CITATION: R. v. SICKLES, 2015 ONSC 6151
COURT FILE NO.: 11610
DATE: 2015/10/02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
H. Palin, for the Crown
- and -
LEON WILLIAM SICKLES
J. Zegers, for the accused
HEARD: October 1, 2015
LEACH J. (ORALLY)
[1] The ruling that follows makes a formal determination as to whether the current indictment facing the accused in this ongoing criminal jury trial, charging him with a single count of "Arson with disregard for human life" pursuant to s.433(a) of the Criminal Code, includes the offence of "Arson causing damage to property", pursuant to s.434 of the Criminal Code.
[2] It also addresses the Crown's request to amend the indictment, to effectively include the offence of "Arson causing damage to property" pursuant to s.434 of the Criminal Code, in the event I find that that the section 434 offence is not already included in the s.433(a) charge against the accused.
[3] In my view, these are issues that are fundamentally important to this proceeding, and it is unfortunate that they are being addressed and resolved at this late stage of the matter; i.e., on the fifth day of trial, as the Crown is nearing the close of its case, when time constraints limit opportunity for more detailed research, submissions and reflection.
Background
[4] By way of context, and explanation as to how and why I come to be dealing with these issues at this stage of the proceedings:
- The current indictment contains a single count, expressly charging the accused with an offence pursuant to s.433(a), which deals with "Arson with disregard for human life". In particular, the charging provisions of the current indictment read as follows: "LEON WILLIAM SICKLES STANDS CHARGED THAT he, on or about the 20th day of May in the year 2013 at the Settlement of Oneida of the Thames First Nation in the said region did intentionally or recklessly cause damage by fire to a house situated at 1528 Elijah Rd, knowing that, or being reckless with respect to whether the said property was inhabited or occupied, contrary to Section 433, clause (a) of the Criminal Code of Canada."
- That current indictment replaces the one that was in place immediately before commencement of trial, which included a second count alleging breach of probation.
- In the circumstances, neither the original indictment nor its replacement includes any express reference to s.434 of the Criminal Code, which deals with "Arson causing damage to property".
- However, there are indications that, from at least the time of the mandatory pre-trial conference required by s.625.1 of the Criminal Code, (which in this case occurred on September 29, 2014, almost one year to the day to the commencement of trial), both parties may have been intending to proceed on the basis that section 434 was a lesser and included offence, contained within s.433(a). In that regard:
- Rule 28.04 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) requires Crown and Defence counsel to each complete and file Form 17 in advance of the mandatory pre-hearing conference required in relation to criminal jury trials, pursuant to s.625.1 of the Criminal Code.
- Paragraph 39 of Form 17 requires: the Crown to indicate the section or sections of the Criminal Code upon which the Crown relies to establish the liability of the accused; both Crown and defence to indicate whether they submit that any offences are included in the count or counts set forth in the indictment; and the defence to indicate its position in that regard.
- The Form 17 reports completed by the parties in this matter have been provided to me pursuant to Rule 28.04(15) of the aforesaid rules, albeit with the portions referring to sentencing positions removed. A review of the filed reports confirms that, in its report dated June 20, 2014, the Crown indicated its submission that "434 is included offence of 433(a)". In its report submitted on September 9, 2014, the defence similarly indicated, in words precisely duplicating the Crown's submission, a defence submission that "434 is included offence of 433(a)".
- Whether or not the defence maintained that position at the pre-trial is not altogether clear. The presiding judge may have been left with some doubt in that regard, as the "Report to Trial Judge" prepared pursuant to Rule 28(16) of the aforesaid rules only makes reference to the Crown taking the position that "s.434 is included in 433(a)". The space for indicating any defence submission regarding included offences is left blank.
- The jury in this matter was selected by another judge on September 28, 2015, and I heard a pre-trial application by the Crown later that day, concerning the desired admission of certain evidence.
- The next morning, I provided the jury with preliminary instructions, following which Crown counsel opened her case and began leading evidence; (a process which has continued from then until now, with close of the Crown's case anticipated later today).
- On the morning of September 30, 2015, before the jury was brought back into the courtroom, I asked counsel for confirmation as to their respective positions concerning the offences that should be put to the jury. In that regard:
- Crown counsel indicated her view that the jury should be asked to consider not only s.433(a), but also s.434, which was thought to be included within s.433(a). In doing so, Crown counsel noted there was some disagreement in earlier case law about whether that was so, but more recent decisions had taken that position. Crown counsel also noted that "mischief" was another lesser and included offence, within s.433(a), but submitted that only s.433(a) and s.434 should be put to the jury.
- Defence counsel expressly indicated his agreement with Crown counsel. In particular, he agreed that s.434 was a lesser and included offence, within s.433(a), and felt that both s.433(a) and 434 therefore should be put to the jury.
- In submitting that I should embrace and follow the parties' agreement that s.434 should be viewed as a lesser and included offence, within s.433(a), counsel indicated they were aware of no case law, binding upon me, to suggest that a different approach needed to be adopted.
- However, in the course of my ensuing jury charge preparations during the evening of September 30, 2015, and further consideration of the essential elements of s.433(a) and s.434, having regard to my own review of the legislation and authorities, I grew increasingly concerned that the parties' joint submission and agreement as to the offences that should be put to the jury might be inappropriate and, indeed, impermissible as a matter of law. In that regard:
- Agreement between parties and their counsel certainly is something to be welcomed, and not something to be lightly disregarded.
- However, the court retains the ultimate say regarding determinations as to applicable law and, in my view, the parties are not capable of agreeing to a procedure whereby an accused is obliged to face charges at a trial where the mandatory legal prerequisites for that to happen have not been satisfied.
- Moreover, I think I have an independent duty to raise such concerns, even if counsel do not, in order to ensure that the accused receives a fair trial.
- The next morning, (i.e., yesterday morning), I therefore raised my concerns with counsel and indicated my request for further submissions in that regard at the end of the day, following the departure of the jury. I noted the authorities that I had reviewed, and asked counsel to provide me with any additional authorities they thought might be relevant.
- Further submissions were received from counsel during an extended hearing at the end of the day, as contemplated. In the result:
- Crown counsel acknowledged that there were difficulties with the Crown's position that s.434 should be regarded as a lesser and included offence, and asked that, if I came to the conclusion that was not the case, requested leave to amend the indictment pursuant to s.601 of the Criminal Code.
- In that regard, Crown counsel initially sought leave to include wording within the existing count of the indictment, so as to add a reference to the damaged property not being wholly owned by the accused; i.e., thereby effectively extending the ambit of the existing count to cover all the essential elements of s.433(a) and s.434. In the course of submissions, however, the possibility of an alternative amendment was considered, whereby a further and separate count of the indictment would be added, expressly addressing s.434.
- Crown counsel felt that such amendments were required as a matter of trial fairness, insofar as all parties obviously had proceeded with trial preparation and presentation on the basis that section 434 would be "in play". In such "unique circumstances", it was said that the desired amendments to the indictment, if necessary, could be justified by application of the criteria set forth in s.601(4) of the Criminal Code.
- Crown counsel was not sure whether a further arraignment and plea by the accused would be required in the wake of any such amendments, to deal with what inherently would be the addition of a further charge in the indictment; i.e., if the amendments were premised on the need for such amendments to bring s.434 formally into play.
- If no such amendments were permitted, Crown counsel asked that the offence of mischief still be put to the jury, as a lesser and included offence falling within s.433(a).
- In the course of his submissions, defence counsel candidly indicated that he did not understand why s.434 might not be a lesser and included offence within the ambit of s.433(a), and why there were any concerns about putting that alternative offence to the jury.
- However, defence counsel was adamantly opposed, in any event, to the making of any amendments to the indictment at this stage of the proceeding.
- Defence counsel nevertheless indicated that, if there were to be any amendments, he would prefer the alternative of adding wording to the existing single count of the indictment, rather than the addition of a separate additional count referring to section 434.
- In any event, defence counsel wished to avoid any further arraignment of the accused before the jury, to address the amendments, on the basis that it would be extremely prejudicial to the accused.
- When called on for reply submissions, Crown counsel then rose to fairly indicate that, during defence counsel's submissions, she had noted the existence of further authority expressing the view that the amending provisions of s.601 of the Criminal Code did not permit the Crown to amend a count at trial so as to add a lesser and included offence.
Analysis
[5] With that extended outline of the context in mind, I turn first to the question of whether s.434 should be regarded as a lesser and included offence, within the ambit of s.433(a).
[6] I start by noting the content of the provisions themselves.
[7] In that regard, the s.433(a) offence of "arson with disregard for human life" reads as follows:
- Arson – disregard for human life - 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.
[8] The s.434 offence of "arson causing damage to property" reads as follows:
- Arson – damage to property - 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.
[9] I was not provided with any authorities by defence counsel. However, searches by Crown counsel and my own research suggested there are relatively few decisions dealing expressly with the issue of whether s.434 should be regarded as a lesser and included offence, within the ambit of s.433(a).
[10] The issue came before the Manitoba Court of Appeal in R. v. Hudson, [1993] M.J. No. 609 (C.A.). The accused was charged under s.433(a). At trial, the accused was found to have set the fire in question, and the trial judge convicted the accused. However, no finding was made as to whether the accused intentionally or recklessly caused the ensuing damage. The Manitoba Court of Appeal found that the factual findings therefore could not sustain a conviction pursuant to s.433(a), but it felt able to substitute a conviction on what it referred to as "the included offence under s.434". However, no reasons for treating s.434 as an included offence were given, and it seems the point was not argued. To the contrary, the Manitoba Court of Appeal expressly noted at paragraph 17 of the decision, that counsel for the appellant had conceded that s.434 was an included offence, within the charged offence of s.433(a).
[11] Approximately six months later, the issue was before the Manitoba Court of Appeal again, in R. v. Pascal, [1994] M.J. No. 334 (C.A.). This time, the issue of whether s.434 was included within the offence of s.433(a) was argued and considered at length. At trial, Crown counsel could not prove all elements of the charged s.433(a) offence, and therefore sought conviction on what was suggested to be the included offence of s.434. The trial judge found that the s.434 offence was not included in the charge under s.433(a), and acquitted the accused. The Manitoba Court of Appeal found that the trial judge was correct in finding that section 433(a) did not include an offence under section 434. However, it held that s.433(a) did include the offence of mischief, under section 430 of the Code, and substituted a conviction for that offence. The Manitoba Court of Appeal provided reasons for its decision, which are relatively brief but compelling, in my view. In particular:
- It referred to and relied upon the Supreme Court of Canada's decision in Luckett v. The Queen, 1980 CanLII 185 (SCC), [1980] 1 S.C.R. 1140, which interpreted the provisions of what is now section 662(1) of the Criminal Code, including its express indication that "A count in an indictment is divisible and where the commission of the offence charged, as described in the enactment creating it or as charged in the count, includes the commission of another offence, whether punishable by indictment or on summary conviction, the accused may be convicted (a) of an offence so included that is proved, notwithstanding that the whole offence that is charged is not proved; or (b) of an attempt to commit an offence so included". [Emphasis added.] As emphasized by the Supreme Court of Canada, to be an "included" offence, in the sense required to permit and justify conviction not on the crime expressly charged, but on some "lesser and included offence", therefore requires that other offence to be included by description in the enactment, or "as charged in the count", (i.e., by the wording used by the Crown in the relevant charging count).
- However, in the case before the Manitoba Court of Appeal, the Crown had failed to draft or amend the charge on the indictment so as to include the section 434 offence, and the Court of Appeal expressly found that, on its face, s.433 does not include an offence under s.434. To the contrary, ownership, (and non-exclusive ownership in particular), a necessary ingredient in s.434, is expressly stated in s.433(a) to be irrelevant to an offence under s.433.
- Mischief, however, was found, (albeit without reasons), to be an included offence under s.433, and the Court of Appeal substituted a conviction in that regard, as the unchallenged evidence at trial supported that conviction.
[12] In R. v. Eng, 1995 CanLII 1794 (BC CA), [1995] B.C.J. No. 329 (C.A.), the jury instructions given by the trial judge expressly indicated that the jury could find the accused not guilty of the charged s.433(a) offence, but "guilty of the lesser included offence under section 434". In its decision, the British Columbia Court of Appeal expressly quoted a portion of the trial judge's instructions containing those remarks, at paragraph 98 of its decision, without any adverse comment. While that might be taken as implicit acceptance of the view that section 433(a) includes the offence of s.434, there is no indication that the issue was the subject of any argument or consideration by the British Columbia Court of Appeal, which was focused on other identified failings of the instructions given by the trial judge. Certainly, no reasons are offered for any acceptance of the view that s.433(a) includes the offence of s.434.
[13] Approximately 5 months later, the question was considered expressly in R. v. Cardoso, [1995] O.J. No. 4410 (O.C.J.). That decision, by our Provincial Court, appears to be the only Ontario authority expressly dealing with the particular issue before me now. With respect, I nevertheless do not find the decision very helpful. To the contrary, I find the decision difficult to understand. The judge expressly referred to the two Manitoba Court of Appeal decisions noted above. However, the judge then described R. v. Pascal as "a brief decision without extensive analysis" before indicating "I much prefer the decision in R. v. Hudson", even though, as noted above, the Hudson decision seems to contain no analysis in support of its conclusion, and instead expressly relied upon a concession by counsel. In support of his or her preferred view, the judge in Cardoso also noted and apparently relied upon the British Columbia Court of Appeal's decision in R. v. Eng, supra, but did so expressly noting that it accepts section 434 is an included offence "without analysis". In the circumstances, I do not understand the rationale for preferring that unsupported conclusion over the reasoned position expressed in R. v. Pascal, supra. I am not bound by the decision in R. v. Cardoso, supra, and decline to follow it.
[14] A twenty year hiatus then seems to have occurred before any further express reference in the jurisprudence to the question of whether or not section 434 is a lesser and included offence in relation to 433(a).
[15] In particular, the only other authority on point, located by Crown counsel, was R. v. Meer, 2015 ABCA 141, [2015] A.J. No. 411 (C.A.). At paragraphs 107-108 of that decision, the Alberta Court of Appeal considers the text of s.433(a) and s.434, and notes that there are several differences between the two offences; i.e., that the former is more serious and carries a more serious sentence; that the accused has a defence under s.434 where he "wholly owns" the property in question whereas property ownership is irrelevant to s.433(a); and proof of property occupation is not required in relation to s.434. The Alberta Court of Appeal then clearly proceeds on the basis that s.434 is a lesser and included offence within s.433(a), and upholds the conviction of the accused on that basis. However, in my view, no analysis or reasons are offered in support of that conclusion, apart from a sentence noting that "The offence under s.434 has been held to be included in the offence under s.433(a)" in the Hudson and Cardoso cases, noted and described bove. With respect, as neither the Hudson case nor the Cardoso case offers any rationale or reasons for reaching that conclusion, I find the Meer decision similarly unpersuasive. I am not bound by that decision either, and decline to follow it.
[16] Based on the authorities made available to me within the time constraints available, which nevertheless seem to be all the decisions expressly addressing the question of whether or not s.434 is a "lesser and included offence" within s.433, my preliminary view was and remains that the answer to that question is "no".
[17] In particular, it seems to me that the only reasoned decision on point is that of the Manitoba Court of Appeal in R. v. Pascal, supra, which I find persuasive. All of the authorities suggesting a contrary view effectively offer, or repeat, an unsupported conclusion.
[18] My preliminary view nevertheless was reinforced when I turned my consideration to the question of whether or not I have jurisdiction to permit the amendments to the current indictment, sought by the Crown in this case, if s.434 is not a "lesser and included offence" within the ambit of the charged s.433(a) offence.
[19] In particular, as noted above, during the course of reply submissions, Crown Counsel fairly drew my attention to authority indicating that there may be constraints on the use of section 601; i.e., constraints which effectively prohibit amendments to the indictment in the nature of those now being suggested by the Crown, in an effort to ensure that the s.434 offence also goes to the jury.
[20] In that regard, reference was made to R. v. Rinnie, [1970] 3 C.C.C. (3d) 218 (Alta.C.A.); [1969] A.J. No. 21 (C.A.). Counsel did not have that case available for review and discussion during the course of submissions. However, I now have reviewed the Rinnie decision, as well as a number of authorities to which Rinnie refers, and which have referred to and followed Rinnie.
[21] That review suggested a number of general observations and principles, many of which are helpfully summarized in R. v. Webber, 1995 CanLII 333 (BC CA), [1995] B.C.J. No. 2178 (C.A.), and all of which reinforce my preliminary view that the s.434 offence is not a "lesser and included offence" within the s.433(a) offence. Such observations and principles include the following:
At common law, the general rule was that conviction of a lesser offence than that charged was permissible provided that the definition of the greater offence necessarily included the definition of the lesser offence. See R. v. Webber, 1995 CanLII 333 (BC CA), [1995] B.C.J. No. 2178 (C.A.), at paragraph 19.
Pursuant to what is now s.662(1) of the Criminal Code, there now are four situations in which one offence may be included in another:
- First, where the Code expressly prescribes that certain offences are included offences; for example, s.662(3) provides that manslaughter and infanticide are included within the offence of murder.
- Second, where the offence as described in the enactment creating it necessarily includes the commission of another offence; for example, "assault" within assault causing bodily harm.
- Third, where the description of the offence as charged (worded) in the count includes the commission of another offence.
- Fourth, where there is an attempt of the offence charged or of any included offence, pursuant to s.622(1)(b) and 660.
Again, see R. v. Webber, supra, at paragraph 21.
An included offence must be necessarily included or involved in the principal offence as described in the enactment creating it. In other words, the offence charged, as described, must contain the essential elements of the offence said to be included. See Fergusson v. The Queen (1961), 1961 CanLII 97 (SCC), 132 C.C.C. 112, at pp. 114-115; R. v. Simpson (No.2)(1981), 1981 CanLII 3284 (ON CA), 58 C.C.C. (2d) 122 (Ont.C.A.), at p. 133; and R. v. Webber, supra, at paragraph 23.
The offence charged must also be sufficient to inform the accused of the included offence which he or she must meet. In particular, to be an included offence, the inclusion must form such an apparent and essential constituent of the offence charged that the accused in reading the offence charged will be fairly informed in every instance that he or she will have to meet not only the offence charged but also the specific offences to be included. Such apparent inclusion must appear from "the enactment creating" the offence or "from the offence as charged in the count": either of the two may be considered under s.662, but not the opening of counsel or the evidence. See R. v. Manuel (1960), 1960 CanLII 522 (BC CA), 128 C.C.C. 383 (B.C.C.A.); R. v. Rinnie, supra; R. v. Luckett, supra; R. v. Simpson (No. 2), supra.
An offence is necessarily included in another offence when it is not possible to commit the "greater" offence without also committing all of the elements of the lesser. See R. v. Webber, supra, at paragraph 25.
A trial judge has very wide powers to cure any defect in a charge by amending it if the charge is not an absolute nullity, and if the amendment does not prejudice the accused. However, a trial judge may not amend an indictment to substitute a different offence from the offence charged in the indictment. Nor may a trial judge amend an indictment to charge an offence that is not necessarily included in the original indictment. See R. v. Moore (1988), 1988 CanLII 43 (SCC), 65 C.R. (3d) 1 (S.C.C.), at p.25; Elliott v. The Queen (1977), 1977 CanLII 209 (SCC), 38 C.C.C. (2d) 177 (S.C.C.), at p.182 and p.201; R. v. Manuel, supra; R. v. Rinnie, supra, at pp.222-224; and R. v. Webber, supra, at paragraph 30.
[22] With the above principles in mind, I now consider their application to the specific situation and issues before me.
[23] In that regard, I am not aware of any provisions of the Criminal Code expressly providing that the offence of s.434 is included within the offence of s.433(a).
[24] In my view, this also is not a situation where the s.433(a) offence as described in the enactment necessarily includes the commission of the s.434 offence. To the contrary, it is clearly possible for an accused to commit the offence enacted in s.433(a) without committing the offence of s.434. In particular, a person who intentionally or recklessly causes damage by fire or explosion to property that he wholly owns, where the person knows that or is reckless with respect to whether the property is inhabited or occupied, commits the offence of s.433(a) without committing the offence of s.434. This is, I think, because Parliament clearly focuses separately on two distinct concerns in the two different offences; i.e., with s.433(a) focusing on protection of human life without regard to property, and s.434 focusing on protection of property without regard to human life.
[25] Nor is this a situation where the Crown has used wording, in the particular indictment charging the accused, to provide additional specifics about the manner in which the offence was committed in a manner that amplifies the original description of the offence in the enactment creating it, thereby importing included offences not otherwise contained in the offence.
[26] For example, the Crown in this case could have worded Count 1 of the indictment against Mr Sickles as follows:
"LEON WILLIAM SICKLES STANDS CHARGED THAT he, on or about the 20th day of May in the year 2013 at the Settlement of Oneida of the Thames First Nation in the said region did intentionally or recklessly cause damage by fire to a house situated at 1528 Elijah Road, which he did not wholly own, knowing that, or being reckless with respect to whether the said property was inhabited or occupied, contrary to section 433, clause (a) of the Criminal Code of Canada. [Emphasis added.]
[27] While the enactment creating s.433(a) does not in itself bring all the essential elements of s.434 within its ambit, the additional wording I have inserted and emphasized would have amplified the particular indictment beyond s.433(a) so as to include all the essential elements of s.434 as well. But this was not done.
[28] Moreover, because the section 434 offence is not necessarily included in the s.433(a) offence, by virtue of the enactment creating the s.433(a) offence, or from the offence as charged in the account, I do not think it can be said that an accused reading the offence charged would be fairly informed in every instance that he would have to meet not only the s.433(a) offence but the s.434 offence as well.
[29] It may very well be that the evidence in this case indicates that the accused in this case does not "wholly own" the house that was damaged by fire, which in turn might satisfy that essential element of s.434. But again, the question of fair notice to an accused of what offences he or she is facing is not to be determined by the evidence, but by the enactment creating the specified offence and the wording of the indictment.
[30] In short, in my view, application of the general principles applicable to the determination of what constitutes an "included" offence reinforces my preliminary view, based on the limited case law specifically dealing with the issue, that section 434 is not an offence included within the s.433(a) offence charged against Mr Sickles in the indictment.
[31] Whatever the parties mistakenly may have assumed, the fundamental legal reality, I think, is that Mr Sickles actually was never charged with an offence under s.434 of the Criminal Code, based on the former or current indictment.
[32] Regardless of whether or not the accused and his counsel share that view, I therefore think it would be improper, as a matter of law, for that possible separate and distinct offence to be put to the jury in this case.
[33] Moreover, pursuant to the authorities to which I have referred, it seems to me the Crown must not be permitted to amend the indictment at this stage of the proceedings when the effect of the amendment is to add a non-included offence to the charges Mr Sickles is facing.
[34] Without limiting the generality of the foregoing, it seems to me that, whether the amendment expressly adds a separate and additional count to the indictment alleging a contravention of s.434, or amends the existing count by adding wording in the manner noted above, (i.e., to specify that the house damaged by fire was not "wholly owned" by the accused), the effect is the same. The focus is not on making the indictment conform to the evidence concerning the alleged s.433(a) offence, or on curing any defect or failing in stating the expressly identified s.433(a) offence, etc., but to add a new and distinct charge to the indictment in the middle of a criminal jury trial.
[35] In other words, I have difficulty seeing how the situation really falls within the provisions of s.601(1), (2) or (3) of the Code.
[36] Even if I have the jurisdiction to consider granting the Crown's desired amendments, applying the considerations set forth in s.601(4) of the Criminal Code, I would be inclined, on balance, to deny the request. In that regard:
- I am advised that the matters disclosed by the evidence taken on the preliminary inquiry generally conform to the evidence at trial, and in my view, that evidence certainly is capable of supporting a charge under s.434. In particular, the complainant has testified that the accused deliberately set fire to the house which the complainant claims to own. There has been some evidence to suggest that the accused's mother may have an interest in the property, (although this is vehemently denied by the complainant). But there certainly is no evidence to suggest that the house was wholly owned by the accused.
- I also agree with Crown Counsel that the accused has not been misled or prejudiced in his defence, in that the accused and his counsel apparently have been acting under the mistaken belief that the accused has been facing a s.434 charge all along. Their preparation for and conduct of the trial therefore presumably would have been the same had the indictment properly included that charge from the outset.
- However, I have concerns about other "circumstances" of the case, and whether the proposed amendment can be made at this point in the proceeding without injustice being done.
- In particular, although I am not unsympathetic to Crown Counsel's submission that the "circumstances" should include considerations of trial fairness from the Crown's perspective, insofar as it effectively was permitted to proceed to trial without any objection or concern being expressed about its intention to rely on s.434, this is offset in my view by the possible prejudice created by making of the requested amendments at this late stage of the proceedings.
- In my view, an amendment which effectively would roll the separate and distinct offences under s.434 and s.433(a) into one count, by adding words to the existing count so that it covers both offences, would unnecessarily risk confusing the jury. In particular, despite instructions from me to the contrary, artificial compression of the two distinct offences into one count may very well lead them to mistakenly think that ownership issues are relevant to the s.433(a) offence, or that occupation issues are relevant to the s.434 offence.
- The alternative amendment, to add a separate and distinct count, would achieve clarity but create other possible prejudice to the accused. In particular, if another count is added, I see no alternative to a further arraignment of the accused so that he can plead to that new and additional charge, but agree with defence counsel that the optics of this to the jury, seeing the criminal charges against the accused mounting during the trial, could and probably would have a very serious and detrimental impact on the jury's perception of the accused.
[37] Again, I am not without sympathy for the position in which the Crown finds itself, in this particular situation.
[38] However, particularly when addressing that situation at this point risks prejudice to the accused, I think the Crown must take ownership of its decisions, as far as framing of the indictment is concerned.
[39] From the outset, the Crown easily could have charged the accused with an indictment alleging contravention of s.433(a) and s.434 in separate counts.
[40] Alternatively, from the outset, the Crown could have compressed both offences into one count through use of expanded wording, (although that would have entailed unnecessary risks of confusion, for the reasons I have mentioned).
[41] However, owing to a mistake of law, (rather than a mistake of fact), the Crown chose to do neither, and instead alleged only an offence contrary to s.433(a), which does not include s.434.
[42] I nevertheless think that the situation is different, in relation to the offence of mischief, which in my view is an offence included within s.433(a).
[43] As noted above, this was the stated view of the Manitoba Court of Appeal in R. v. Pascal, supra. Again, when the Crown in that case fell short of proving the s.433(a) offence charged in that case, the Manitoba Court of Appeal refused to permit a conviction pursuant to s.434, as it was not an included offence within s.433(a), but the Court did record a mischief conviction pursuant to s.430, which was expressly found to be an "included offence".
[44] The reasons for that approach are not outlined by the Manitoba Court of Appeal in R. v. Pascal, supra, but in my view are not hard to surmise or understand. In particular:
- The enactment creating the s.433(a) offence makes it clear that one of its essential elements is "intentionally or recklessly causing damage to property" by fire or explosion.
- Section 430(1)(a) of the Criminal Code specifies that anyone who "wilfully … damages property", (regardless of the method used), commits mischief, and s.429(1) of the Criminal Code makes it clear that "wilfully" includes both knowingly doing an act and recklessness. See R. v. Muma (1989), 1989 CanLII 7214 (ON CA), 51 C.C.C. (3d) 85 (C.A.).
- The enactment creating the s.433(a) offence therefore makes it apparent that mischief forms an essential constituent of that offence, and fairly informs an accused in every instance that he or she will have to meet not only the s.433(a) offence but also that included offence.
Conclusion
[45] For the reasons set forth above:
- I find that the offence of "arson with disregard for human life" in s.433(a) does not include the offence of "arson causing damage to property" in s.434.
- I deny the Crown's application to amend its indictment, at this stage of the proceeding, so as to include that additional offence.
- The jury accordingly will be charged in relation to s.433(a), but not in relation to s.434.
- However, as mischief is an offence included within s.433(a), the jury will be charged in relation to that offence as well.
"Justice I. F. Leach"
JUSTICE I. F. LEACH
Released: (Orally) October 2, 2015