalties

Offence(s) Crown
Election
Maximum Penalty
s. 433 [arson, disregard for life] N/A life in custody
s. 434 [arson, damage to property] N/A 14 years custody
s. 435 [arson, fraud] N/A 10 years custody
s. 436 [arson, negligence] N/A 5 years custody

Offences under s. 433, 434 and 436 are straight indictable. The maximum penalty is life under s. 433 [disregard for life], 14 years incarceration under s. 434, 10 years incarceration under s. 435 [fraudulent purpose] and 5 years incarceration under s. 436 [negligence].

Minimum Penalties
These offences have no mandatory minimum penalties.

Available Dispositions

Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 433 N/A X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png
s. 434, 436 N/A OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 435 N/A OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

For offences under s. 434 [damage to property] and 436 [negligence], all dispositions are available. The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

If convicted under s. 433 [disregard for life] a discharge is not available under s. 730(1) as it is "an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life".

Offences under s. 433 [disregard for life] are ineligible for a conditional sentence order under s. 742.1(c), when prosecuted by indictment, as the maximum period of incarceration is 14 years or life.

Offences under s. 435 [fraudulent purpose] are ineligible for a conditional sentence order, when prosecuted by indictment, as the offence is enumerated as ineligible under s. 742.1(f).

Conditional Sentences
The general gravity of the offence is usually serious enough to find that conditional sentences to be inappropriate.[1]

Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.

  1. R v Mirzahkalili, 2009 ONCA 905 (CanLII)
    R v Bos, 2016 ONCA 443 (CanLII) at para 127

Principles

Gravity
There are four categories of arson offences: [1]

  1. Mental illness (e.g. pyromania)
  2. Insurance fraud
  3. Revenge
  4. Vandalism / random mischief

Those with motivation of revenge or financial gain are the most morally blameworthy.[2]

Dispositions
Not every instance of arson under s. 434 constitutes a SPIO. It must be determined on the facts. [3]

It is not "uncommon" to order lengthy periods of probation as part of the sentencing where there are concerns of rehabilitation and protection of the public. [4]

  1. See Ruby, Sentencing (5th Ed) at 744 to 780
  2. R v Fournier, 2002 NBCA 71 (CanLII), [2002] 173 CCC (3d) 566 at 25 (NBCA)
    R v Fewer [2004] N.J. No. 433(*no link) at para 37
  3. R v C.P.M., 2009 ABPC 58 (CanLII) at para 30
  4. R v Keber, 2005 BCCA 543 (CanLII) at para 7

Factors

It is not a mitigating factor that it was good luck that no one was hurt or killed in relation to an offence under s. 433(a).[1]

  1. R v KH, (1994) 146 NBR (2d) 372 (NBCA) at para 6
    R v Morningstar, 2017 NBQB 7 (CanLII) at para 32

Ranges

see also: Arson (Sentencing Cases)

In British Columbia, the range of sentence for arsons is between 9 months and 3 years.[1]

In New Brunswick and Newfoundland, it has been stated that the sentence for arson with disregard for human life will "rarely be for a period of less than two years".[2]

  1. R v MacKendrick [2007] BCJ No. 306, 2007 BCPC 35 (CanLII) at para 43
    R v Keber, 2005 BCCA 543 (CanLII), [2005] BCJ No. 2475(BCCA)
    R v Shore (1999), 1999 BCCA 227 (CanLII), W.C.B. (2d) 99(BCCA)
    R v Allard, 1999 BCCA 481 (CanLII), [1999] BCJ No. 1912 (BCCA)
  2. R v Combdon, 2008 NLTD 71 (CanLII) at para 44
    R v Morningstar, 2017 NBQB 7 (CanLII) at para 34

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

Order Conviction Description
DNA Orders s. 433, 434, 434.1, 435, and 436
Weapons Prohibition Orders s. 433, 434, and 436
  • For offences under s. 433, 434, and 436 that are enumerated under s. 109(b) or (c), the prohibition order is mandatory regardless of election. The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive"The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive".
      • Duration (first offence): The Order prohibiting to "firearms" (other than a prohibited firearm or restricted firearm) and "crossbow, restricted weapon, ammunition and explosive substance" is for not less than 10 years starting at release from custody or at sentencing where custody is not ordered. The Order prohibiting "prohibited firearm, restricted firearm, prohibited weapon, prohibited device" is for life.
      • Duration (subsequent s. 109 offence): The duration must be life for all enumerated weapons and firearms. Notice of increased penalty under s. 727 required.
Delayed Parole Order s. 433, 434.1, and 436
  • Periods of imprisonment of 2 years or more for convictions under s. 433, 434.1 or 436 are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".

General Sentencing Orders

Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay and the minimum amounts are smaller (15%, $50, or $100).

General Forfeiture Orders

Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(!) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

See Also

References

Related