R. v. Buttar, [1989] 2 S.C.R. 1429

Balbir Singh Buttar Appellant

v.

Her Majesty The Queen Respondent

indexed as: r. v. buttar

File No.: 20006.

1989: November 10; 1989: December 21.

Present: Lamer, Wilson, La Forest, L'Heureux-Dubé, Gonthier, Cory and McLachlin JJ.

on appeal from the court of appeal for british columbia

Criminal law -- Arson and other fires -- Elements of offence ‑‑ Accused convicted of wilfully setting fire to material which was likely to cause a building to catch fire -- Recklessness on the part of the accused ‑‑ Whether s. 434(a) of the Criminal Code requires knowledge by the accused that the building was likely to catch fire.

The accused was charged under s. 433 of the Criminal Code with wilfully setting fire to his house and, under s. 434(a), of wilfully setting fire to material which was likely to cause the house to catch fire. The evidence indicated that the accused started a fire in the fireplace. As was his practice, he used gasoline to light the fire. Some clothing lying near the hearth caught fire some time later, so he pushed it into the fireplace. To reduce the smoke, he poured gasoline on the clothing. At the time, the accused had consumed a considerable amount of alcohol. He then left the house leaving the fire unattended. The accused testified that he had no intention to burn his house but admitted that he might have spilled some gasoline on the carpet and left the screen of the fireplace open. He was acquitted on the first count but convicted on the second. The trial judge found that the accused was reckless when he burned such a large package of clothing in a relatively small fireplace, and concluded that the act of setting fire to the clothing in those circumstances was objectively likely to cause the building to catch fire. The majority of the Court of Appeal upheld the conviction. The court held that, under s. 434(a) of the Code, the essential element of a guilty mind is satisfied by proof that the accused wilfully set fire to the thing, here the clothing or other material, which was likely to cause the building to catch fire. There was no argument at trial or in the Court of Appeal predicated on s. 7 of the Canadian Charter of Rights and Freedoms.

Held: The appeal should be dismissed.

Per Lamer, Wilson, La Forest, Gonthier and Cory JJ.: On the facts of this case, the accused stands convicted on either test, objective, subjective, or a combination of both.

Per L'Heureux-Dubé and McLachlin JJ.: For the reasons given by the majority of the Court of Appeal, the appeal should be dismissed.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, s. 7.

Criminal Code, R.S.C., 1985, c. C-46, ss. 429, 434(a).

APPEAL from a judgment of the British Columbia Court of Appeal (1986), 1986 CanLII 1163 (BC CA), 28 C.C.C. (3d) 84, 52 C.R. (3d) 327, dismissing the accused's appeal from his conviction for wilfully setting a fire contrary to s. 434(a) of the Criminal Code. Appeal dismissed.

Blair T. MacDonell, for the appellant.

Elizabeth Bennett, for the respondent.

The judgment of Lamer, Wilson, La Forest, Gonthier and Cory JJ. was delivered by

//Cory J.//

CORY J. -- This appeal comes to the Court as of right.

On the facts of this case, I am of the view that the accused stands convicted on either test, objective, subjective, or a combination of both. This can be seen from the findings of fact made by the trial judge.

With regard to the state of mind and the awareness of the consequences of the appellant, the trial judge found:

(1) Intoxication

On the evidence I am of the view:

(1)That the accused due to his admitted daily consumption of alcohol had a great tolerance to alcohol.

(2)That he had consumed a considerable amount on the date in question as is reflected by the breathalyzer tests.

(3)His mind and actions were to an extent clouded by alcohol, but by his own evidence he recollects the events with some detail and I can only conclude that he had an operating mind on the date in question. In other words, he was not so intoxicated that he did not know what he was doing. He had sufficient ability to perceive what he was doing and the consequences which might follow.

The trial judge stated:

... I find that Mr. Buttar was reckless in that he burned such a large package of clothing in a relatively small fireplace. When one looks at the photographs this is clearly observable in photograph ten. In any normal sense a package of clothing of that size, if not placed securely in the fireplace, would fall out.

There is also evidence that Mr. Buttar admitted that he probably did not close the screen. He left the fire unattended. He poured gasoline on the clothing. And, he also spilled gasoline on the carpet.

If these acts are taken together I'm satisfied they fit within the definition of wilfulness. That is, there was such reckless acts done even though there might not have been a bad motive.

As there has been no constitutional challenge to s. 429 of the Criminal Code, R.S.C., 1985, c. C-46, and as there was no argument below predicated on s. 7 of the Canadian Charter of Rights and Freedoms, but only Lambert J.A.'s reference to that section, I am of the view this is not the proper case to articulate principles of law and, accordingly, I would dismiss the appeal without further reasons.

The reasons of L'Heureux-Dubé and McLachlin JJ. were delivered by

//McLachlin J.//

MCLACHLIN J. -- I would dismiss the appeal for the reasons given by Esson J.A., with the caveat that I should not be taken as having decided what the result should be had s. 7 of the Canadian Charter of Rights and Freedoms been put in issue or argued.

Appeal dismissed.

Solicitors for the appellant: Johnstone & Company, Prince Rupert.

Solicitor for the respondent: The Ministry of the Attorney General, Vancouver.