Canadian Criminal Law/Offences/Arson
| Arson | |
|---|---|
| s. 433 of the Crim. Code | |
| Election / Plea | |
| Crown Election | Indictable |
| Jurisdiction | Prov. Court SC Judge + PI (I) SC Jury + PI (I) (536(2)) |
| Indictable Dispositions | |
| Maximum | 5 years jail (negl.) 14 years jails (prop.) Life in jail (disreg.) |
| References | |
| Offence Elements Sentence Principles Sentence Digests | |
Arson
[edit | edit source]Legislation
[edit | edit source]Arson — disregard for human life
433. Every person who intentionally or recklessly causes damage by fire or explosion to property, whether or not that person owns the property, is guilty of an indictable offence and liable to imprisonment for life where
- (a) the person knows that or is reckless with respect to whether the property is inhabited or occupied; or
- (b) the fire or explosion causes bodily harm to another person.
– CCC
Arson — damage to property
434. Every person who intentionally or recklessly causes damage by fire or explosion to property that is not wholly owned by that person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
– CCC
Arson by negligence
436. (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.
Non-compliance with prevention laws
(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.
– CCC
Proof of Offence
[edit | edit source]In addition to the essential elements of time, location and identity, the Crown should prove the following for each offence:
Arson — disregard for human life
- the accused caused damage to property by fire or explosion
- the accused had intention or was reckless in causing damage
- the accused either:
- knew or was reckless with respect to whether the property was inhabited or occupied; or
- the fire or explosion causes bodily harm to another person.
Arson — damage to property
- the accused caused damage to property by fire or explosion
- the accused had intention or was reckless in causing damage
- the property was not wholly owned by the accused
Arson by negligence
Application
[edit | edit source]The mens rea requirements does not include the need to prove a subjective foresight of the consequences of the act of starting the fire.[1] However, the crown does need to prove the "probable consequences" of starting the fire was known to the accused.[2] The minimal mens rea standard is one of recklessness.[3]
It is often expected that Crown expert evidence will be required to establish the cause of the fire as being from the accused.[4]
- ↑ R. v. Peters, 1991 CanLII 257 (BC C.A.)
- ↑ R. v. S. D. D., 2002 NFCA 18 (CanLII)
'c.f.' R. v. Buttar, 1986 CanLII 1163 (BC C.A.) - ↑
R. v. Brain, 2003 BCCA 70
R. v. Venn, 1991 CanLII 914 (BC S.C.) - ↑ e.g. R. v. Eng, 1996 CanLII 1598 (BC SC)
Expert Evidence
[edit | edit source]When weighing the evidence of an arson expert, the Court should consider:[1]
- whether the expert visited the scene of the fire
- whether he was present in court for relevant eyewitness evidence
- whether the defence expert had a flawed understanding of the Crown expert evidence
- the plausibility of the alternative explanations of the fire
- ↑
R. v. Vieira, 2005 CanLII 41367 (ON CA)
E.g. See R v Jonkman, 2012 SKQB 511 (CanLII)
Possession of Incendiary Materials
[edit | edit source]Possession of incendiary material
436.1 Every person who possesses any incendiary material, incendiary device or explosive substance for the purpose of committing an offence under any of sections 433 to 436 is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
– CCC