|s. 433, 434, and 436 of the Crim. Code|
|Election / Plea|
Sup. Court w/ Jury (*)
|Types of Release||Judicial Release Only|
|Maximum||5 years incarceration (negl.), 14 years incarceration (prop.), Life (disreg.)|
Offences relating to arson are found in Part XI of the Criminal Code relating to "Wilful and Forbidden Acts in Respect of Certain Property".
|Crown Election||Defence Election|
|s. 433 [arson, disregard for life]
s. 434 [arson, damage to property]
s. 435 [arson, fraud], and
s. 436 [arson, negligence]
On Attendance Notice
On a Promise to Appear
Undertaking or Recognizance
a Judge or Justice
on a PTA, Undertaking or Recog.
|Direct to Attend |
for Fingerprints, etc.
Identification of Criminals Act
s. 2 ID Crim. Act
|s. 433, 434, and 435|
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 in custody when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by order of a judge or justice pursuant to s. 515. A young person will be subject to a maximum penalty of 3 years under s. 42(15) of the Youth Criminal Justice Act and so may be given an attendance notice or a summons without a s. 496 arrest, and if arrested, can be released by the arresting officer under s. 497 on an attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. The young person can also be released by order of a judge or 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 young person 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 an attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. The young person 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.
For all criminal or regulatory prosecutions, 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.
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.
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.
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.
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.
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.
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.
Proof of the Offence
Proving Arson — disregard for human life under s. 433 should include:
Proving Arson — damage to property under s. 434 should include:
Proving Arson — fraudulent purpose under s. 435 should include:
Proving Arson by negligence under s. 436 should include:
Interpretation of the Offence
Section 434 arson is a general intent offence.
The mens rea requirements does not include the need to prove a subjective foresight of the consequences of the act of starting the fire. However, the crown does need to prove the "probable consequences" of starting the fire was known to the accused. The minimal mens rea standard is one of recklessness.
It is often expected that Crown expert evidence will be required to establish the cause of the fire as being from the accused.
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."
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.
R v Tatton, 2014 ONCA 273 (CanLII), at para 76
- R v Peters, 1991 CanLII 257 (BC C.A.)
- R v S. D. D., 2002 NFCA 18 (CanLII)
c.f. R v Buttar, 1986 CanLII 1163 (BCCA)
R v Brain, 2003 BCCA 70 (CanLII)
R v Venn, 1991 CanLII 914 (BCSC)
- e.g. R v Eng, 1996 CanLII 1598 (BC SC)
R v Monteleone 1987 CanLII 16 (SCC),  2 SCR154
See also R v Jonkman, 2012 SKQB 511 (CanLII)
R v Monteleone
R v Jonkman, at paras 90-94
When weighing the evidence of an arson expert, the Court should consider:
- 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
The statutory defence of duress is excluded by s. 17 from applying to offences of arson.
Wilful Intent and Colour of Right
Wilfully causing event to occur
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.
Colour of right
(2) No person shall be convicted of an offence under sections 430 to 446 where he proves that he acted with legal justification or excuse and with colour of right.
(3) Where it is an offence to destroy or to damage anything,
- (a) the fact that a person has a partial interest in what is destroyed or damaged does not prevent him from being guilty of the offence if he caused the destruction or damage; and
- (b) the fact that a person has a total interest in what is destroyed or damaged does not prevent him from being guilty of the offence if he caused the destruction or damage with intent to defraud.
R.S., c. C-34, s. 386.
Participation of Third Parties
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
|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].
These offences have no mandatory minimum penalties.
s. 718.3, 787
|s. 434, 436||N/A|
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).
The general gravity of the offence is usually serious enough to find that conditional sentences to be inappropriate.
There are no statutory requirements that the sentences be consecutive.
There are four categories of arson offences: 
- Mental illness (e.g. pyromania)
- Insurance fraud
- Vandalism / random mischief
Those with motivation of revenge or financial gain are the most morally blameworthy.
Not every instance of arson under s. 434 constitutes a SPIO. It must be determined on the facts. 
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. 
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).
R v KH, (1994) 146 NBR (2d) 372 (NBCA) at para 6
R v Morningstar, 2017 NBQB 7 (CanLII) at para 32
- see also: Arson (Sentencing Cases)
In British Columbia, the range of sentence for arsons is between 9 months and 3 years.
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".
R v MacKendrick  BCJ No. 306, 2007 BCPC 35 (CanLII) at para 43
R v Keber, 2005 BCCA 543 (CanLII),  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),  BCJ No. 1912 (BCCA)
R v Combdon, 2008 NLTD 71 (CanLII) at para 44
R v Morningstar, 2017 NBQB 7 (CanLII) at para 34
Ancillary Sentencing Orders
|DNA Orders||s. 433, 434, 434.1, 435, and 436||
|Weapons Prohibition Orders||s. 433, 434, and 436||
|Delayed Parole Order||s. 433, 434.1, and 436||
General Sentencing Orders
|Non-communication order while offender in custody (s. 743.21)||any||The judge has the 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 the 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 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(1) 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.|