COURT OF APPEAL FOR ONTARIO
Goudge, Simmons and Tulloch JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Ashan Ravindhraraj
Appellant
Counsel:
Ashan Ravindhraraj, appearing in person
Vincenzo Rondinelli, acting as duty counsel
Susan Magotiaux, for the respondent
Heard: March 11, 2013
On appeal from the conviction entered on April 24, 2012 and the sentence imposed on July 25, 2012 by Justice Anne Marie Molloy of the Superior Court of Justice, sitting with a jury.
APPEAL BOOK ENDORSEMENT
1The appellant pleaded guilty to two counts of mischief and was tried by a judge and jury on one count of arson.
2In response to a question from the jury about causation, the trial judge instructed the jury for the first time on the included offence of attempted arson. In doing so, the trial judge described the mens rea for the included offence of attempted arson as including both actual intent and recklessness. Ultimately, the jury acquitted the appellant of arson but convicted him of attempted arson.
3On appeal, duty counsel relied on R. v. Sarrazin, 2010 ONCA 577, 259 C.C.C. (3d) 293, as establishing that the mens rea for attempted arson does not include recklessness.
4In our view, Sarrazin establishes only that the issue of whether the mens rea for offences of attempt (other than attempted murder) includes recklessness is an unsettled area of the law. That said, we note that neither Watt's Manual of Criminal Jury Instructions (Toronto: Thomson Carswell, 2005) nor Canadian Criminal Jury Instructions, 4th ed. (Vancouver: The Continuing Legal Education Society of British Columbia, 2012) refer to recklessness in the model instructions relating to attempt.
5In light of this unsettled state of the law, the trial judge ought not to have given the instruction she did in the circumstances of this case. The trial judge raised the issue of attempted arson herself and did so only after her main charge and in response to a question from the jury. In the result, defence counsel had no realistic opportunity to research the elements of the included offence or to make submissions on whether the mens rea of the included offence includes recklessness. Equally important, defence counsel had no opportunity to address this theory of liability in his closing address to the jury. Given the appellant’s conviction for attempted arson, the procedure used requires a new trial.
6In the circumstances, the appeal from the conviction for attempted arson is allowed, the conviction is set aside and a new trial is ordered.