Arson (s. 433 – 436) Charges in Canada: Offences, Defences, Punishments

What is Arson?

Arson involves causing damage to property by intentionally or recklessly causing a fire or an explosion. It is relatively rare in comparison to other criminal offences but is still considered a serious crime in Canada.

Examples

Examples of arson include:

• Setting fire to your car;
• Not properly extinguishing a fire that ensues;
• Attempting to commit suicide by setting a fire in your own home; and
• Intentionally putting matches to paper, resulting in the destruction of property.

Defences

While there are a number of defences which can be raised against a charge for arson, the following are the most appropriate: lack of mens rea/actus reus, automatism caused by intoxication, identity issues, colour of right, the accused’s Charter rights being breached, and mental disorder.

These defences will be explored in more depth in the upcoming sections of this article.

Punishment

A charge for arson carries severe consequences, with maximum sentences ranging from 5 years to life imprisonment.

As it is an indictable offence, individuals charged with arson can choose to be tried either by a judge alone or by a judge and jury.

The punishments for sections 433 through 436 of the Code slightly vary, so the specific penalties for each provision will be outlined in greater detail in the upcoming sections of this article.

Overview of the Offence

The Criminal Code of Canada  (the “Code”) identifies five separate offences for arson, in sections 433 through 436.

Arson – Disregard for human life

 Section 433 of the Code makes it an offence to cause bodily harm by setting ablaze a fire on or within a property that is occupied.

The Code provision reads as follows:

The Guilty Mind (Mens Rea)

 The mens rea requirement for arson under section 433 of the Criminal Code is “intention” or “recklessness”. This means that in order for an individual to be convicted of arson under section 433, the Crown must prove that the accused either knew about the damage they would cause or that they were reckless in doing so.

In other words, the burden of the Crown is to prove (beyond a reasonable doubt) that the accused knew the consequences of their actions were probable or likely to occur.

For example, it is likely that if you cause an explosion in a space that is frequented by visitors, at least one person will be injured. According to section 433 of the Code, you would be liable for the injuries of these third parties, even though you did not intend to harm them directly.

Under this section, who the property belongs to, whether it is the accused or someone else, is irrelevant.

The Guilty Act (Actus Reus)

The illegal act prohibited by section 433 of the Code is “causing damage by fire or explosion to property” and consequently “causing bodily harm to another person”.

Penalty

As section 433 of the Code is an indictable offence, it carries a severe punishment. If an individual is convicted under this provision, they are liable to life imprisonment.

Arson – Damage to property

Section 434 of the Code makes it an offence to (intentionally or recklessly) cause damage to property that is not owned by the accused by initiating a fire or explosion.

The provision in the Code reads as follows:

The Guilty Mind (Mens Rea)

In R v Tatton, 2015 SCC 33 (“Tatton”) the Supreme Court of Canada outlined the mens rea requirement for a conviction under section 434: intentional or reckless performance of the illegal act.

This means that to secure a conviction under section 434, the Crown simply needs to prove that the accused knew the consequences of his actions would be likely to occur and that they acted anyway, in the face of probable risk.

In this way, section 434 is characterized as a “general intent offence”.

The Crown does not need to present evidence that the accused had an ulterior or overarching motive in starting the fire.

In Tatton, the Court demonstrated that convicting an accused for general intent offences does not require the Crown Prosecutor to prove that the accused intended to bring about harm directly to a victim.

In other words, there must be ‘general intent’ to perform the illegal act and not necessarily ‘specific intent’ wherein the accused devises a scheme and engages in highly complex reasoning.

For example, murder is a specific intent offence that requires the Crown to prove that the individual intended to kill the victim specifically and directly. This is largely due to the stigma that is attached to a charge of murder.

Therefore, under section 434, the Crown needs to prove the intent of the accused only as it relates to the actus reus: damaging property by fire.

The Guilty Act (Actus Reus)

In order to convict an individual under section 434 of the Code, the Crown must prove that the property was damaged by way of fire as a result of the accused’s actions.

Within this context, ‘fire’ is the mechanism that causes the damage. ‘Damage’ refers to either physical harm to or destruction of property.

Unlike section 433, under section 434 of the Code, the Crown does not need to prove that the fire or explosion caused bodily harm or that it occurred when someone was occupying the property that was damaged.

Penalty

The maximum penalty for a charge under section 434 of the Code is 14 years in prison.

Arson – Own Property

Under section 434.1 of the Code, it is an offence to (intentionally or recklessly) cause damage to your own property by igniting a fire or an explosion that seriously harms the health and safety of others.

The provision in the Code reads as follows:

Whether the accused’s actions constitute a serious threat to the health, safety and property of others will depend upon the specific facts of the case.

The Guilty Mind (Mens Rea)

The mens rea requirement for section 434.1 is intentionality or recklessness. The Crown does not necessarily need to prove that the accused was aware that the fire would be a threat to the health and safety of others. It is enough for the Crown to prove that the accused was reckless to the possibility that their actions would be harmful.

The wording of this section indicates that another person need not actually be harmed. Instead, the threat of harm is sufficient for a conviction.

This threat also applies to first responders, police and firefighters who attempt to reduce or put out the fire. If the lives of these professionals are threatened, then the accused may be held liable under section 434.1, even if they ignited a fire on their own property.

Section 434.1 includes reference to property that is partially owned by the accused. This means that the accused will be held liable for causing a fire or an explosion on properties which they only have a partial stake in.

The Guilty Act (Actus Reus)

The illegal act that is sanctioned by section 434.1 of the Code is causing damage to property that the accused owns by starting a fire or an explosion.

Penalty

The maximum penalty for a charge under section 434.1 of the Code is 14 years in prison.

Arson – For Fraudulent Purpose

Section 435 makes it an offence to cause a fire or an explosion with the intention to commit fraud.

The provision in the Code reads as follows:

For example, if you are protected under an insurance policy and it is alleged that you intended to defraud the insurance company by deliberately causing an explosion or fire to obtain an insurance payout, the court can convict you under section 435 of the Code.

The Guilty Mind (Mens Rea)

In order for the Crown to convict an individual under section 435, they must prove that the accused caused a fire or explosion with the intention to defraud. The Crown must not only prove that the accused caused a fire or an explosion, but that they also meant to defraud another individual or corporation.

The Guilty Act (Actus Reus)

The act punishable under section 435 is “[causing] damage by fire or explosion to property”.

Penalty

If the Crown proceeds on indictment under section 435(1) of the Code, then the maximum punishment that the accused can receive is a 10-year imprisonment sentence.

The Crown may also proceed with a summary conviction, but the Code does not specify the exact punishment for summary charges.

Arson – By Negligence

Arson by negligence is covered under section 436 of the Code. This provision makes it an offence to not take reasonable care to prevent the spread of a fire or an explosion on your own property.

The provision in the Code reads as follows:

To behave negligently is to not provide a sufficient standard of care that would be reasonably expected of a person in the same set of circumstances.

The Guilty Mind (Mens Rea)

Section 436 of the Code (arson through negligence) has an objective fault requirement. This means that the Crown does not need to prove intention or knowledge in order to convict an individual under this provision.

If an accused fails to prevent the spread of a fire or an explosion in a situation where it would have been reasonable to expect them to do so, the accused may be held liable for the damage caused by their negligence.

In criminal law, you can be faulted for having a lack of awareness in situations where the average prudent person would not.

The Guilty Act (Actus Reus)

Under section 436 of the Code, if you do not act with a certain level of care and prudence to prevent a fire or explosion, you may be held legally liable not only for the damage that you cause to your own property but those of others as well.

Penalty

If the Crown proceeds on indictment under section 436 of the Code, then the maximum punishment that the accused can receive is a 5-year imprisonment sentence.

The Crown may also proceed with a summary conviction, but the Code does not specify the exact punishment for summary charges.

Causation

Arson laws in Canada dictate that to secure a conviction, the Crown must prove the accused caused the fire or explosion. The Crown must accurately identify the accused and rule out other possible suspects.

In practice, however, it is difficult to prove that a specific individual started a fire. As such, the Crown often has to rely on circumstantial evidence to make their case.

In other words, the Crown does not need to prove exactly how the fire was ignited.

The Crown can infer what occurred by relying on circumstantial evidence such as the potential motives the accused may have had and whether they had the opportunity to carry out the act.

The standard or threshold for proving that arson was committed by an individual remains high, nevertheless.

The Crown must demonstrate that every other hypothesis other than the one that suggests the accused willfully and intentionally caused the fire or explosion is unreasonable.

For example, the Crown must disprove that the fire or explosion occurred accidentally or that it was a result of natural causes.

In R v Bastien, 2917 BCCA 210 the British Columbia Court of Appeal relied on circumstantial evidence to convict Ms. Jeanine Bastien under section 434.1 of the Code for having set fire to her own truck.

This was because identifying the accused as the source of the fire was difficult. To prove their theory, the Crown pointed to the fact that the accused had gasoline on her clothing and her shoes and that she was facing financial difficulties at the time that the fire occurred.

The Crown hypothesized that the accused wanted to acquire insurance money and that she wanted to buy herself some time to pay back her car loans.

Although no real damage was caused to the building or other vehicles surrounding it due to the efforts of firefighters, Ms. Bastien was sentenced to eight months in jail with two years of probation for committing arson.

Arson Defences

How to Beat an Arson Charge

Some of the most potent defences against a charge for arson include:

Breach of Charter Rights

Even if it is alleged that an individual has committed an offence, they are still entitled to the whole extent of their Charter rights before they are fully convicted. This means that the courts, in deciding an appropriate sentence, may take into consideration if law enforcement or police breach the Charter rights of the accused. If an accused is not given full disclosure or if they are coerced into making a statement, then it is possible that the charges against the accused will be withdrawn or reduced.

Identity

If the accused has an alibi for when the fire or explosion occurred, then they will likely have a strong defence case. In order to secure a conviction for arson, the Crown must accurately prove that it was the accused who specifically caused the fire or destruction. If there is reasonable doubt as to whether it was the accused or if it is a case of mistaken identity, it is possible that the accused is acquitted. In criminal law, the standard of proving identity “beyond a reasonable doubt” is high and for good reason.

Defence of Mental Disorder

In criminal law, if you are acquitted on the basis that you have a mental disorder, you will be held as “not criminally responsible on account of a mental disorder”. A verdict of not criminally responsible is not the same as “not guilty”. Instead, mental disorder relates to moral responsibility. Meeting this defense is difficult because it essentially requires diagnosing an individual after the fact and many mental disorders do not have any visible symptoms. Defense counsel must prove that the accused, because of a disease of the mind, could not appreciate the nature of their actions in committing arson.

Intoxication

Intoxication can be used as a defence where it relates to automatism. In Tatton, the Supreme Court of Canada decided that intoxication that induces an automatist state can be used as a defence against an arson charge under section 434 of the Code. However, aside from intoxication induced automatism, this defence is irrelevant to a conviction under section 434 because the Crown does not need to demonstrate that the accused knew what the actual consequences of his actions would be. This is because the Crown need only prove a low level of intent when trying to convict the accused of a general intent offence. In Tatton, the Court indicated that property damage is often associated with self-induced intoxication. As such, it would be counter-intuitive to allow basic alcohol consumption to be a valid defence against a charge for arson under section 434.

Lack of Mens Rea/Actus Reus

In general, the minimum mens rea that the Crown must prove in arson cases is recklessness. If the Crown fails to prove this as well as every other element of the offence beyond a reasonable doubt, then the charges against the accused may be withdrawn. For example, if defence counsel can adequately demonstrate that the fire or explosion occurred by accident and without recklessness on the part of the accused, then they may be acquitted.

Lawful Excuse/Colour of Right

Another defence that counsel may be able to argue on behalf of the accused is “colour of right”. Colour of right refers to having an honest belief in a state of affairs, which would provide legal justification for committing an offence. For example, if a certain cultural or religious group believes that causing a fire or explosion was within their Charter rights, this defence may be presented in court.

Aggravating Factors

According to case law dealing with arson, aggravating factors include:

• Injuries or harm to first responders (i.e., firefighters);
• Evidence of pyromania;
• Fraudulent conduct;
• And the amount of damage caused by the fire.

The motive of the accused is also important in the courts’ assessment. If the accused started the fire to seek revenge, gain financial benefits, cover evidence or to experience a thrill, the courts may sanction him or her more severely.

Those who have ulterior motives for committing arson will typically be subject to longer sentences, in comparison to those who accidentally or negligently start a fire.

Mitigating Factors

Mitigating factors for the offence of arson include whether it was a first-time offence for the accused, the level of damage that ensues from the fire, and whether the fire was accidental in nature.

However, the courts have often issued harsh sentences even for first-time offenders and for those who did not intend to cause substantial damage to property. This is because the courts take into consideration the potential harm that could have resulted if the fire was not appropriately extinguished.

Overall, the courts evaluate all of the circumstances related to the commission of the offence to determine whether the fire was caused intentionally or because of reckless behaviour.

Frequently Asked Questions

Can you go to jail for arson in Canada?

As arson is an indictable offence, it is considered to be a serious crime that can yield a jail sentence. For example, if you are convicted under section 433 of the Code, it is possible for you to receive life imprisonment.

Despite the existence of mitigating factors, such as the accused’s age or minor damage caused to property, a charge for arson has severe consequences.

For example, in R v Peters, 1991 CanLII 257 the British Columbia Court of Appeal convicted the accused, who was born with cerebral palsy and mild retardation, of arson under section 434 of the Code.

In this case, the accused had set fire to an elementary school by putting matches on paper. The court held that while the accused could not appreciate the consequences of his actions, he did have the capability to, intentionally and wilfully, set the paper on fire.

The accused was sentenced to several years in custody.

Is arson a serious offence in Canada?

Yes, arson is a very serious offence in Canada. This can be illustrated by the case of R v Ludwig, 2018 ONCA 885 (“Ludwig”) in which the accused was given a 12-month jail sentence with 2 years of probation. In this case, the accused attempted to end his life by lighting a fire in his own home.

This case demonstrates that the courts in Canada take arson very seriously, even if the accused only intended to harm themselves.

This may be due to the fact that courts recognize the life-threatening and destructive nature inherent to fire.

What is the definition of arson?

The definition of arson is causing a fire or an explosion illegally. Simply starting a fire does not necessarily constitute arson.

For example, if you intentionally cause a fire in order to harm another individual or their property, you would be committing arson.

Likewise, if you are negligent or reckless in causing an explosion, which subsequently puts the health of the public at risk, you may be charged with arson.

Published Decisions

R v Ludwig, 2018 ONCA 885

In Ludwig, the accused set a fire in his home in an attempt to end his life. The Court indicated that it would not be fair to convict the accused if the possibility that it was an accidental fire could not be ruled out. However, on account of the evidence presented, such as the fact that the accused repeatedly told his neighbours that he would kill himself that night, the court reinstated the trial judge’s conviction. As such, the Court upheld an arson charge under section 434.1 of the Criminal Code against the accused and imposed a 12-month jail sentence with a 2-year probationary period.

You can read the full decision here.

R v M.V., 1998 CanLII 4374 (ON CA)

In R v M.V., two young individuals were charged under section 434 of the Code for damaging a property which was to be demolished. At the Ontario Court of Appeal, the Court reversed the trial judge’s acquittal and allowed the Crown’s appeal. This case demonstrates that to secure a conviction under section 434, it is sufficient for the Crown to establish that only physical damage was caused to property. The Crown does not need to prove that the property in question depreciated in value as a result of the accused’s actions. In this case, the Ontario Court of Appeal indicates that the purpose of section 434 of the Code is to achieve public safety in the objective sense.

You can read the full decision here.

R v S. D. D., 2002 NFCA 18 (CanLII)

In R v S.D.D., the accused wanted to steal a bag of chips from a convenience store, which she could not afford to purchase. In an attempt to conceal the bag under her coat and let the air out of the bag of chips, she burned the side of the bag of chips with a cigarette lighter. Shortly after, the bag was in full flame. The accused stamped the fire out and left the premises, without relaying the incident to store personnel. Over a hundred thousand dollars worth of damage was caused to the store and its merchandise. The Court held that the accused could not be held liable for arson under either section 433(a) or 434 of the Code. This is because the Crown failed to prove that the accused was reckless to the possibility that the property would be damaged. For instance, the accused testified that she believed that she had put out the fire before she left the store.

You can read the full decision here.