



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ludwig, 2018 ONCA 885

DATE: 20181106

DOCKET: C64193

Strathy C.J.O., Doherty and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mark Ludwig

Appellant

Cate Martell, for the appellant

Catherine V. Weiler, for the respondent

Heard: September 19, 2018

On appeal from the convictions entered by Justice Bruce E.
    Pugsley of the Ontario Court of Justice on June 29, 2017.

Doherty J.A.:


I



OVERVIEW

[1]

On June 30, 2015, police officers responded to a complaint from one of
    the appellants neighbours. The appellant owned and lived in Unit 101 of the
    multi-unit townhouse. The other units were occupied.

[2]

The police officers knocked at the front door of the appellants unit.
    No one answered, but the officers heard loud banging noises coming from inside
    the unit. One officer opened the door partially, and called out the appellants
    name. It was then that he observed flames inside the residence. He immediately contacted
    the Fire Department. About five minutes later, the appellant walked out of the
    front door, stopped, and lay down beside the door. The officers pulled him away
    from the building.

[3]

When the firefighters entered the appellants home, the living room was
    full of thick black smoke. They quickly located a small fire burning near the
    television. The firefighters extinguished the flames in a matter of seconds. They
    searched the rest of the unit and found the appellants dog unconscious in the
    upstairs bathroom. Fortunately, they revived the animal.

[4]

The appellant faced four charges at trial. He was convicted on counts one,
    two, and four, and he was acquitted on count three. There is no appeal from the
    acquittal and I will not make any further reference to that charge. Counts one,
    two, and four are set out below:

Count One

·

intentionally or recklessly causing damage by fire to his
    dwelling house, knowing that or being reckless with respect to whether the
    dwelling house was inhabited or occupied, contrary to s. 433(a) of the
Criminal
    Code
, R.S.C. 1985, c. C-46;

Count Two

·

intentionally or recklessly causing damage by fire to his
    dwelling house, which fire seriously threatened the safety and property of the
    residents situated in proximity to the appellants dwelling house, contrary to
    s. 434.1 of the
Criminal Code
; and

Count Four

·

did wilfully and without lawful cause endanger his dog, contrary
    to s. 445(1)(a) of the
Criminal Code
.

[5]

At trial, the appellant argued that the Crown had failed to prove that
    he set the fire. The appellant submitted that the Crowns expert accepted that
    the fire may have been caused by an electrical fault in the television. The
    trial judge, however, concluded that he was satisfied beyond a reasonable doubt,
    on the totality of the evidence, that the appellant had deliberately started
    the fire by setting a piece of paper stuck under the base of the television on
    fire. The fire consumed the television.

[6]

The trial judge imposed concurrent sentences of 12 months in jail and two
    years probation on counts one and two, and a concurrent 30-day sentence with
    two years probation on count four.


II



THE GROUNDS OF APPEAL

[7]

On appeal, the appellant challenged the trial judges finding that the
    appellant set the fire. If this finding does not stand, all of the convictions
    must be quashed. The appellant also raised other arguments that are specific to
    the convictions on counts one and four. He did not make any submissions
    specific to the conviction on count two. Therefore, if the finding that the appellant
    started the fire stands, the conviction on count two must be affirmed.

[8]

For the reasons that follow, I would allow the appeal on counts one and
    four. The conviction on count two stands, as does the sentence imposed on that
    count.

A.

the
    finding that the appellant set the fire

[9]

The appellant submits that the trial judges finding that he set the
    fire is unreasonable. Alternatively, he submits that the trial judge improperly
    put the burden on the appellant to point to evidence capable of supporting the
    reasonable inference that the fire was accidental. The appellant submits that
    he was entitled to an acquittal unless the Crown could disprove all reasonable
    possibilities other than guilt.

[10]

The
    court did not call on the Crown on this ground.

[11]

The
    Crowns case rested primarily, but not exclusively, on the evidence of Mr.
    Minten, the fire investigator. He testified that the fire pattern was
    consistent with either a fire caused by an electrical fault in the television,
    or a fire caused by igniting a piece of paper stuck under the television.

[12]

Mr.
    Minten believed that the fire had been started by igniting the paper under the
    television for three reasons. First, the television was unplugged when he saw
    it several hours after the fire. If the television was unplugged when the fires
    started, an electrical malfunction in the television could not have caused the
    fire. Second, the circuit breakers had not tripped as they would routinely do
    if the television had malfunctioned. Third, there was no evidence of arc
    beading on the copper wire in the televisions power cord. Mr. Minten would
    have expected to see arc beading if the fire originated in the television.

[13]

Mr.
    Minten agreed that it was possible that the television had been plugged in when
    the fire started, and that the firefighters had inadvertently unplugged it as
    they moved about in the dense black smoke in the living room. He also agreed that,
    in rare cases, the circuit breaker might malfunction and not trip in response
    to an electrical fault in the television. Mr. Minten had never come across a
    circuit breaker malfunction in any of his investigations. He observed that an
    electrical fault could explain the fire only if there were coincidental faults in
    both the television itself and in the circuit breaker, causing it to fail to
    trip.

[14]

In
    cross-examination, Mr. Minten testified that he had not examined the entire
    length of the copper wire for beading. He did not observe any beading on
    the part of the wire he did examine.

[15]

The
    trial judge accurately summarized Mr. Mintens evidence. He also recognized
    that he had to consider all of the evidence and not just Mr. Mintens opinion
    when determining whether the Crown had proved that the appellant set the fire.

[16]

The
    appellants state of mind and his actions immediately before and after the fire
    started were consistent with the Crowns theory that the appellant set the fire
    intending to end his life. There was overwhelming evidence that the appellant
    was very intoxicated and emotionally distraught when he returned home shortly
    before the fire started. No one else was in the home at the time. His
    girlfriend had left him a few hours earlier. The appellant had reacted very
    angrily. His girlfriend feared that the appellant might harm himself, but she
    felt that she needed to leave to protect herself from him.

[17]

The
    appellant had repeatedly told neighbours that he was going to kill himself that
    night. He was seen throwing furniture into the driveway shortly before the fire
    started. When the officers arrived at the house, they heard loud banging
    inside.

[18]

The
    appellant did not come out of the house immediately after the fire started. He
    walked slowly through the door about five minutes after the police arrived. He
    stopped outside near the door, and the officers had to drag him further away
    from his home. The appellant resisted any efforts to help him. He told the
    police that his life sucked and was all over.

[19]

The
    appellant points out that the means used to start the fire were not calculated
    to create the kind of fire that would likely lead to the appellants death. While
    the appellant may be correct in this observation, the suitability of the means
    chosen by the appellant to bring about his own death may shed little light on
    his intention given his intoxication and his irrational state of mind.

[20]

I
    agree with the appellant that Mr. Mintens opinion  which favoured the view
    that the fire was deliberately set, but did not exclude the possibility of an
    accidental electrical fire  could not support a conviction on its own.
    However, when combined with the evidence summarized above, it provided a firm
    basis upon which a reasonable trier of fact could conclude beyond a reasonable
    doubt that the appellant set the fire. The verdicts were not unreasonable.

[21]

The
    argument that the trial judge reversed the burden of proof seizes on isolated
    phrases in his reasons. It is important to recall that the trial judges
    reasons are not a self-instruction on the law. Nor are they intended to
    demonstrate to this court that the trial judge knows the law.

[22]

The
    trial judges reference to the absence of evidence to support certain
    inferences urged by the defence cannot be taken as an incorrect and oblique
    reference to the burden of proof. It is instead an observation by the trial
    judge, as the trier of fact, about the state of the evidentiary record. In
    fact, there was no evidence to support the factual inferences urged by the
    defence.

[23]

The
    trial judge recognized that he was obligated to consider the possibilities put
    forward by the defence in support of the submission that the Crown had failed
    to prove its case beyond a reasonable doubt. The trial judge accepted the
    possibility that the firefighters may have inadvertently unplugged the
    television when moving through the smoke-filled living room. He also accepted
    that it was possible that the television and the circuit breakers had simultaneously
    malfunctioned.

[24]

In
    concluding that the possibilities put forward by the defence did not leave him with
    any doubt as to how the fire started, the trial judge addressed those
    possibilities in the context of the rest of the evidence. He referred not only
    to the extensive evidence of the appellants state of mind immediately before
    the fire, but also to the incredible coincidence of both a defective
    television and a defective circuit breaker on the same circuit. In making the former
    observation, the trial judge was properly considering the inferences reasonably
    available on the entirety of the evidence. In making the latter observation,
    the trial judge was applying his common sense to the possibilities put forward
    by the defence.

[25]

A
    trial judge is presumed to know and apply the law. Nothing in the trial judges
    reasons overcomes that presumption. To the contrary, his reasons demonstrate a
    full appreciation of the evidence, the arguments advanced by counsel, and the
    formidable body of circumstantial evidence offered to prove that the appellant
    started the fire.

B.

the
    conviction on count ONE

[26]

Count
    one in the indictment alleged an offence contrary to s. 433(a) of the
Criminal
    Code
. That section required the Crown to prove that when the appellant
    intentionally or recklessly caused damage by fire to his townhouse, he knew or
    was reckless that the townhouse was inhabited or occupied. In holding that
    the appellant knew that his townhouse was occupied, the trial judge said:

Although Mr. Ludwig presumably knew that no other person
    occupied the home at the time, [the appellants girlfriend] having left, his
    personal occupation of the property and the fact that police and firefighters would
    of necessity respond to the fire and enter into the home, causes this event to
    fall within the section.

In referring to the appellants personal occupation,
    I take the trial judge to mean that the appellant was present in the unit when
    he started the fire. In addition, the appellant, who lived in the unit, clearly
    inhabited that unit when he started the fire.

[27]

The
    appellant and the Crown agree that the trial judge erred in holding that the
    police and firefighters called to the scene could be occupiers of the
    property for the purposes of s. 433(a). They disagree, however, on whether the
    appellants occupation or habitation of his unit at the time of the fire
    satisfied the occupation/habitation requirement in s. 433(a). The Crown
    supports the trial judges interpretation. The appellant submits that the
    inhabitant or occupier must be someone other than the appellant.

[28]

The
    Crown submits that the phrase inhabited or occupied in s. 433(a) is not
    qualified in any way. The Crown contends that, on a plain reading, the offence
    created by s. 433(a) reaches property damaged by fire that is inhabited or
    occupied by anyone, including the arsonist. The Crown points to other arson-related
    provisions, including s. 433(b) and s. 434.1, which specifically require the
    Crown to prove harm or risk of harm to another person. The Crown argues that
    the absence of those words in s. 433(a) must be viewed as a considered choice
    by Parliament.

[29]

The
    Crown argues that the purpose of s. 433(a) is to single out arsons that target properties
    that are occupied or inhabited because setting fires in those places poses
    special dangers to the community as a whole. The criminal law has always
    treated setting fire to a dwelling house as a particularly egregious form of
    arson: Courtney Stanhope
Kenny,
Outlines
    of Criminal Law
, 15th ed. (London, UK: Cambridge University Press, 1936), at
    p. 187. The Crown contends that it is the accuseds knowledge (or recklessness)
    that the property is inhabited or occupied by anyone  including the accused  that
    attracts criminal liability under s. 433(a).

[30]

The
    appellant submits that the words of s. 433(a) must be read in their entirety
    and having regard to the related arson provisions. He observes that, on the
    trial judges interpretation, the accused may be liable under s. 433(a) for
    conduct which poses absolutely no risk to anyone else or to anyone elses
    property. This interpretation, he argues, is not consistent with the thrust of
    the other arson provisions, which are aimed at protecting other persons and
    other persons property from harm. The appellant notes that, absent fraudulent
    intent, it is not an offence to burn ones own property.

[31]

Sections
    433, 434, and 434.1 were introduced into the
Criminal Code
in 1990 as
    part of a revision of the arson-related provisions:
An Act to Amend the
    Criminal Code [(arson)]
, S.C. 1990, c. 15, s. 1. All three crimes require
    the intentional or reckless causing of damage to property by fire. The sections
    are set out below.



Section 433

Section 434

Section 434.1



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.

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.

Every person who intentionally or recklessly causes damage
          by fire or explosion to property that is owned, in whole or in part, by that
          person is guilty of an indictable offence and liable to imprisonment for a
          term not exceeding fourteen years, where the fire or explosion seriously
          threatens the health, safety or property of another person.



[32]

Section
    433 is the most serious of the arson-related offences. It creates two crimes,
    both punishable by up to life imprisonment. Section 433(a), the relevant
    provision in this case, requires proof of two things:

·

intentionally or recklessly causing damage to property by fire;
    and

·

knowing that or being reckless with respect to whether the
    property is inhabited or occupied.

[33]

Section
    433(b), like s. 433(a), requires that the Crown prove that the accused
    intentionally or recklessly caused damage to property by fire. Unlike s.
    433(a), however, s. 433(b) contains no additional
mens rea
requirement. Instead, liability attaches under s. 433(b) if the fire causes
    bodily harm to another person. Clearly, s. 433(b) does not apply to bodily
    harm suffered by the arsonist.

[34]

Both
    crimes created by s. 433 are applicable regardless of who owns the property
    damaged by fire. A person can commit an offence under ss. 433(a) or (b) by
    causing damage by fire to property that he wholly owns.

[35]

Section
    434 creates the offence of intentionally or recklessly causing damage to
    property by fire. The provision creates a pure property offence that contains
    no additional
mens rea
requirement. The section does not require proof
    that anyone was harmed or endangered by the fire. Section 434 does not,
    however, apply if the person causing the damage by fire wholly owns the damaged
    property. A person who intentionally or recklessly causes damage by fire to
    property that he wholly owns does not commit an offence under s. 434.
[1]

[36]

Section
    434.1 requires proof that:

·

the accused intentionally or recklessly caused damage to property
    by fire;

·

the accused owned the property in whole or in part; and

·

the fire threatened the health, safety or property of another
    person.

[37]

Section
    434.1 applies to an accused who intentionally causes damage by fire to their
    own property, or to someone elses property, if that fire seriously threatens
    the health, safety, or property of another person. For example, in this case,
    count two alleged a breach of s. 434.1. The Crown relied on the evidence of the
    threat to the safety and property of the other residents in the townhouse
    complex to establish the appellants liability under s. 434.1. The threat posed
    to the police and firefighters who responded to the fire could also justify a
    conviction under s. 434.1.

[38]

Setting
    aside s. 433(a) for the moment, the provisions outlined above do not make it a
    crime to intentionally cause damage by fire to ones own property unless that
    fire causes bodily harm to another or seriously threatens the health, safety or
    property of another. The common law crime of arson and the arson-related
    offences in the
Criminal Code
prior to the 1990 amendments put the
    same limit on arson-related crimes. Absent fraudulent intent, or harm or risk
    of harm to others, burning ones own property was not regarded as arson prior
    to 1990: see
Kenny,
at pp.
    187-190;
R. v. Greenwood
(1864), 23 U.C.R. 250, at p. 252;
R. v.
    Rothe
, [1966] 4 C.C.C. 400, at pp. 402-404 (B.C.C.A.), leave to appeal
    refused;
R. v. Bernardi
(1974), 20 C.C.C. (2d) 523, at p. 529 (Ont.
    C.A.) (citing
Rothe
with approval), leave to appeal refused, [1974]
    S.C.R. xi;
Law Reform Commission of Canada
,
    Damage to Property  Arson
[Working Paper 36] (Ottawa: Ministry of Supply
    and Services Canada, 1984), at pp. 5-12.

[39]

Parliament
    can, of course, redefine criminal offences. Indeed, the 1990 amendments extensively
    changed various arson-related offences. However, the long-established contours
    of the arson-related crimes are part of the context in which the present
    provisions must be placed for interpretive purposes.

[40]

On the Crowns suggested reading of s. 433(a), the crime
    of arson would now capture persons who intentionally cause damage by fire to
    property wholly owned and solely inhabited by those persons, thereby putting
    themselves and their own property, but no one else and no one elses property,
    at risk. I have found nothing in the Parliamentary debates or other material
    relating to the 1990 amendments suggesting that, by enacting s. 433(a),
    Parliament intended to dramatically extend the crime of arson in this way.
[2]
More specifically, I have found nothing to suggest that Parliament, by enacting
    the
mens rea
requirement in s. 433(a), intended to protect arsonists
    from harming themselves. While criminal liability can serve a purely
    paternalistic purpose, criminal sanctions, especially those which can involve
    lengthy jail terms, are typically intended to protect society at large from
    harm or risk of harm to the person and property of others caused by the actions
    of an accused: see
R. v. Malmo-Levine
;
R. v. Caine
, 2003 SCC
    74, [2003] 3 SCR 571 at paras. 76-77, 104, 110-134.

[41]

The
    trial judges interpretation of s. 433(a) effectively renders the
mens rea
requirement superfluous in many situations in which a person starts a fire in
    property in which that person resides or is located at the time he starts the
    fire. In those cases, which are very common, the
mens rea
will follow
    automatically from the
actus reus
. Putting aside cases in which a person
    may be not criminally responsible by reason of mental disorder, or acting
    involuntarily for some other reason, it is difficult to conceive how an
    arsonist who is in the property when he sets fire to the property could not
    know that he was in the property. It is similarly difficult to imagine a case
    in which an arsonist who lives in the property he sets on fire could not know
    that the property is inhabited. I cannot accept that Parliament intended to
    identify a particular mental state as a precondition to liability for the most
    serious arson-related offence in the
Criminal Code
while at the same
    time intending that, in many cases, the mental state would flow automatically
    from proof of the prohibited act: see
R. v. Chandroga
, [1999] O.J. No.
    488, at para. 22 (Gen. Div.).

[42]

Also
    on the trial judges interpretation, the person who throws an incendiary device
    through a window does not occupy the property, and is not guilty under s.
    433(a) unless there are other occupants. If, however, the same arsonist goes
    inside and places the same incendiary device, that arsonist does occupy the property
    and is guilty under s. 433(a), even if there are no other occupants. I see no
    logic or policy that could justify a distinction for purposes of criminal
    liability between the two arsonists described above.

[43]

In
    my view, had Parliament sought to criminalize conduct whereby a person sets
    fire to their own property at no risk to anyone elses property or to anyone
    elses well-being, Parliament would have done so directly. Parliament would not,
    in my view, have done so indirectly by defining a crime so as to appear to
    include a
mens rea
requirement which, in many cases, would add nothing
    to the culpability of the conduct underlying the charge.

[44]

Section
    433(a) targets arsonists who endanger others by setting fires in places in
    which others live, or in places occupied by others. Knowledge or recklessness of
    the presence, or perhaps the potential presence, of others in those locations is
    what warrants characterizing the accuseds actions as the most serious kind of
    arson.

[45]

Subject
    to an alternative argument made by the Crown, I would hold that, as the Crown
    did not prove that the appellants unit in the townhouse was inhabited or
    occupied by anyone other than the appellant, the Crown had failed to prove the
    allegation in count one of the indictment.

[46]

Before
    turning to the Crowns alternative submission, I will make two additional
    observations arising out of the interpretation of s. 433(a). First, it is
    unnecessary to decide whether a property can only be inhabited for the
    purposes of s. 433(a) if there is someone actually in the property. The word
    inhabited generally means lived in. It may be that a property which serves
    as a residence can be inhabited even when the residents are not in the
    property. I leave that issue for a case in which it arises.

[47]

Second,
    it is not necessary to decide whether all persons who are in a property
    necessarily occupy the property for the purposes of s. 433(a). In most cases, a
    person who is in a property will properly be said to occupy that property.
    However, I would not foreclose the possibility that in some circumstances mere
    presence cannot be equated with occupation. Thus, on the facts in
R. v.
    Paskalis et al.
, 2004 ONCJ 372, at paras. 54-57, it may be that the person
    who unlawfully entered the property for the purpose of assisting in setting
    fire to the property could not be said to occupy the property for the purposes
    of s. 433(a).

[48]

I
    come back to the Crowns alternative submission. The Crown argues that even if s.
    433(a) requires that the property be inhabited or occupied by another, the
    property referred to in count one encompasses not only the appellants unit,
    but also the other townhouse units at the same address. If the property
    described in count one refers to the entire townhouse complex, the appellants
    liability under s. 433(a) is obvious. He knew that there were people in the
    other units.

[49]

It
    may be that count one in the information could have been worded to describe the
    property as including the entire townhouse complex. However, the information as
    laid described the property as a dwelling house owned by the said Mark Ludwig,
    the said dwelling house situated at 90 [street name redacted], Unit 101. The
    language used in the information required the Crown to prove that Unit 101,
    the dwelling owned by Mark Ludwig, was inhabited or occupied by someone other
    than the appellant.

[50]

The
    Crown did not seek any amendment to count one at trial. In fairness, the issue
    raised on appeal does not appear to have been raised at trial. The Crown
    submits that this court can amend the charge to conform with the evidence
    pursuant to s. 683(1)(g), as long as the amendment does not prejudice the
    appellant. The Crown argues that there is no prejudice to the appellant.

[51]

The
    Crown is correct that this court has the discretion to amend the count to
    conform with the evidence: see
R. v. Irwin
(1998), 38 O.R. (3d) 689 (C.A.).
    I also see no real prejudice to the appellant by the amendment proposed by the
    Crown.

[52]

However,
    the power to amend on appeal is discretionary, and it is exercised sparingly. I
    would not make the amendment proposed in this case. The conviction on count two,
    which remains in place, and for which the appellant received a concurrent
    sentence equal to the sentence imposed on count one, holds the appellant fully
    accountable for the danger his actions posed to others in the townhouse complex.
    I see no value in amending a count on appeal solely for the purpose of entering
    what is essentially a redundant conviction.

[53]

I
    would quash the conviction on count one and enter an acquittal.

C.

the
    conviction on count four

[54]

Count
    four alleged that the appellant did wilfully and without lawful cause endanger
    a dog, the property of Mark Ludwig. Section 445(1) does not prohibit endangering
    a dog, but it does prohibit injuring a dog. The trial judge treated count
    four as an allegation that the appellant wilfully injured his dog. The parties
    have treated it in the same way on appeal.

[55]

On
    the unchallenged evidence, the dog was rendered unconscious by the dense toxic
    smoke created by the fire. He was injured as a result of the appellants
    actions and would have died but for the intervention of the firefighter.

[56]

The
    parties made no specific submissions on this count at trial and the trial
    judges reasons are brief. He said:

The dog did suffer an injury and that injury was a foreseeable
    result of the actions caused by the defendant such that count number four under
    s. 445(1)(a) has been proven beyond a reasonable doubt.

[57]

The
    appellant submits that it was not enough to prove that the dogs injury was a
    foreseeable consequence of the fire. The appellant argues that foreseeability
    connotes an objective consideration of what the reasonable person would have
    foreseen. Section 445(1)(a), however, requires that the Crown prove that the
    appellant wilfully injured the dog. Wilfully, says the appellant, requires the
    Crown to prove that the appellant subjectively foresaw the risk of harm to the
    dog. This, in turn, required proof that the appellant knew that the dog was in
    the house. The appellant argues that the evidence of his extreme mental
    distress and intoxication supports the contention that he never turned his mind
    to the presence of his dog at the time he started the fire. More importantly, argues
    the appellant, the trial judge never addressed the question of whether the
    appellant knew his dog was in the house.

[58]

Wilfully
    is defined in s. 429(1):

Everyone who causes the occurrence of an event by doing an act
    or by omitting to do an act that it is his duty to do, knowing that the act or
    omission will probably cause the occurrence of the event and being reckless
    whether the event occurs or not, shall be deemed, for the purposes of this Part,
    wilfully to have caused the occurrence of the event.

[59]

To
    show that the appellant acted wilfully in injuring his dog, the Crown had to
    prove that:

·

the appellant set the fire that generated the thick black smoke [doing
    an act];

·

the appellants act caused the dogs injury [the occurrence of
    an event];

·

the appellant knew that it was probable that by setting the fire
    he would cause injury to the dog; and

·

the appellant was reckless as to whether the dog would be
    injured.

[60]

The
    appellants liability turned on whether he knew it was probable that the
    setting of the fire would injure the dog. The answer to this question depended on
    whether the appellant knew that the dog was in the house, or at least knew that
    it was probable that the dog was in the house.

[61]

There
    was no direct evidence of the appellants knowledge with respect to the dog.
    There was evidence that the dog was inside the unit, at the front door when the
    appellants girlfriend left the house earlier that evening. The dog was found
    in the upstairs bathroom. There was also evidence that the appellant was
    upstairs when the police first arrived at his unit in response to the complaint
    from the neighbour. The Crown theorizes that the appellant may have been
    putting his dog in the upstairs bathroom.

[62]

Unfortunately,
    neither counsel addressed the appellants knowledge of the presence of his dog
    in their submissions before the trial judge. The trial judge did not refer to
    the issue in his reasons. The issue is, however, raised in this court.

[63]

On
    my review of the record, I cannot be satisfied that the trial judge either
    addressed the question of the appellants knowledge of the dogs presence, or
    that, had he done so, he would have concluded that the evidence established the
    required knowledge.

[64]

The
    conviction on count four cannot stand.

[65]

There
    was, however, evidence upon which the trial judge could reasonably have found
    that the appellant knew that his dog was in the townhouse when he started the
    fire. An acquittal on count four would therefore be inappropriate. I would
    order a new trial recognizing that the Crown will no doubt take into account
    the overall outcome of this appeal in deciding whether to pursue a new trial on
    count four.


III



CONCLUSION

[66]

I
    would allow the appeal on count one, quash the conviction and enter an
    acquittal. I would allow the appeal on count four, quash the conviction and
    order a new trial. The conviction on count two stands, as does the sentence
    imposed on count two (12 months in jail, two years probation, and various
    ancillary orders).

Released: GRS NOV 6 2018

Doherty J.A.

I agree. G.R.
    Strathy C.J.O.

I agree. L.B.
    Roberts J.A.





[1]

Setting fire to ones own property for a fraudulent purpose is
    a discrete offence: see s. 435.



[2]
See Bill C-53, An Act to amend the Criminal Code (arson), 1st reading,
House
    of Commons Debates
, 34th Parl., 2nd Sess., Vol. 5 (14 December 1989), at p.
    6912; Bill C-53, An Act to amend the Criminal Code (arson), 2nd reading,
House
    of Commons Debates
, 34th Parl., 2nd Sess., Vol. 6 (15 February 1990) at pp.
    8371-8375; Bill C-53, An Act to amend the Criminal Code (arson), 3rd reading,
House of Commons Debates
, 34th Parl., 2nd Sess., Vol. 8 (4 May 1990) at
    pp. 11005-11009; Bill C-53, An Act to amend the Criminal Code (arson), 1st
    reading,
Debates of the Senate
, 34th Parl., 2nd Sess., Vol. 2 (8 May
    1990) at p. 1562; Bill C-53, An Act to amend the Criminal Code (arson), 2nd
    reading,
Debates of the Senate
, 34th Parl., 2nd Sess., Vol. 2 (9 May
    1990) at pp. 1578-1580, 1604, 1632; Bill C-53, An Act to amend the Criminal
    Code (arson), 3rd reading,
Debates of the Senate
, 34th Parl., 2nd
    Sess., Vol. 2 (5 June 1990), at p. 1827; House of Commons,
Minutes and
    Evidence of the Legislative Committee on Bill C-53, An Act to amend the
    Criminal Code (arson)
(March 7, 1990; March 15, 1990; April 10, 1990)
    (Chair: Fernand Robichaud); Canadian Bar Association,
Submission on Bill
    C-53, An Act to amend the Criminal Code (arson)
, (Ottawa: Canadian Bar
    Association, 1990).


