juil. 13. 2015

Burning Down the House (Generally Speaking)

R. c. Tatton, 2015 CSC 33 (CanLII)

Paul Tatton had a drinking problem. On September 10, 2010, he grew upset and jealous that his ex-girlfriend would be away in Kingston. At the time, he was living in a guest room at her home. Mr. Tatton began to drink heavily that day, and continued drinking into the evening. Eventually, Mr. Tatton passed out. When he awoke in a drunken state, Mr. Tatton placed a pan with vegetable oil on the stove, set the burner to high, and left the house to get a coffee at Tim Horton’s. When he returned, the house was up in flames. Although the home was salvaged, the fire destroyed all of the contents inside [para 1-7].

Mr. Tatton was charged with arson causing damage to property under s. 434 of the Criminal Code. At trial, he insisted the fire was an accident. He thought he had set the temperature to low, and did not intend or foresee the consequences of his actions. A central issue at trial was whether Mr. Tatton had the requisite intent to commit the offence, and more particularly, if the court could consider his state of self-induced intoxication [para 8].

The trial judge determined that s. 434 was a specific intent offence, which allowed for the defence of intoxication to be raised. Mr. Tatton was acquitted. Although the majority of the Court of Appeal upheld his acquittal, Goudge J. dissented, and would have allowed the appeal and ordered a new trial. The Crown then appealed to the Supreme Court of Canada as of right: R v Tatton2015 SCC 33.

The main issue squarely before the Supreme Court was whether arson is a specific or general intent offence. This required the Court to undertake a review of how the distinction between these types of offences should be drawn. Ultimately, the Court adopted the Crown’s position, finding that arson is an offence of general intent. As a result, self-induced intoxication falling short of automatism is not available as a defence [paras 8-20. See generally R v Daviault,[1994] 3 SCR 63 and R v Bernard[1988] 2 SCR 833].

In writing for the majority, Moldaver J. recognizes that drawing the distinction between general and specific intent offences “continues to perplex counsel and trial courts alike…the task has proved formidable to those who have been schooled in criminal law, and daunting to those who have not” [paras 22, 35]. The Court highlights that legislative intervention is “sorely needed” to spell out the mental element of offences to address this confusion [paras 22, 25].

In beginning his analysis, Moldaver J. relies on R v Daviault as a starting point. Daviault outlines that distinguishing between general and specific intent offences is a two-step process:

First, there is an examination of the nature of the mental element and its relative importance to the crime in question.

Second, there is a consideration of the social policy sought to be attained by criminalizing the particular conduct [para 26, citing Daviault].

In Daviault, Sopinka J. specified that general intent crimes involve “the minimal intent to do the act which constitutes theactus reus”, and also tend to be “offences that persons who are drunk are apt to commit.” In contrast, specific intent crimes are those which “require a heightened mental element” and often include “the formation of further ulterior motives and purposes.” On the one hand, as more complex thought and reasoning processes are required for specific intent offences, it is more readily understandable how intoxication short of automatism may negate the require mental element for these types of crimes. On the other hand, allowing intoxication to operate as a defence to general intent crimes would contradict the social policies underlying them [paras 27-28].

Relying heavily on the principles set out in Daviault, Moldaver J. then offers the following further clarification in identifying the type of intent of a particular offence:

  • The starting point is determining the required mental element. This is an exercise in statutory interpretation, not a factual assessment [para 30].
  • The next question is determining whether the crime is one of general or specific intent. This is not a precise science – logic, intuition, and policy all play a part [para 31].
  • Existing jurisprudence may have already determined the appropriate classification of a particular offence. Where done so satisfactorily, there is no need to examine the question again [para 32].

Moldaver J. then turns to addressing two additional questions left unanswered by the court in Daviault [para 33]:

  1. What is meant by the “importance” of the mental element?
  2. Do policy considerations always come into play, or only if an examination of the mental element leaves the classification of the offence still unclear?

First, in addressing “the importance” of the mental element, Moldaver J. clarifies that what was meant was an assessment of “the complexity of the thought and reasoning processes that make up the mental element of a particular offence.”

General intent crimes require little mental acuity. They are straightforward, and do not require an intent to bring about certain consequences external to the actus reus [paras 34-26].

In contrast, specific intent offences involve a heightened mental element. While in Daviault the court limited its discussion to specific intent crimes where an ulterior motive is involved, Moldaver J. clarifies that an ulterior motive is not always required. Instead, there could be knowledge of certain circumstances or consequences, where the knowledge is the product of more complex thought and reasoning processes [paras 37-40].

Second, Moldaver J. writes that only if the analysis of the thought and reasoning processes required fails to yield a clear answer should policy considerations come into play. The nature of the mental element itself is already intertwined with policy considerations. If no clear answer is apparent, assessing whether alcohol consumption is habitually associated with the crime in question may be of assistance. If it is, then allowing an accused to raise self-induced intoxication as a defence would seem counterintuitive, and the offence is likely one of general intent. If it isn’t, then the offence would likely be one of specific intent.  Other residual policy considerations, such as the inclusion of a lesser included general intent offence and judicial sentencing discretion, may also come into play.

In the context of determining the intent requirement for arson causing damage to property, Moldaver J. makes the general observation that alcohol habitually plays a role in crimes involving violent or unruly conduct, and that alcohol also tends to be prevalent in crimes involving damage to property. While there are exceptions (such as murder), the Court concludes that it makes little sense from a policy perspective that self-induced intoxication is a defence available where people or property are harmed or endangered [paras 41-45].

Applying the legal framework set out in the Court’s decision, the Supreme Court ultimately concludes that the offence of arson causing damage to property is one of general intent. 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. The level of intent required would appear to be minimal. Having determined the intent requirement as being general, the Court then moves on to provide a thorough assessment of how the intent required under s. 434 should be made out, given it “can be a tricky exercise” [paras 48-54].

In Mr. Tatton’s case, the Supreme Court also determined that the trial judge’s erroneous conclusion that the offence was one of specific intent, and that intoxication was an available defence, played a material role in the outcome [see R v Graveline, 2006 SCC 16]. For these reasons, the appeal was allowed, the acquittal set aside, a new was trial ordered.

Comment:

Tatton is a two-fold decision. Not only does the Court expressly offer a detailed review of the framework for assessing how to distinguish between general and specific intent offences, the Court’s reasons for why s. 434 is a general intent offence is bound to have a broader impact on the intent requirement for the other arson-related provisions in the Criminal Code.

Further, while the Court did not set down a “general rule”, the express reference to the common intersection between alcohol use and crimes of violence was notable; suggesting that allowing self-induced intoxication to be raised in such cases would be illogical and counter-intuitive to good public policy.

SS