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.
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)
Preliminary Inquiry
s. 433 [arson, disregard for human life] Indictable Offence(s) X Mark Symbol.png OK Symbol.png OK Symbol.png (life max)
s. 434 [arson, damage to property]
s. 434.1 [arson, damage to own property]
Indictable Offence(s) X Mark Symbol.png OK Symbol.png OK Symbol.png (14 years max)
s. 435 [arson, fraud]
s. 436 [arson, negligence]
Hybrid Offence(s) X Mark Symbol.png OK Symbol.png X Mark Symbol.png (under 14 years max)

Offences under s. 433 [arson, disregard for human life], 434 [arson, damage to property], and 434.1 [arson, damage to own property] are straight indictable. There is a Defence election of Court under s. 536(2).

Offences under s. 435 [arson, fraud], and 436 [arson, negligence] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release by
Peace Officer
on Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a Release Order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 433 [arson, disregard for human life],
s. 434 [arson, damage to property], and
s. 434.1 [arson, damage to own property]
X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 435 [arson, fraud] and
s. 436 [arson, negligence]
OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 433 [arson, disregard for human life], 434 [arson, damage to property], and 434.1 [arson, damage to own property] , the accused can be given a judicial summons without arrest. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

When charged under s. 435 [arson, fraud], 436 [arson, negligence], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

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)).
Fingerprints and Photos

A peace officer who charges a person under s. 433, 434, 434.1, 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 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.

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 433 [arson, disregard for human life],
s. 434 [arson, damage to property],
s. 434.1 [arson, damage to own property] and
s. 435 [arson, fraud]
OK Symbol.png X Mark Symbol.png OK Symbol.png X Mark Symbol.png OK Symbol.png
s. 436 [arson, negligence] OK Symbol.png X Mark Symbol.png X Mark Symbol.png (under 10 years max) X Mark Symbol.png X Mark Symbol.png

Offences under s. 433, 434, 434.1, 435 and 436 are designated offences eligible for wiretap under s. 183.

Offences under s. 433, 434, 434.1, 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


Note up: 433

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


Note up: 434

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


Note up: 434.1

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

(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or
(b) an offence punishable on summary conviction.
Holder or beneficiary of fire insurance policy

(2) Where a person is charged with an offence under subsection (1) [arson, fraud], 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; 2019, c. 25, s. 163.
[annotation(s) added]

CCC


Note up: 435

Arson by negligence

436 (1) Every person who owns, in whole or in part, or controls property and who, 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, is a cause of a fire or explosion in that property that causes bodily harm to another person or damage to property is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or
(b) an offence punishable on summary conviction.
Non-compliance with prevention laws

(2) Where a person is charged with an offence under subsection (1) [arson, negligence], 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; 2019, c. 25, s. 164.
[annotation(s) added]

CCC


Note up: 436(1) and (2)

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XX of the Criminal Code.

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 — own property under s. 434.1 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 culprit causes a fire or explosion;
  6. the fire or explosion damages a thing;
  7. the thing is property owned in whole or part by the accused; and
  8. the fire or explosion threatened the health, safety or prorpety of another person.

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

For any general intent arson offences where recklessness is the minimum standard, the Crown must prove that "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."[1]

Arson, Damage to Property (434 and 434.1)

Actus Reus

Arson under s. 434 requires the proof of an act that damages property by fire.[1] Fire is "simply the mechanism by which the damage must be caused".[2]

"Damages" requires that there be physical harm or reduction in value to property.[3]

Section 434.1 requires causing damage to property by fire or explosion. It does not require that anyone be harmed or endangered.[4] All that is required is that the fire or explosion "seriously threatens the health, safety or property of another person". This will include police, firefighters and other first responders.[5]

For s. 434.1, the property must be owned in whole or in part by the accused.[6]

Mens Rea

Section 434 arson is a general intent offence.[7] It is made out if the accused intentionally or recklessly performs the illegal act that causes damage to the property.[8]

Intoxication short of automatism does not negate the mens rea.[9]

When considering mens rea, the court may consider all the circumstances, including the manner in which the fire started. This is an important but not essential consideration.[10]

The necessary mens rea under s. 434.1 is intentionally or recklessly causing damage.[11] It is not necessary that hte accuseds knew that hte fire threatened the health, safety or property of another person.[12]

The mens rea requirements does not include the need to prove a subjective foresight of the consequences of the act of starting the fire.[13] However, the crown does need to prove the "probable consequences" of starting the fire was known to the accused.[14] The minimal mens rea standard is one of recklessness.[15]

"fraudulent purpose"

For the purpose of an offence under s. 435, the requirement of fraud requires that there be "dishonesty in accord with community standards".[16]

  1. R v Tatton, 2015 SCC 33 (CanLII), per Moldaver J
  2. Tatton, ibid.
  3. R v MV, 1998 CanLII 4374 (ON CA), per Goudge JA
  4. R v Ludwig, 2018 ONCA 885 (CanLII), per Doherty JA, at para 35 ("Section 434 creates the offence of intentionally or recklessly causing damage to property by fire. The provision creates a pure property offence that contains no additional mens rea requirement. The section does not require proof that anyone was harmed or endangered by the fire. Section 434 does not, however, apply if the person causing the damage by fire wholly owns the damaged property. A person who intentionally or recklessly causes damage by fire to property that he wholly owns does not commit an offence under s. 434.")
  5. Ludwig, ibid.
  6. Ludwig, ibid.
  7. Tatton, supra
  8. Tatton, supra
  9. Tatton, supra
  10. Tatton, supra
  11. Ludwig, supra, at para 35 ("Section 434 creates the offence of intentionally or recklessly causing damage to property by fire. The provision creates a pure property offence that contains no additional mens rea requirement. The section does not require proof that anyone was harmed or endangered by the fire. Section 434 does not, however, apply if the person causing the damage by fire wholly owns the damaged property. A person who intentionally or recklessly causes damage by fire to property that he wholly owns does not commit an offence under s. 434.")
  12. R v Bastien, 2017 BCCA 210 (CanLII), per Lowry JA (3:0)
  13. R v Peters, 1991 CanLII 257 (BC C.A.), per McEachern CJ
  14. R v SDD, 2002 NFCA 18 (CanLII), per Wells CJ
    cf. R v Buttar, 1986 CanLII 1163 (BCCA), per Esson JA (2:1) (Lambert JA dissenting)
  15. R v Brain, 2003 BCCA 70 (CanLII), per Finch CJ
    R v Venn, 1991 CanLII 914 (BCSC), per Bouck J
  16. R v D(RN), 1994 CanLII 403 (BC CA), per Hollinrake JA, at para 35

Evidence

Most cases of arson are circumstantial. To support conviction, "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."[1]

It is not always necessary to establish an incendiary source of the fire. Circumstantial evidence such as motive, opportunity, financial difficulty, the possibility of gain, inculpatory utterances and other inculpatory circumstances, may be used to make the case.[2]

"property"

"Property" is defined under s. 428.

"explosive substance"

"Explosive substance" is defined by s. 2.

  1. R v Monteleone, 1987 CanLII 16 (SCC), [1987] 2 SCR 154, per McIntyre J
    See also R v Jonkman, 2012 SKQB 511 (CanLII), per Schwann J
  2. Monteleone, supra
    Jonkman, supra, at paras 90 to 94

Causation

It is often expected that Crown expert evidence will be required to establish the cause of the fire as being from the accused.[1]

Causal connection – arson by negligence

The Crown must prove there is a causal connection between (1) the breach of the standard of care, (2) the fire and its spread, and (3) the resulting harm or damage.[2]

It is not necessary that the Crown prove that the accused actions were the cause of the damage.[3]

  1. e.g. R v Eng, 1996 CanLII 1598 (BC SC), per Bouck J
  2. R v Harricharan, 1995 CanLII 445 (ON CA), per Abella JA (3:0)
  3. Harricharan, ibid., per Morden ACJ and Catzman JA

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), per Goudge JA
    E.g. See R v Jonkman, 2012 SKQB 511 (CanLII), per Schwann J

Defences

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 [Pt. XI – Wilful and Forbidden Acts in Respect of Certain Property (s. 428 to 447.1)], 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.

Interest

(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.
[annotation(s) added]

CCC


Note up: 429(1), (2) and (3)

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
Offence(s) Victim Notice
of Agreement
s. 606(4.1), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. 433, 434 and 436 -

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 human life] N/A life incarceration
s. 434 [arson, damage to property]
s. 434.1 [arson, damage to own property]
N/A 14 years incarceration
s. 435 [arson, fraud] N/A 10 years incarceration
s. 436 [arson, negligence] N/A 5 years incarceration

Offences under s. 433, 434 and 436 are straight indictable. The maximum penalty is life incarceration under s. 433 [arson, disregard for human life], 14 years incarceration under s. 434 [arson, damage to property], 10 years incarceration under s. 435 [arson, fraud] and 5 years incarceration under s. 436 [arson, 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 [arson, disregard for human life] 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 [arson, damage to property], 436 [arson, negligence] 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 [arson, fraud] 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 [arson, damage to property] and 436 [arson, 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 [arson, disregard for human 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 [arson, disregard for human 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 [arson, fraud] 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), per curiam
    R v Bos, 2016 ONCA 443 (CanLII), per Tulloch JA, 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, per Larlee JA at 25 (NBCA)
    R v Fewer, [2004] N.J. No. 433(*no CanLII links) , at para 37
  3. R v CPM, 2009 ABPC 58 (CanLII), per Allen J, at para 30
  4. R v Keber, 2005 BCCA 543 (CanLII), per Rowles JA, 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)(*no CanLII links) , at para 6
    R v Morningstar, 2017 NBQB 7 (CanLII), per Walsh J, 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), per Ball J, at para 43
    R v Keber, 2005 BCCA 543 (CanLII), [2005] BCJ No. 2475(BCCA), per Rowles JA
    R v Shore (1999), 1999 BCCA 227 (CanLII), W.C.B. (2d) 99(BCCA), per Southin JA
    R v Allard, 1999 BCCA 481 (CanLII), [1999] BCJ No. 1912 (BCCA), per Finch JA
  2. R v Combdon, 2008 NLTD 71 (CanLII), per Goodridge J, at para 44
    R v Morningstar, 2017 NBQB 7 (CanLII), per Walsh J, 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, 434.1 and 436
  • On conviction under s. 433, 434, 434.1 , and 436 where "violence against a person was used, threatened or attempted", and punishable by "imprisonment for ten years or more", the weapons prohibition order is mandatory under s. 109(1)(a) or where "violence was used, threatened or attempted against" an enumerated party relating to a domestic partnership a weapons prohibition order is mandatory under s. 109(1)(a.1).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 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 discretionary 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 has smaller minimum amounts (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(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.

Record Suspensions and Pardons

Convictions under s. 433 [arson, disregard for human life], 434 [arson, damage to property], 434.1 [arson, damage to own property], 435 [arson, fraud], and 436 [arson, negligence] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

See Also

References

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