R. v. Ludwig, 2018 ONCA 885 - SummaryR. v. Ludwig, 2018 ONCA 885 (CanLII)
The Court of Appeal for Ontario, under Justice David Doherty's pen, unanimously upholds the factual conclusion of the trial judge that the accused set the fire that led to the accusations, and that it was not accidental. However, it partially grants the appeal because some of the offences were improperly interpreted, and could not apply. This judgement includes good reviews of the offences found at ss. 433(a) and 445(1)(a) of the Criminal Code, arson with disregard for human life, and injuring or endangering non-cattle animals.
The expert opinion taken with the accused's state of mind "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." [par. 20].
But then the convictions start to break down. Turning to the count of arson with disregard for human life, at s. 433(a) of the Criminal Code, the Court stresses the intent requirement that "the person knows that or is reckless with respect to whether the property is inhabited or occupied". The Court reversed the erroneous holding that police and firefighters who would be called to the scene could be said to occupy the property, error which both parties recognised [par. 27]. It then was left with the question of whether the accused himself, as the sole person to inhabit or occupy, could have the necessary intent simply by virtue of knowing he inhabited or occupied the property, or if as the appellant argued, "the inhabitant or occupier must be someone other than the appellant." [par. 27]
(The treatment of this question by the Court includes a great summary of the various arson offences: par. 31-37)
Rejecting the Crown's submission that "the offence created by s. 433(a) reaches property damaged by fire that is inhabited or occupied by anyone, including the arsonist" [par. 28], the Court notes that under such a reading "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 else’s property, at risk" [par. 40]. They "found nothing to suggest that Parliament, by enacting the mens rea requirement in s. 433(a), intended to protect arsonists from harming themselves." [par. 40] Indeed, such a conception would "effectively render 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" as "the mens rea w[ould] follow automatically from the actus reus." [par. 41]
The Court notes the absurd results such a reading of s. 433(a) would have: "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." [par. 42]
As such, the Court held that "[s]ection 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 accused’s actions as the most serious kind of arson." [par. 44]
After mentioning two questions left for other cases [par. 46 & 47], the Court finished its review of s. 433(a) by implicitly agreeing that the concept of "property" can be elastic ab initio: limited in some cases, expansive in others [par. 49]. Once the Crown selects which property it intended to cover in the count by describing it, however, it makes its bed subject to the principles applicable to count amendments. Indeed, "[t]he language used in the information required the Crown to prove that [the property described in the count] was inhabited or occupied by someone other than the appellant." [par. 49]
The Court refused to amend the count, since "the power to amend on appeal is discretionary, and it is exercised sparingly" [par. 52]. Though they "see no real prejudice to the appellant by the amendment proposed by the Crown" [par. 51], because "[t]he 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." [par. 52] This led the Court to acquit the appellant of this count [par. 53].
Turning to the charge of having injured a dog, contrary to s. 445(1)(a) of the Criminal Code, the Court provides a helpful summary of the essential elements:" To show that the appellant acted wilfully in injuring his dog, the Crown had to prove that:
 The appellant’s 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."
- • the appellant set the fire that generated the thick black smoke [“doing an act”];
- • the appellant’s act caused the dog’s 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.
(We note that par. 57-63 overall are a great discussion of the sometimes tricky question of wilful intent. Worth going back to!)
This aspect of the offence was not fully explored at trial during submissions or in the judgement [par. 62], and on the record the Court "cannot be satisfied that the trial judge either addressed the question of the appellant’s knowledge of the dog’s presence, or that, had he done so, he would have concluded that the evidence established the required knowledge." [par. 63]. Since there was some "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", the Court ordered a new trial on this count [par. 65].
Interestingly, given the fact that the appeal was partially denied and so the appellant remained guilty of a serious offence, the Court hints that to proceed with the new trial on this sole count might not be wise, "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." [par. 65]