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).


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. MacCullouch, 2018 ONCA 913

DATE: 20181113

DOCKET: C61707

Feldman, Roberts and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ethan MacCullouch

Appellant

Ethan MacCullouch, acting in person

Danielle Robitaille, as duty counsel

Megan Petrie, for the respondent

Heard and released orally: November 6, 2018

On appeal from the summary conviction disposition entered
    on January 15, 2016 by Justice Dale Parayeski of the Superior Court of Justice,
    sitting without a jury.

REASONS FOR DECISION

[1]

The appellant seeks leave to appeal from the dismissal of his appeal
    from his summary conviction for criminal harassment.

[2]

The test for leave to appeal is onerous. Leave should be granted
    sparingly. Generally, the appellant must show that there is a clear error of
    law in the summary conviction appeal judges decision or that the appeal raises
    an issue of public importance beyond the particular case:  see
R. v. R.R.
,
    2008 ONCA 497, 90 O.R. (3d) (C.A.), at paras. 30-32 and 37.

[3]

In our view, the appellant has not met this test.

[4]

The appellant does not identify any error in the summary conviction
    appellate judges decision but focuses primarily on errors he said were made by
    the trial judge. The appellant challenges the factual findings and findings of
    credibility made by the trial judge. He submits that (1) the trial judge should
    not have permitted the complainant to testify about her belief that he poisoned
    her cat; (2) the complainants other evidence should not have been accepted
    because it was exaggerated; and (3) his actions did not amount to criminal
    harassment.

[5]

We are not persuaded by these submissions.

[6]

First, the trial judge did not rely on the complainants evidence about
    her belief concerning the death of her cat, and expressly held that there was
    no proof that the appellant had killed the complainants cat or anyone elses
    cat.

[7]

With respect to the complainants other evidence, it was open to the
    trial judge to accept some, all or none of her evidence. He was alert to the
    deficiencies in her evidence. The trial judge made no error in accepting the
    complainants evidence in support of the elements of the offence which he found
    were made out beyond a reasonable doubt.

[8]

Finally, we see no error in the trial judges determination that the
    appellants behaviour, as the trial judge found it to be, amounted to criminal
    harassment. Again, it was open to the trial judge to come to that conclusion
    based on the evidence that he accepted.

[9]

Accordingly, the motion for leave to appeal is dismissed.

K. Feldman J.A.

L.B. Roberts
    J.A.

Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Miller, 2018 ONCA 942

DATE: 20181126

DOCKET: C62134

Sharpe, Hourigan and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeffrey Miller

Appellant

Philip Campbell, for the appellant

Tanit Gilliam, for the respondent

Heard: November 19, 2018

On appeal from the conviction entered on March 10, 2016
    by Justice Kelly A. Gorman of the Superior Court of Justice, sitting with a
    jury.

REASONS FOR DECISION

[1]

The appellant appeals his conviction following a jury trial for
    importing cocaine and possession of cocaine for the purpose of trafficking.

[2]

The appellant, who operates a motorcycle business, returned to Canada
    from the United States driving a truck carrying several motorcycles. Upon
    inspection at the border crossing, Canadian Border Service Agency (CBSA) agents
    found 100 kg of cocaine secreted in the bed of the appellants truck. The
    central issue at trial was whether the appellant had knowledge of the cocaine
    secreted in his truck.

[3]

The appellant raises three grounds of appeal.

1.

Admissibility of the appellants statement

[4]

The appellant made an incriminating statement to the CBSA agents,
    effectively admitting knowledge that he was importing cocaine. His principal
    ground of appeal is that the trial judge erred in finding that the appellants
    s. 10(b) right to counsel under the
Canadian Charter of Rights and Freedoms
was not violated.

[5]

No video or audio recording was made of the conversation between the
    appellant and the agents. Two CBSA agents testified on the voir dire as did the
    appellant. While there was some variation in the evidence of the two agents,
    their versions of events were essentially the same. The trial judge accepted
    their evidence and rejected the evidence of the appellant.

[6]

After a sniffer dog detected the presence of drugs in the truck, the agents
    detained the appellant and his passenger on suspicion of smuggling. The agents
    handcuffed the appellant in the parking lot. At that point, the appellant was
    informally cautioned and advised of his right to counsel. He stated that he did
    not wish to speak to counsel.

[7]

Within several minutes of detaining him, the CBSA agents formally
    cautioned the appellant and advised him of his right to counsel a second time.
    A CBSA agent brought the appellant into a search room in the CBSA building
    following his detention. The agent removed the appellants handcuffs and read
    the appellant his rights from a prepared card. When asked if he wished to speak
    to a lawyer the appellant again answered no.

[8]

The CBSA agents then conducted a thorough search of the truck and located
    a package of suspected cocaine that was later identified as comprising 105 bricks
    of cocaine weighing a total of 100 kg. One of the agents then advised the appellant
    that he was under arrest for smuggling. For the third time, he was cautioned
    and advised of his right to counsel. The CBSA agent began to read him the
    standard caution and advice regarding his right to counsel. The appellant
    started to speak but the agent stopped him, told him to wait until he was
    properly advised of his rights and recommenced reading the rights and caution.
    When advised of his right to counsel, the appellant responded that at this point
    he would like to contact counsel. The CBSA agent then completed his reading of
    the caution. Immediately after the agent stopped reading the caution and
    without being prompted or questioned by the agent, the appellant began to
    speak.

[9]

According to the CBSA agents, the appellant stated that there were 100
    keys of coke in the bed of the truck. He asked the agents to retrieve a cell
    phone from the truck so that he could send a coded message. He also asked the
    agents to retrieve his wallet so that he could get his lawyers phone number. The
    appellant indicated that there could be a safety issue with his family and that
    he wished to cooperate with the investigation and provide the authorities with
    information. He also asked that the truck be moved so that it could not be
    seen. He offered to complete the delivery so the officers could identify who
    received the drugs. He told the agents that he had not been transporting drugs for
    a period of time but had brought this shipment because of a business downturn.

[10]

On
    the voir dire and in his trial evidence, the appellant denied that he stated
    there were 100 keys of coke in the truck. He testified that he told the CBSA
    agents that there was a 100 K out there for me to be worried about,
    referring not to 100 kg of cocaine but rather to his $100,000 investment in the
    truck and motorcycles.

[11]

The
    trial judge found that the appellant was repeatedly given his rights to
    counsel and appropriately cautioned as his jeopardy changed. She further found
    that the appellant had interrupted the CBSA officers as they read him his
    rights, that he was not diligent in pursuing speaking with counsel and that
    he was more concerned with his own safety, the movement of the truck, and the
    retrieval of a cell phone than with speaking with counsel.

[12]

Having
    ruled there was no violation of the appellants right to counsel, the trial
    judge did not consider whether the evidence should be excluded pursuant to s.
    24(2).

[13]

In
    our view, it was inapt of the trial judge to characterize this as a situation
    where the appellant was not diligent in pursuing his s. 10(b) right to speak
    with counsel. That situation arises where a detainee is advised of his right to
    counsel, is given an opportunity and the means to speak with counsel and fails
    to pursue that right in a timely manner: see
R. v. Ross
, [1989] 1
    S.C.R. 3, at p. 11.

[14]

However,
    we do not agree that by using the wrong words to describe what occurred, the
    trial judge fell into reversible error. In our view, what occurred may be more
    accurately described as follows: immediately upon being fully informed of his
    right to counsel for the third time, the appellant made a spontaneous and
    unprompted incriminating statement. As this court has held, if a detainee makes
    an un-elicited and spontaneous incriminating statement after being
    appropriately cautioned, there is no violation of s. 10(b):
R. v. Guenter
,
    2016 ONCA 572, 340 C.C.C. (3d) 351, at paras. 61-62.

[15]

As
    we have noted, the appellant attempted to speak while he was being cautioned.
    The CBSA agent made him stop so that the agent could ensure that the appellant
    was properly cautioned and advised of his right to counsel. It is clear on the
    record that once he had been read his rights, the appellant immediately
    launched into making a statement. There is no evidence that the CBSA agents
    began to question or interrogate the appellant before he made his statement. On
    the voir dire, while the appellant insisted that the statement he made was not
    what the CBSA agents described, he unequivocally described his statement as
    being spontaneous. He testified that as he was being cautioned he jumped up out
    of the seat that I was sitting in and I said to them, Listen, theres a 100 K
    out there for me to be worried about. He repeated this evidence at trial when
    he stated that he jumped up off the bench. In our view, the appellants
    evidence supports a conclusion that his statement was a spontaneous utterance
    made with full knowledge of his right to remain silent and speak to counsel.

[16]

The
    appellant concedes that the CBSA agents were under no legal duty to stop him
    from making his spontaneous statement. While the agents did not remain silent
    as the appellant made his statement, their evidence was that the questions they
    asked were simply to clarify what the appellant was saying. We recognize that
    the agents were under a duty to refrain from eliciting any incriminating
    evidence from the appellant until he had been given a reasonable opportunity to
    reach a lawyer or unequivocally waived his right to do so:
R. v. Suberu
,
    2009 SCC 33, [2009] 2 S.C.R. 460, at para. 38.

[17]

The
    appellant points to the fact that after he gave the incriminating statement,
    there was a 52 minute delay before the agents afforded him access to a
    telephone to contact counsel. Part of this time was taken to facilitate smoke
    and toilet breaks for the appellant. The appellant argues that this delay
    constituted a breach of his s. 10(b) right to counsel. He further submits that,
    as no causal relationship need be shown between the
Charter
breach and
    the incriminating statement for that statement to be obtained in a manner
    that infringes s. 10(b), the statement should be excluded pursuant to s. 24(2).

[18]

We
    agree with the respondent Crown that even if the clarifying questions and the
    delay in making it possible for the appellant to speak to counsel did amount to
    a breach of the appellants
Charter
rights and this breach meant that
    the prior spontaneous statement was obtained in a manner that infringed s.
    10(b), the evidence of the statement he made ought to be admitted under s.
    24(2).

[19]

R.
    v. Grant
, 2009 SCC 32,
[2009] 2 S.C.R. 353, at para. 92, holds that there is a presumptive general,
    although not automatic exclusion of statements obtained in breach of the
Charter
and that a three part test applies to determine whether admission of the
    evidence of a statement would bring the administration of justice into
    disrepute.

[20]

The
    first question is the seriousness of the
Charter
-infringing state conduct.
    We are satisfied that the CBSA agents endeavoured to comply with their
    obligation to advise the appellant of his rights. They advised him of his
    rights three times, and on the third occasion, insisted that he stop talking
    while they completed reading him his rights. As we have found, they did not
    breach the appellants s. 10(b) right to counsel before he made his
    incriminating statement. They delayed for 52 minutes in giving him access to a
    telephone to contact counsel after he had made his statement, but in all the
    circumstances, that was not a serious breach.  The clarifying questions were
    not aimed at eliciting incriminating evidence but were prompted by the
    immediacy of the situation and the appellants concern for his own and his
    familys safety.

[21]

The
    second question is the impact of the
Charter
-infringing state conduct
    on the
Charter
-protected interests of the accused. In
Grant
,
    the court stated that the impact on the accuseds
Charter
-protected
    interests may be reduced if it is clear that the detainee would have made the statement
    in question notwithstanding the
Charter
breach: at para. 96.

As
    David M. Paciocco and Lee Stuesser explain, the court in
Grant
thus
    made clear that the impact of the breach will be lessened when there is no
    causal link between the breach and the statement:
The Law of Evidence
,
    7th ed. (Toronto: Irwin Law, 2015), at p. 420.

[22]

In
    our view, the impact on the appellants rights was at the lowest end of the spectrum.
    The agents fully and repeatedly advised the appellant that he had the right to
    remain silent and that he had the right to contact counsel. Despite these
    cautions, the appellant spontaneously made his statement. The spontaneous
    statement preceded the clarifying follow-up questions and the 52 minute delay, and
    it is evident that the appellant would have made the statement notwithstanding any
    subsequent breaches. Accordingly, neither the 52 minute delay nor the
    clarifying questions had a meaningful impact on his
Charter
-protected
    interests.

[23]

The
    third question is societys interest in adjudication on the merits. This factor
    clearly favours admission. Since the first two inquiries provide only limited
    support for exclusion, this factor confirms that the evidence should be
    admitted: see
R. v. McGuffie
, 2016 ONCA 365, 131 O.R. (3d) 643, at
    para. 63.

[24]

For
    these reasons, we do not give effect to the appellants first ground of appeal.

2.

Willful Blindness

[25]

The
    appellants second ground of appeal is that the trial judge erred by leaving
    with the jury the possibility of convicting him on the basis of wilful
    blindness.

[26]

The
    trial judge instructed the jury that to convict the appellant of importing or
    possession for the purpose of trafficking, the jury had to be satisfied that
    the appellant actually knew the substance he was importing was cocaine. The
    trial judge added that a second way to prove this element of the offence was to
    prove that the appellant was aware of the need to make an inquiry about the
    nature of the substance, but deliberately failed to do so because he did not
    want to know the truth about it.

[27]

The
    appellant argues that only issue before the jury was actual knowledge and that
    there was no evidence from which the jury could conclude that the appellant had
    been wilfully blind.

[28]

We
    disagree with this submission. In our view, it fails to take into account the
    right of the jury to accept all, some or none of the appellants evidence. As
    the respondent points out, there was some evidence of the possible involvement
    of S.S., a friend of the appellant, with the cocaine. The appellant testified
    that he had asked S.S., who was the general service manager of a trucking
    company, to refit the truck and that S.S. or others at the company had so
    refitted the truck. The refitting made it possible to conceal the drugs in the
    bed of the truck. The appellant had been with S.S. in Florida before his return
    to Canada. S.S. had asked the appellant to bring back a phone to Canada and the
    appellant was suspicious about why S.S. had made this request. While there was
    no direct evidence that S.S. may have planted the drugs in the truck, the
    suggestion that he might have done so was an available inference from the
    evidence. Indeed, the appellant testified that he believed S.S. had planted the
    drugs in the truck. In our view, it was open to the trial judge on this record
    to conclude that there was a basis for a finding of wilful blindness.

[29]

The
    appellant further argues that the instruction was inadequate and that if wilful
    blindness was to be left with the jury a full instruction was called for.

[30]

While
    the instruction was brief, in our view, it gave the jury the essential elements
    of wilful blindness and the information it needed to consider it as a possible
    route to satisfying the required element of knowledge.

[31]

We
    note that the appellants trial counsel did not object, either to the inclusion
    of the wilful blindness instruction or to its adequacy.

[32]

For
    these reasons, we do not give effect to this ground of appeal.

3.

Reversal of the burden of proof

[33]

The
    appellants third ground of appeal is that the trial judge reversed the burden
    of proof in his re-charge on the elements of possession.

[34]

In
    her initial instruction, the trial judge told the jury in relation to the
    importing charge that they should have no difficulty in finding that the
    appellant was in possession of the cocaine when he crossed the border. The
    appellants trial counsel objected and asked for a re-charge making it clear to
    the jury that to prove possession, the Crown was required to prove knowledge.
    The Crown agreed that a re-charge was required. In her re-charge, the trial
    judge stated: If you are persuaded that he did not knowthose bricks were in
    the truck you must find him not guilty.

[35]

Read
    in isolation, that instruction was wrong and reversed the burden of proof.
    However, we are satisfied that there is no realistic prospect that it could
    have misled the jury as to the proper burden of proof. The trial judge repeatedly
    instructed the jury on the presumption of innocence and that the burden of
    proof rested with the Crown throughout. The trial judge gave the jury a clear
W.D.
instruction. Particularly telling is the fact that the appellants trial
    counsel, who had asked for the clarification and was well placed to assess its
    impact, made no objection but rather thanked the trial judge for making the
    clarification.

[36]

Accordingly,
    we do not give effect to this ground of appeal.

Disposition

[37]

For
    these reasons, the appeal from conviction is dismissed.

Robert J. Sharpe
    J.A.

C.W. Hourigan
    J.A.

G.T.
    Trotter J.A.