COURT OF APPEAL FOR ONTARIO
Goudge, van Rensburg and Pardu JJ.A.
BETWEEN
Her Majesty the Queen
Appellant
and
Paul Francis Tatton
Respondent
Randy Schwartz, for the appellant
J. Douglas Grenkie Q.C. and William J. Webber, for the respondent
Heard: January 20, 2014
On appeal from the acquittal entered on July 29, 2013, by Justice Wolfram Tausendfreund of the Superior Court of Justice, sitting without a jury.
1The Crown appeals from the acquittal of the respondent on a charge of arson. It submits that the trial judge erred in considering evidence that the respondent was intoxicated when he caused a fire at his ex-girlfriend’s house. It submits that, because arson is an offence of general intent, evidence of intoxication was inadmissible for the purpose of determining whether the respondent had the intent to commit this offence.
2For the reasons that follow, I would dismiss the appeal. In my view, the trial judge did not err in considering evidence of the respondent’s intoxication to assess whether the Crown had proven that the accused had the mental state necessary for arson.
A. FACTS
3The respondent was living in a guest room at his ex-girlfriend’s home in Brockville. He had difficulty coming to terms with the fact that their relationship had ended. On September 24, 2010, she told him that she was leaving to visit some friends in Kingston. The respondent, jealous and upset, left her a series of agitated and aggressive voice messages after she left. He drank heavily. At some point in the evening, he passed out.
4When he woke up, he decided to cook some bacon. He put some oil in a pan and placed it on the stove. He set the stove on “high”, though he testified that he thought he had set the stove on “low” or “simmer”. After turning the stove on, he went to Tim Hortons. He came back fifteen to twenty minutes later to find that the house was on fire. He called the fire department.
5The home and its contents were completely lost in the fire. Fire investigators concluded that the fire originated in the kitchen, that it had not resulted from any electrical or power failure or from any problem with the stove, that the first fuel ignited in the house was vegetable oil, and that several pieces of furniture had been turned over, toppled, moved around or broken before the fire started.
6The respondent was arrested and charged with arson contrary to s. 434 of the Criminal Code, R.S.C. 1985, c. C-46. Arson occurs when a person “intentionally or recklessly causes damage by fire or explosion” to the property of another.
B. The Trial Decision
7At trial, the respondent raised the defence of accident. The respondent argued that he did not intend or foresee the consequences of turning the stove on and leaving it unattended. There was evidence that the respondent was intoxicated when he caused the fire.
8The trial judge was satisfied beyond a reasonable doubt that the house was the property of the respondent’s ex-girlfriend, that the ignition of the oil in the frying pan caused the fire, and that the stove had been left on “high”.
9The trial judge went on to consider whether the respondent intentionally or recklessly caused the fire. He considered the defence of accident raised by the respondent at trial. He also found that the respondent was “strongly under the influence of alcohol” when he caused the fire. He noted that he was entitled to consider this fact only if arson was classified as a “specific intent” offence, stating as follows:
In my view, [whether] a charge of arson under s. 434 of the Criminal Code of Canada [is] either a general intent or a specific intent charge depends entirely on the circumstances and the fact of how the fire started. A fire might be started with a match and obvious combustible material such as paper, or gasoline. If damage then results, a charge of arson based on such facts would likely be a general intent offence. However, [where] the start of the fire is more nuanced, it may well be that the trier of fact might conclude that in such circumstances the charge of arson might be seen as a specific intent offence. The question in the latter case then becomes whether the drunkenness of the accused is such that it raised a reasonable doubt whether he or she had the necessary mental capability to connect the dots such that the actions in question would likely cause damage to property.
10The trial judge concluded that arson was a specific intent offence in the circumstances of this case, and that he could therefore consider evidence of the respondent’s intoxication. He expressed doubt that the respondent “had the ability to connect the dots that fire would be the likely outcome of his actions”, and that he would have deliberately set the fire “knowing that his own personal belongings would likely also be destroyed in the process”.
11He concluded that he was not satisfied beyond a reasonable doubt that the respondent left the stove on “high” either intentionally or recklessly. As a result, he acquitted the respondent.
C. Issues
12The Crown submits that the trial judge erred in law in two respects:
By concluding that arson was an offence of specific intent; and
By treating the question of whether arson was an offence of specific or general intent as a question of fact.
13Because the Crown requests that the acquittal be set aside and a new trial ordered, it must also demonstrate that the errors alleged can reasonably be thought to have had a material bearing on the acquittal.
14The respondent agrees that the trial judge made both of the errors alleged by the Crown, but argues that, because the trial judge’s acquittal was based on the defence of accident rather than a defence of drunkenness, these errors cannot reasonably be thought to have had a material bearing on the acquittal.
D. Analysis
(1) Did the trial judge err in categorizing arson as a specific intent offence?
15The classification of an offence as one of general or specific intent depends on the elements of that offence. I therefore begin by setting out the elements of arson, as defined in s. 434 of the Criminal Code. I then review the history of the jurisprudence on the admissibility of evidence of voluntary intoxication, which I proceed to apply to the offence at issue here.
16For the reasons that follow, I agree with the trial judge that arson is an offence of specific intent, and that he was therefore entitled to consider evidence of the respondent’s intoxication. I would therefore dismiss this ground of appeal.
(a) The elements of arson
17Section 434 of the Criminal Code provides:
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.
18I begin with the presumption that Parliament intends crimes to have a subjective fault element: R. v. A.D.H., 2013 SCC 28, 358 D.L.R. (4th) 1, at para. 23. There the Supreme Court reiterated the views of Dickson J. in R. v. Pappajohn, 1980 13 (SCC), [1980] 2 S.C.R. 120, at pp. 138-39:
There rests now, at the foundation of our system of criminal justice, the precept that a man cannot be adjudged guilty and subjected to punishment, unless the commission of the crime was voluntarily directed by a willing mind.… Parliament can, of course, by express words, create criminal offences for which a guilty intention is not an essential ingredient. Equally, mens rea is not requisite in a wide category of statutory offences which are concerned with public welfare, health and safety. Subject to these exceptions, mens rea, consisting of some positive states of mind, such as evil intention, or knowledge of the wrongfulness of the act, or reckless disregard of consequences, must be proved by the prosecution.
19That presumption is borne out by the language of s. 434, which requires that the accused have intentionally or recklessly caused damage to property by fire or explosion.
20Recklessness in the criminal law context amounts to more than civil negligence, forgetfulness or absentmindedness. As observed in R. v. Sansregret, 1985 79 (SCC), [1985] 1 S.C.R. 570, at pp. 581-82:
Negligence, the failure to take reasonable care, is a creature of the civil law and is not generally a concept having a place in determining criminal liability. Nevertheless, it is frequently confused with recklessness in the criminal sense and care should be taken to separate the two concepts. Negligence is tested by the objective standard of the reasonable man. A departure from his accustomed sober behaviour by an act or omission which reveals less than reasonable care will involve liability at civil law but forms no basis for the imposition of criminal parties. In accordance with well-established principles for the determination of criminal liability, recklessness, to form a part of the criminal mens rea, must have an element of the subjective. It is found in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and who takes the chance. It is in this sense that the term ‘recklessness’ is used in the criminal law and it is clearly distinct from the concept of civil negligence.
21In R. v. S.D.D., 2002 NFCA 18, 211 Nfld. & P.E.I.R. 157, Wells C.J.N. confirmed this application of the Sansregrettest to the offence of arson, at para. 25:
[I]t is clear that the mens rea specified by Parliament in those sections is subjective. To quote McIntyre J. in Sansregret, “recklessness, to form a part of the criminal mens rea, must have an element of the subjective.” I conclude, therefore, that absent proof of a specific intent to cause damage by fire to the property specified, an accused can only be found guilty of arson, contrary to either s. 433 or 434, upon proof that the 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.
22In addition, the physical act that causes the damage must be the voluntary act of the accused. Conviction of a criminal offence for an act which is not the voluntary act of the accused violates s. 7 of the Canadian Charter of Rights and Freedoms: R. v. Daviault, 1994 61 (SCC), [1994] 3 S.C.R. 63, at p. 103.
23To summarize, to prove that an accused committed arson under s. 434 of the Criminal Code, the Crown must prove firstly that the act causing damage by fire or explosion was the voluntary act of the accused, and secondly that the accused either intended to cause damage by fire or explosion or was reckless as to whether damage by fire or explosion would occur.
(b) The admissibility of evidence of voluntary intoxication
24Accident in the criminal law context can mean either that the actus reus was not intended, or that the consequences were unintended, that is to say the accused lacked the mens rea for the offence: R. v. Mathisen, 2008 ONCA 747, 239 C.C.C. (3d) 63, at para. 70.
25What result then, when intoxication affects the accused’s faculties, and thus may have been a factor in the incident from which the charge arises?
26I begin my analysis with R. v. George, 1960 45 (SCC), [1960] S.C.R. 871. There, the court had to consider whether evidence of intoxication could be admitted to show that the accused lacked the mental state required for assault. Fauteux J. drew a distinction between offences of “general intent” and “specific intent”, stating, at p. 877:
In considering the question of mens rea, a distinction is to be made between (i) intention as applied to acts considered in relation to their purposes and (ii) intention as applied to acts considered apart from their purposes. A general intent attending the commission of an act is, in some cases, the only intent required to constitute the crime while, in others, there must be, in addition to that general intent, a specific intent attending the purpose for the commission of the act.
27Fauteux J. concluded that while evidence of intoxication could be admitted to show that the accused lacked the mental state to commit a specific intent offence, it generally could not be admitted to show that the accused lacked the mental state to commit a general intent offence like assault.
28He concluded, at p. 879, that the accused’s drunkenness was not of a degree to negative the general intent required for assault:
Hence, the question is whether, owing to drunkenness, respondent's condition was such that he was incapable of applying force intentionally. I do not know that, short of a degree of drunkenness creating a condition tantamount to insanity, such a situation could be metaphysically conceived in an assault of the kind here involved. It is certain that, on the facts found by the trial Judge, this situation did not exist in this case.
29Ritchie J. expressed the difference between offences of general and specific intent differently, at p. 890:
In considering the question of mens rea, a distinction is to be drawn between “intention” as applied to acts done to achieve an immediate end on the one hand and acts done with the specific and ulterior motive and intention of furthering or achieving an illegal object on the other hand. Illegal acts of the former kind are done “intentionally” in the sense that they are not done by accident or through honest mistake, but acts of the latter kind are the product of preconception and are deliberate steps taken towards an illegal goal. The former acts may be the purely physical products of momentary passion, whereas the latter involve the mental process of formulating a specific intent. A man, far advanced in drink, may intentionally strike his fellow in the former sense at a time when his mind is so befogged with liquor as to be unable to formulate a specific intent in the latter sense. The offence of robbery, as defined by the Criminal Code, requires the presence of the kind of intent and purpose specified in ss. 269 and 288, but the use of the word “intentionally” in defining “common assault” in s. 230(a) of the Criminal Code is exclusively referable to the physical act of applying force to the person of another.
30The Supreme Court applied R. v. George in R. v. Leary, 1977 2 (SCC), [1978] 1 S.C.R. 29. Pigeon J., writing for the majority, concluded that rape was an offence of general intent, but at the same time indicated, at p. 60:
Even if it could be considered that there was some slight evidence of absence of intent due to impairment of the mind by drink, I would nevertheless hold in this case that there was no miscarriage of justice. It is clear that the accused deliberately chose to submit to the jury a defence of consent based on his statement to the police in which he admitted the fact of intercourse. An accused cannot very well at the same time ask the jury to believe his statement that the complainant did consent if, at the same time, he says he was so drunk as not to know what he was doing.
He went on to indicate that the defence of drunkenness advanced by the accused at trial was so weak that it was not appropriate to order a new trial.
31Dickson J. for the dissenting minority was of the view that the distinction between offences of general and specific intent served no useful purpose and that evidence of intoxication should be left to the jury to consider with all of the other evidence in assessing whether the Crown had proven all of the elements of the offence. He reasoned as follows, at p. 34:
When, in the exercise of the power of free choice, a member of society chooses to engage in harmful or otherwise undesirable conduct proscribed by the criminal law, he must accept the sanctions which that law has provided for the purpose of discouraging such conduct. Justice demands no less. But, to be criminal, the wrong-doing must have been consciously committed. To subject the offender to punishment, a mental element as well as a physical element is an essential concomitant of the crime. The mental state basic to criminal liability consists in most crimes in either (a) an intention to cause the actus reus of the crime, i.e. an intention to do the act which constitutes the crime in question, or (b) foresight or realization on the part of the person that his conduct will probably cause or may cause the actus reus, together with assumption of or indifference to a risk, which in all of the circumstances is substantial or unjustifiable. This latter mental element is sometimes characterized as recklessness.
The burden of proving all of the elements in the definition of the crime charged, including the mental element, is always upon the Crown. The presence or absence of evidence of intoxication in no way affects that burden.
32He noted, at p. 44, that allowing the trier of fact to consider evidence of intoxication would not automatically mean that an accused person could avoid criminal liability through intoxication:
[I]t is generally recognized that the usual effect of drinking is merely to remove self-restraints and inhibitions and induce a sense of self-confidence and, perhaps, aggressiveness. If the accused was drunk at the time of the alleged offence but it is proved that he did the act intentionally or recklessly, it is irrelevant that but for the drinking he would never have done the act. The intent or recklessness, constituting the necessary mental element, is present and the fact that, by reason of drink, his judgment and control relaxed so that he more readily gave way to his instinctual drives, avails him nothing.
33However, where the intoxication is of such a degree that it affected the accused’s ability to foresee the likely consequences of his or her actions, Dickson J. was of the view that this evidence should be considered in determining whether that accused acted recklessly (p. 46):
Recklessness in a legal sense imports foresight. Recklessness cannot exist in the air; it must have reference to the consequences of a particular act. In the circumstances of a particular case, the ingestion of alcohol may be sufficiently connected to the consequences as to constitute recklessness in a legal sense with respect to the occurrence of the prohibited act. But to say that everyone who gets drunk is thereby reckless and therefore account-able is to use the word “reckless” in a non-legal sense and, in effect, in the case of an intoxicated offender, to convert any crime into one of absolute or strict liability.
34The debate over differences between offences requiring proof of specific intent and those of general intent and the relevance of intoxication, continued in R. v. Bernard, 1988 22 (SCC), [1988] 2 S.C.R. 833. All agreed that the distinction may not be logically defensible and that it had produced illogical results, but McIntyre J. concluded that policy reasons justified the continued application of this approach, and that sexual assault causing bodily harm was an offence of general intent: R. v. Bernard, at pp. 879-880.
35He held that the distinction did not affect the Crown’s obligation to prove the mens rea of a general intent offence, but that mens rea could be inferred from voluntary actions of the accused; or, where evidence is raised showing that the accused acted involuntarily, proof of voluntary intoxication could substitute for the proof that the accused acted voluntarily: R. v. Bernard, at pp. 878-79.
36Dickson C.J., in dissent, criticized the effect of the distinction between general and specific intent. He would have held that the Leary rule infringed ss. 7 and 11(d) of the Charter and was not justified under s. 1. He noted, at pp. 854-55:
In general intent offences, the jury is to be instructed to excise from their minds any evidence of drunkenness with the result that the Crown, because the accused is intoxicated, is relieved of proving mens rea, thereby placing the intoxicated person in a worse position than a sober person. Alternatively, the jury is required to examine the mental state of the accused, without reference to the alcohol ingested, and consequently find a fictional intent. In my view, imposition of this form of absolute liability goes well beyond what is required to protect the public from drunken offenders. As I have already indicated, striking down the artificial rule which precludes the trier of fact from considering evidence of intoxication in relation to mens rea has not produced an increase in the threat to public safety from drunken offenders in Australia, and there is no evidence to suggest that it would do so in Canada.
37In addition, he expressed concern that the distinction “unnecessarily and unduly complicates the jury’s task”: R. v. Bernard, at p. 857.
38Finally, in R. v. Daviault, the Supreme Court maintained the distinction between general and specific intent offences but rejected the view that voluntary intoxication could substitute for the mens rea required for assault. The court held that evidence of extreme intoxication showing that the accused acted involuntarily should be considered by the trier of fact: R. v. Daviault, at p. 87.
39In reaching this conclusion, the majority adopted the view expressed in R. v. Whyte, 1988 47 (SCC), [1988] 2 S.C.R. 3, at pp. 18-19, that “only if the existence of the substituted fact leads inexorably to the conclusion that the essential element exists, with no other reasonable possibilities will the statutory presumption be constitutionally valid”. (Whyte involved the statutory presumption of care and control of a motor vehicle based on occupancy of the driver’s seat.)
(c) The classification of arson
40With this jurisprudential history in mind, I turn then to an examination of the offence charged here: arson contrary to s. 434 of the Criminal Code, where a person intentionally or recklessly causes damage by fire to property. As the point of departure, the offence is defined by reference to the mental element of intention or recklessness.
41The offence of arson is different from assault in that while it is difficult to imagine (apart from cases of insanity or automatism) how someone who punched another in the face or had sexual intercourse with someone without consent did so accidentally or involuntarily, accidental damage to property by fire is all too common.
42If a fire results after a person does something while intoxicated, it would not necessarily follow that the person intended to set fire to their home, or foresaw that a fire would result. In my view, the defence of accident should not be constrained, or effectively foreclosed, by a rule that prevents the trier of fact from considering evidence of consumption of alcohol. As a practical matter, it would be unreasonable and unnecessarily complicated to ask a jury to compartmentalize their thinking by excluding from their consideration the effects of alcohol and answer a hypothetical question as to what the accused’s intent or mental state would have been but for the consumption of alcohol.
43In some cases, excessive consumption of alcohol may support a finding of recklessness. As Dickson J. observed in Leary, at p. 46, “[i]n the circumstances of a particular case, the ingestion of alcohol may be sufficiently connected to the consequences as to constitute recklessness in a legal sense with respect to the occurrence of the prohibited act.” Surely voluntary intoxication would be relevant to those circumstances.
44The view that s. 434 is not intended to cover accidental fires, even accidental fires set by those under the influence of alcohol, is supported by the existence of the offence of arson by negligence in s. 436 of the Criminal Code:
(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.
45Other appellate courts have concluded that the effects of consumption of alcohol are relevant to a consideration as to whether the accused had the intention to commit similar offences. In R. v. Swanson (1989), 1989 2848 (BC CA), 48 C.C.C. (3d) 316 (Y.T.C.A.), the accused was charged with having “wilfully caused a fire causing damage to property.” Wilfully was a defined term in this context, and the court concluded that the Crown had to establish that the accused caused the occurrence of an event “knowing that the act or omission will probably cause the occurrence of the event and being reckless whether the event occurs or not.” The court held this was an offence of specific intent and that the trial judge erred in failing to consider the accused’s drunkenness.
46Similarly, in R. v. Hudson (1993), 1993 14912 (MB CA), 88 Man. R. (2d) 150 (C.A.), the accused was charged with arson involving a dwelling house. The Crown alleged that she intentionally or recklessly caused damage by fire to the home, after she set a quilt on fire, and the fire spread and burned down the house. The trial judge concluded that the offence was a crime of general intent and that “the defence of intoxication does not constitute a defence to the charge.” The Court of Appeal disagreed and indicated, at para. 13:
Not all offences can be or need be neatly categorized as offences of specific or general intent. On the facts of this case, whether s. 433 constitutes an offence of specific or of general intent was not the question for determination. The property to which the appellant actually set fire was the quilt. In order for the appellant to have been found guilty of the offence under s. 433(a), it was necessary for the trial judge to find as a fact that, by setting fire to the quilt, the appellant intentionally or recklessly damaged Mr. Dumont’s home, the finding that she deliberately set fire to the quilt was not enough. Because she had not set fire directly to the property that was inhabited or occupied, the trial judge was required to take one additional step and to determine whether by setting the fire as she did, the appellant intended or should have anticipated the resulting damage. Intoxication, on these facts, with this charge, may have been a relevant factor.
47If one were to apply the test set out in R. v. George, it would seem apt to describe arson as an offence requiring a specific intent – as requiring more than a voluntary act with an immediate end. It requires an awareness of the more distant consequences of that act, and a conscious decision to proceed in the face of those consequences. Many ordinary household activities, such as placing a pan on a stove burner, smoking a cigarette, or lighting a candle, cause fires. These activities, undertaken intentionally, should only attract criminal conviction for arson when they are done “with the specific and ulterior motive and intention of furthering or achieving an illegal object” (R. v. George, at p. 890) or recklessly, with subjective knowledge that damage by fire will probably result.
48Unlike a punch in the face, where it is quite self-evident that a person intended to apply force, some of the ordinary household activities described do not lead inevitably to the conclusion that the person intended to cause damage by fire or was reckless as to whether such damage would occur.
49In R. v. Bernard, at p. 880, McIntyre J. supported his conclusion that voluntary drunkenness was no defence to assault on the ground that “[i]ntoxication, whether by alcohol or drugs, lies at the root of many if not most violent assaults: intoxication is clearly a major cause of violent crime.” But there is no basis here to say that household fires generated by ordinary household activities which get out of control are similarly associated with intoxication. When the amendments to the Criminal Code were introduced to bring the present versions of arson (s. 434), and criminally negligent arson (s. 436) into force, the Minister of Justice remarked in the House of Commons:
I rise today to speak on a subject of concern to many Canadians. I think all of us know what a terrible destructive force fire can be when it occurs. Fires cause death, injury and property damage every day in this country. Most are the results of accident or carelessness, but some are deliberately, recklessly or negligently caused by someone.
House of Commons Debates, 34th Parl., 2d Sess., Vol. 6 (15 February 1990), at p. 8371 (Hon. Doug Lewis).
50This is important for two reasons. Firstly, this passage recognizes that most fires result from accidents or carelessness, not criminal misconduct. Secondly, this demonstrates that there was an intention to distinguish between intentional, recklessness and negligent fires. The Minister continued, at p. 8373:
Even though it is important to retain an offence of negligent arson in the Code, it was important to reformulate it and the presumptions which underpin it so as to minimize any possibility that the offence might be found contrary to the Canadian Charter of Rights and Freedoms. We have done that in Section 436.
51In the present appeal, the Crown relied on R. v. Muma (1989), 1989 7214 (ON CA), 51 C.C.C. (3d) 85 (Ont. C.A.) as authority that arson is a general intent offence, and that intoxication is irrelevant. In that case the accused was charged with unlawful act murder and the underlying act was arson as defined by s. 389 of the Criminal Code, which read:
(1) Everyone who wilfully sets fire to
(a) a building or structure, whether completed or not,
(b) a stack of vegetable produce or of mineral or vegetable fuel,
(c) a mine,
(d) a well of combustible substance,
(e) a vessel or aircraft, whether completed or not,
(f) timber or materials placed in a shipyard for building, repairing or fitting out a ship,
(g) a military or public stores or munition of war,
(h) a crop, whether standing or cut down, or
(i) any wood, forest, or natural growth, or any lumber, timber, log, float, boom, dam or slides,
is guilty of an indictable offence and is liable to imprisonment for fourteen years.
52Wilfully was also defined by s. 386(1):
Every one who causes the occurrence of an event by doing an act or by omitting to do an act that 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.
53Relying on R. v. Schmidtke (1985), 1985 3621 (ON CA), 19 C.C.C. (3d) 390 (Ont. C.A.), this court held that evidence of intoxication was irrelevant to recklessness although it would have been relevant to the question of whether the fire was intentionally set. R. v. Schmidtke was decided before R. v. Sansregretmade it clear that subjective foresight was a necessary ingredient of recklessness. In R. v. Schmidtke, the court held that mischief was akin to an assault and that the requisite mental element could be established by a “general intent to destroy or damage property” without proof of specific intent.
54In the case at hand the statutory landscape is different in two ways from that described in R. v. Muma. Since R. v. Muma, arson has been differently defined and the offence of negligent arson has been refined in the Criminal Code.
55A conviction for criminal negligence requires conduct amounting to a marked departure from the conduct of a reasonably prudent person and does not focus on the subjective state of mind of the accused: R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at paras. 36-40.
56The differences between subjective and objective mens rea were highlighted in R. v. Creighton, 1993 61 (SCC), [1993] 3 S.C.R. 3, at pp. 58:
The mens rea of a criminal offence may be either subjective or objective, subject to the principle of fundamental justice that the moral fault of the offence must be proportionate to its gravity and penalty. Subjective mens rea requires that the accused have intended the consequences of his or her acts, or that knowing of the probable consequences of those acts, the accused have proceeded recklessly in the face of the risk. The requisite intent or knowledge may be inferred directly from what the accused said or says about his or her mental state, or indirectly from the act and its circumstances. Even in the latter case, however, it is concerned with “what was actually going on in the mind of this particular accused at the time in question”: L'Heureux-Dubé J. in R. v. Martineau, supra, at p. 655, quoting Stuart, Canadian Criminal Law (2nd ed. 1987), at p. 121.
Objective mens rea, on the other hand, is not concerned with what the accused intended or knew. Rather, the mental fault lies in failure to direct the mind to a risk which the reasonable person would have appreciated. Objective mens rea is not concerned with what was actually in the accused's mind, but with what should have been there, had the accused proceeded reasonably.
(d) Conclusion
57The Crown’s position in this appeal that arson is a general intent offence, and that evidence of the respondent’s intoxication was accordingly irrelevant and inadmissible cannot be sustained. The mental element for arson is that the accused caused the fire (or explosion) “intentionally or recklessly”. Both are subjective mental elements, with recklessness depending on the accused’s subjective foresight of the consequences of his actions.
58To ignore evidence of intoxication, and to consider instead, as the Crown has argued, what the respondent would have foreseen had he been sober, is to replace the subjective mens rea with an objective mental element.
59Interpreting arson as a general intent offence when committed recklessly would require the trier of fact to consider the effects of alcohol to decide whether a fire was set voluntarily or intentionally and to ignore the effects of alcohol to decide whether the accused was reckless. As I have indicated in these reasons, this is not only impractical, but not warranted by an analysis of the elements of the offence. Instead, the trier of fact dealing with arson under s. 434 must consider all of the evidence, including evidence of intoxication, in considering whether the Crown has proven the voluntary act and the subjective intent required. In most cases, evidence of intoxication would go in as part of the narrative in any event.
60Where an intoxicated accused does not have the subjective intent required for arson under s. 434, he could be guilty of arson by negligence under s. 436 if his conduct amounted to a marked departure from the conduct expected of a reasonable person, and the other requirements of that section were met.
61In this case, the statutory language “intentionally or recklessly causes damage” means that the subjective state of mind of the accused, that is to say, what was actually in his or her mind, is in issue. Intoxication may affect his or her actual state of mind, and is accordingly a relevant factor when determining whether the accused had the required mental state to be found guilty of arson under s. 434.
62This same conclusion flows from the application of the R. v. George test for distinguishing general and specific intent offences and is compatible with the public policy underlying the offence.
(2) Did the trial judge err in characterizing the classification of arson as a question of fact?
63As can be seen from the above discussion, the classification of an offence as one of general or specific intent involves the application of a legal test to the legal elements of an offence. I agree with the parties that this is a pure question of law. By implication, this means that this determination will not vary depending on the circumstances of a case. To the extent that the trial judge indicated otherwise, he was in error.
E. Disposition
64Although the trial judge erred in concluding that the determination of whether the offence required proof of specific intent was a fact-specific inquiry that could be answered differently in different cases, that error was of no moment, since his conclusion that he could consider the effects of alcohol in deciding whether the accused intentionally or recklessly caused damage by fire was correct.
65The Crown does not appeal on any other ground.
66Accordingly, I would dismiss the appeal.
“G. Pardu J.A.”
“I agree K. van Rensburg J.A.”
67I have had the benefit of reading the reasons for judgment of my colleague Pardu J.A. With respect, however, I reach a different result. I agree with my colleague that the trial judge erred in law in deciding that it is the facts in each case that determine whether a charge of arson under s. 434 of the Criminal Code is to be treated as an offence of general or specific intent. Unlike my colleague, I conclude that s. 434 creates an offence of general intent and that the trial judge erred in law by treating it as one of specific intent entitling him to take into account the respondent’s self-induced intoxication as a defence, and therefore acquitting the respondent.
68For the reasons that follow, it is my view that the acquittal should be set aside and a new trial ordered.
69My colleague has ably outlined the trial judge’s important findings of fact. For my purposes, it is enough to highlight that on September 24, 2010, the respondent was alone in his ex-girlfriend’s home. He was clearly upset that she had broken up with him. He had consumed a great deal of alcohol that day, so much that at some point he passed out. When he woke up, he put some vegetable oil in a frying pan and put it on the stove. He turned the dial to high intending to cook some bacon and then left to go to Tim Horton’s. When he returned 15 to 20 minutes later, the house was on fire. Both the house and its contents suffered significant fire damage.
70The trial judge concluded that the respondent’s conduct caused the fire. As he said, that left only the question of whether the respondent did so intentionally or recklessly. In other words, did he have the requisite mens rea?
71On that question, the trial judge had a reasonable doubt and therefore acquitted the respondent. In reaching this conclusion, he took into account whether the respondent’s drunken condition left him unable to intentionally or recklessly cause the fire. The respondent argued that the trial judge did not consider intoxication in reaching his conclusion. I disagree. The trial judge made explicit that in the end, he was clearly troubled about whether the respondent was mentally able, either intentionally or recklessly, to do what he did in view of his drunken condition. Hence the trial judge’s reasonable doubt.
Analysis
72This is a Crown appeal. Section 676(1)(a) of the Code provides that the Crown may appeal on a question of law. To succeed in obtaining a new trial, the Crown must show that the error might reasonably be thought to have had a material bearing on the acquittal: R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 14. In my view, the Crown raises two such errors.
The First Error
73The first error is that the trial judge approached the question of whether the offence of arson under s. 434 is an offence of specific or general intent as a question of fact. The respondent does not contest that the trial judge erred in doing so.
74The distinction between a general intent and a specific intent offence concerns the mental element required for each. The distinction goes back many years in Canadian criminal law. However the most complete elucidation of the distinction is that of Sopinka J. R. v. Daviault, 1994 61 (SCC), [1994] 3 S.C.R. 63. On this issue he wrote for the whole Court, although he was in dissent in the result. Sopinka J. made clear that the first consideration in classifying an offence as one of general or specific intent is the language used by Parliament to create the offence. The second consideration is the social policy to be achieved by creating the offence. Both can be useful in determining the mental element required to commit the crime. He put it this way, at p. 122:
The task initially of defining the mental element is for the legislature but since frequently the statutory definition contains no explanation of this element it falls to the courts to do so. This definition, once arrived at, will reveal the purpose of the offence, that is, what is the social policy sought to be attained by criminalizing the particular conduct. The nature of the mental element and its relative importance serve as strong indicators as to whether drunkenness should be allowed to negate the mental element. If the policy sought to be advanced by the definition of the crime is not furthered by punishing those who lack the required mental state by reason of drunkenness, then it should be allowed to be introduced as a defence.
75Neither of these considerations has anything to do with the facts in the particular case. Both are matters of law. An offence is not to be classified one way on one set of facts and the other way on another set of facts. In my view, the trial judge erred in law by concluding that the facts before him made the offence of arson one of specific intent in this case.
The Second Error
76The Crown argues that the trial judge committed a second error of law by concluding, albeit using an erroneous approach, that the offence of arson under s. 434 is a specific intent offence. I agree with the Crown that his conclusion constitutes a legal error. Had the trial judge used the approach laid out in Daviault, supra, he would have concluded that this offence is one of general intent. The consequence is that while evidence of intoxication could provide a defence for a specific intent offence, it cannot do so for this offence of general intent: see Daviault, supra, at para. 96. As Cory J. describes in Daviault, although this distinction has been the subject of much historical controversy in both the jurisprudence and academic writing, it is now deeply embedded in our law. Only extreme intoxication akin to automatism – something not found by the trial judge here – can be raised as a defence to an offence of general intent. Intoxication short of that cannot be.
77Over the years, a method of determining if an offence is one of general or specific intent has developed in the jurisprudence. Daviault provides the definitive statement. Speaking for the Court, Sopinka J. defined general intent offences as those for which the required mental element is simply the minimal intent to do the prohibited act. As he notes, for these offences the social policy behind criminalizing the conduct would be defeated if drunkenness were a defence, because often it is conduct that persons who are drunk may commit. He put it this way, at p. 123:
Proof of intent is usually inferred from the commission of the act on the basis of the principle that a person intends the natural consequences of his or her act. … Moreover, these are generally offences that persons who are drunk are apt to commit and it would defeat the policy behind them to make drunkenness a defence.
78On the other hand, in addition to certain very serious offences like murder that fall into this category, specific intent offences include those for which the mental element requires a further intent beyond the intent to do the act that constitutes the actus reus. Sopinka J. describes this, at pp. 123-124:
Specific intent offences are as a rule those that require a mental element beyond that of general intent offences and include “those generally more serious offences where the mens rea must involve not only the intentional performance of the actus reus but, as well, the formation of further ulterior motives and purposes” (per McIntyre J. in R. v. Bernard, supra, at p. 880). These are often referred to as “ulterior intent” offences. See Majewski, supra. Professor Colvin, in “A Theory of the Intoxication Defence” (1981), 59 Can. Bar Rev. 750, correctly points out that it is the further intent in addition to the basic intent that is the hallmark of ulterior intent offences. The policy behind this classification is in part the importance of the mental element over and above the minimal intent required for general intent offences. This distinction demands that the accused not be convicted if the added important mental state is negated by the drunken condition of the accused. … One example is the offence of assault to resist or prevent arrest which is a specific intent offence. Absent the intent to resist arrest, the accused would be convicted of assault simpliciter, a general intent offence.
79The application of these principles to the offence of arson under s. 434 begins with the language of the section itself:
- 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.
80The actus reus of this offence is conduct that causes damage by fire to property that the person does not wholly own. That is not an issue in this case. The trial judge found that the respondent engaged in such conduct by pouring vegetable oil into a pan, putting it on the stove, turning the dial to high, and leaving.
81The mental element set out in s. 434 that is required to commit the offence is that this conduct be done intentionally or recklessly. The offence requires simply the mens rea to do the very act which constitutes the actus reus. That suggests an offence of general intent.
82The social policy of criminalizing this conduct supports this conclusion, since it would defeat that policy to make drunkenness a defence to this offence which, as this case exemplifies, is apt to be committed by persons who are drunk.
83Moreover, s. 434 requires no further or ulterior intent beyond the intent to do the actus reus. This can be contrasted with s. 435 of the Code, which is very much like the example of a special intent offence used by Sopinka J., namely the offence of assault to resist or prevent arrest. The offence created by s. 435 is causing damage by fire to property with intent to defraud. This requires not just the intent to cause damage by fire to property, but to do so with the further intent of defrauding another person. The requirement of this further intent means that the offence created by s. 435 is one of specific intent. Section 434 requires no such further intent. This offence therefore lacks what would be necessary to make it one of specific intent.
84Thus, it is my view that the principles described in Daviault yield the conclusion that the offence of arson created by s. 434 is one of general intent, thereby rendering the defence of drunkenness unavailable.
85It is important to note that the consequence of this analysis is not to render the mens rea for this offence objective, as it is for the offence of arson by negligence created by s. 436 of the Code. There, the standard of prudence is that of the reasonably prudent person. The mens rea required for the s. 434 offence is not that of the reasonable person. It remains subjective. It just cannot be negated by the defence of drunkenness. As the Crown put it, to say that drunkenness is not a defence to recklessness under s. 434, one should not ask whether the accused in his drunken state saw the risk and took the chance. Rather, one should ask whether the accused would have seen the risk had he been sober. In this sense, the mens rea has the necessary element of the subjective required by R. v. Sansregret, 1985 79 (SCC), [1985] 1 S.C.R. 570, at pp. 581-582. The analysis is of the mens rea of this accused.
86In my view, the case law of this court also supports the conclusion that arson under s. 434 is an offence of general intent, rendering the defence of drunkenness unavailable to negate the mental element required.
87R. v. Muma (1989), 1989 7214 (ON CA), 51 C.C.C. (3d) 85 (Ont. C.A.), dealt with a predecessor of s. 434 which, although somewhat differently worded, defined arson as wilfully setting fire to certain types of property. In turn, “wilfully” was then defined by the Code to include recklessness. By 1989, the Supreme Court had elucidated the concept of recklessness: see Sansregret, supra. Thus, in Muma, this court was grappling with the mental element of recklessness (as currently defined) in the context of setting fire to property, just as we are here. The court was categorical in concluding that evidence of intoxication was irrelevant as a defence to the issue of recklessness. I would not depart from that decided jurisprudence of this court.
88I also draw support from the decision of this court in R. v. Schmidtke(1985), 1985 3621 (ON CA), 19 C.C.C. (3d) 390. In that case, this court held that the offence of mischief requires proof of no more than intentionally or recklessly causing damage to property, that the offence is one of general intent, and that evidence of self-induced drunkenness is therefore irrelevant. While it is true that this case was decided before the concept of recklessness was elucidated in Sansregret, I do not think that elucidation would change the classification of mischief as a general intent offence. In my view, Schmidtke strongly suggests the same conclusion for the offence of arson under s. 434. The similarity between the two offences is clear. Arson is in a real sense a sub-species of mischief. Arson is the offence of intentionally or recklessly causing damage to property in a particular way, namely by fire. If the species is a general intent offence, I think it follows that the sub-species is as well.
89It is true that there are two cases from other jurisdictions that could suggest a different result. The first is R. v. Swanson(1989), 1989 2848 (BC CA), 48 C.C.C. (3d) 316, a decision of the Yukon Court of Appeal. That court held without analysis that causing a fire knowing that it would probably cause damage to property is a specific intent offence. I note that this case pre-dates the explanation of the principles to be used to classify offences inDaviault, and might have been differently decided had it post-dated Daviault. If not, I respectfully disagree with it.
90The second case is that of R. v. Hudson (1993), 1993 14912 (MB CA), 88 Man. R. (2d) 150, a decision of the Manitoba Court of Appeal. That court held in a case concerning arson involving a dwelling house under s. 433(a) of the Code that it was unnecessary to decide if that offence was one of specific or general intent, but that intoxication “may have been a relevant factor”. The court allowed the appeal of the appellant’s conviction on that charge but convicted her of the included offence under s. 434 without commenting on the use, if any, to be made of intoxication evidence. Here too, the case is of uncertain relevance to the one before us. However, if it stands for the proposition that drunkenness may be a defence to a charge under s. 434, I respectfully disagree with it as well.
91I conclude, therefore, that the offence of arson created by s. 434 of the Code is one of general intent. The defence of drunkenness is therefore unavailable. The trial judge erred in law in having regard to it.
92In the result, it is my view that the trial judge erred in law in finding that the distinction between an offence of general intent and one of specific intent depends on the facts of the case. The trial judge further erred in law in concluding that the offence of arson under s. 434 of the Code is one of specific intent, thus entitling him to consider the defence of drunkenness. Both errors clearly had a material bearing on the outcome he reached.
93I would therefore allow the Crown’s appeal, set aside the acquittal and order a new trial.
Released: April 8, 2014
(STG)
“S. T. Goudge J.A.”
