ARSON — DON’T BURN THE HOUSE DOWN

Burning Down the House

R. v. Tatton 2015 SCC 33

[1]          Mr. Tatton decided to cook some bacon.  He put some vegetable oil in a pan, turned the pan on high (although he thought it turned it low) and made a quick run to Tim Hortons to get a coffee and returned to a burning home. He was drunk.

[2]         At the trial and appeal, Mr. Tatton, was acquitted. Both the trial judge and majority of the appellate court concluded, albeit for different reasons, that ARSON was a specific intent offence and that Mr. Tatton did not have the requisite intent necessary to cause the damage he did.

[3]          The Supreme Court of Canada did not agree. They concluded that ARSON is a general intent offence.

[4]          They set about a formula for determining how to classify offences as being general of specific.

(1)    Determine the mental element of the offence in question (statutory interpretation);

(2)    Classify the offence as general or specific by:

(a) Consider existing jurisprudence, if the law is unclear or not yet settled then;

(b) The relative importance of the mental element – that is, the “the complexity of the thought and reasoning process that make up the mental element of a particular crime”.  The more sophisticated the reasoning process the more important the mental element and therefore the more likely a specific intent offence;

If after consideration of the above one cannot determine whether the offence is a specific or general intent offence then go onto consider:

(3)    Policy consideration. Is it a crime frequently associated with alcohol consumption? If yes, there is a strong rational for classifying the offence as a general intent offence.

SCC’S DECISION

[5]          The SCC decided that it was not necessary to resort to the policy consideration to dispose of the issue. Had it done so it would have further supported the position that ARSON is a general intent offence. The SCC concluded at para 48:

The actus reus is the damaging of property by fire. The mental element is the intentional or reckless performance of the illegal act — the causing of damage to property. No additional knowledge or purpose is needed. No complex thought or reasoning processes are required. On its face, the level of intent required for the offence would appear to be minimal.

[6]          A new trial was ordered.

Practical Application

[7]          When will someone be held criminally liable for causing damage to property by fire? The answer to this question as it pertains to recklessness is not clear cut. Recklessness is defined in Sansregret v. The Queen [1985] 1 SCR 570 as follows:

In accordance with well‑established principles for the determination of criminal liability, recklessness, to form a part of the criminal mens rea, must have an element of the subjective. It is found in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and who takes the chance.[emphasis added]

[8]          Let’s say you start a fire in a fire pit in your backyard. A gust of wind blows ash onto your house resulting in fire. In this scenario, the gust of wind was random, and liability should not follow. Contrast this with making a fire in a campground on a slightly windy day. Would liability attach if your camp fire got out of hand resulting in a bush fire or other property damage? What about a very windy day?