



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Ravindhraraj, 2013
    ONCA 155

DATE: 20130314

DOCKET: C55820

Goudge, Simmons and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ashan Ravindhraraj

Appellant

Ashan Ravindhraraj, appearing in person

Vincenzo Rondinelli, acting as duty counsel

Susan Magotiaux, for the respondent

Heard: March 11, 2013

On appeal from the conviction entered on April 24, 2012
    and the sentence imposed on July 25, 2012 by Justice Anne Marie Molloy of the Superior
    Court of Justice, sitting with a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant pleaded guilty to two counts of mischief and was tried by
    a judge and jury on one count of arson.

[2]

In response to a question from the jury about causation, the trial judge
    instructed the jury for the first time on the included offence of attempted
    arson. In doing so, the trial judge described the
mens rea
for the
    included offence of attempted arson as including both actual intent and
    recklessness. Ultimately, the jury acquitted the appellant of arson but
    convicted him of attempted arson.

[3]

On appeal, duty counsel relied on
R. v. Sarrazin
, 2010 ONCA
    577, 259 C.C.C. (3d) 293, as establishing that the
mens rea
for
    attempted arson does not include recklessness.

[4]

In our view,
Sarrazin
establishes only that the issue of
    whether the
mens rea
for offences of attempt (other than attempted
    murder) includes recklessness is an unsettled area of the law. That said, we note
    that neither
Watt's Manual of

Criminal Jury Instructions
(Toronto: Thomson Carswell, 2005) nor
Canadian Criminal Jury Instructions
,
    4th ed. (Vancouver: The Continuing Legal Education Society of British Columbia,
    2012) refer to recklessness in the model instructions relating to attempt.

[5]

In light of this unsettled state of the law, the trial judge ought not
    to have given the instruction she did in the circumstances of this case. The
    trial judge raised the issue of attempted arson herself and did so only after
    her main charge and in response to a question from the jury. In the result,
    defence counsel had no realistic opportunity to research the elements of the
    included offence or to make submissions on whether the
mens rea
of the
    included offence includes recklessness. Equally important, defence counsel had
    no opportunity to address this theory of liability in his closing address to
    the jury. Given the appellants conviction for attempted arson, the procedure
    used requires a new trial.

[6]

In the circumstances, the appeal from the conviction for
    attempted arson is allowed, the conviction is set aside and a new trial is
    ordered.


