Regina v. Michelle V.* Regina v. Erin R.*
[Indexed as: R. v. V. (M.)]
39 O.R. (3d) 217
 O.J. No. 712
Docket Nos. C20663 and C20664
Court of Appeal for Ontario
Finlayson, Rosenberg and Goudge JJ.A.
February 20, 1998
*Application for leave to appeal to the Supreme Court of Canada filed June 30, 1998 and submitted to court September 8, 1998.
Criminal law — Causing damage to property by fire — “Damage” — Diminution in value of property does not have to be established in order to make out “damage” to property by fire for purposes of s. 434 of Criminal Code — Criminal Code, R.S.C. 1985, c. C-46, s. 434.
The two young persons were charged with intentionally or recklessly causing damage by fire to property contrary to s. 434 of the Criminal Code. The property in question was a vacant house which the owner intended to demolish to make a parking lot. The trial judge concluded that there was no damage caused by the accuseds as contemplated by s. 434 because there was no evidence that the property possessed any value which was diminished by the fire. The accuseds were acquitted. The Crown appealed.
Held, the appeal should be allowed.
The Crown is not required to show a reduction in the value of property in order to prove damage to that property; physical damage can be enough to satisfy this element of the offence under s. 434 of the Code. It is clear from the background to the amendment introducing the offence of causing damage by fire that Parliament intended to broaden the range of physical damage caught by the offence, not to confine the offence to circumstances where the fire has reduced the value of the property. Moreover, the offence has as its objective public safety as well as the protection of property. This objective would not be properly served if the offence were confined to fires that resulted in a reduction in the value of the property burned but excluded fires that caused significant physical harm to property where no reduction in value was demonstrated.
Therefore, the trial judge erred in his interpretation of the elements of the offence created by s. 434 of the Criminal Code and a new trial was ordered.
R. v. Monroe (1982), 8 W.C.B. 367 (Ont. Co. Ct.), not folld Other cases referred to R. v. Goulis (1981), 33 O.R. (2d) 55, 125 D.L.R. (3d) 137, 37 C.B.R. (N.S.) 290, 60 C.C.C. (2d) 347, 20 C.R. (3d) 360 (C.A.); R. v. Hasselwander,  2 S.C.R. 398, 152 N.R. 247, 81 C.C.C. (3d) 471, 20 C.R. (4th) 277, 14 O.R. (3d) 800n; R. v. Heywood,  3 S.C.R. 761, 120 D.L.R. (4th) 348, 174 N.R. 81, 24 C.R.R. (2d) 189, 94 C.C.C. (3d) 481, 34 C.R. (4th) 133; R. v. Verma (1996), 31 O.R. (3d) 622, 112 C.C.C. (3d) 155 (C.A.)
Statutes referred to
Criminal Code, R.S.C. 1985, c. C-46 (as am. 1990, c. 15, s. 1), ss. 433, 434, 434.1
Authorities referred to
Black’s Law Dictionary, 6th ed. (1990), “damage”
New Shorter Oxford English Dictionary (1993), “damage”
APPEAL by the Crown from acquittals on charges of causing damage to property by fire.
Miriam H. Bloomenfeld, for the Crown, appellant. Jean L. Richer, for respondent, Michelle V. Israel S. Gencher, for respondent, Erin R.
The judgment of the court was delivered by
GOUDGE J.A.: — The respondents Michelle V. and Erin R. were tried as young persons in the Ontario Court (Provincial Division) on a charge that they intentionally or recklessly caused damage by fire to property at 107 Hamilton Street, in Ottawa, contrary to s. 434 of the Criminal Code, R.S.C. 1985, c. C-46. They were acquitted because the trial judge found that there was no damage to the property, since there was no evidence that the property possessed any value which was diminished by the fire. Hence, the trial judge found that the Crown had failed to prove an essential element of the offence. The Crown appeals from these acquittals, arguing that the trial judge erred in adopting an unduly narrow definition of “damage” for the purposes of s. 434. For the reasons that follow, I have concluded that this is correct and that the acquittals must be set aside and a new trial directed.
Section 434 of the Criminal Code reads as follows:
434. 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. The relevant facts are simply stated. The property at 107 Hamilton Street was a vacant house owned by the Parkdale Baptist Church. The houses on either side of it were occupied. The church intended to demolish all three houses to make a parking lot but was waiting for the other two houses to become vacant as well, before doing so. In the early morning of August 28, 1994, the respondents allegedly entered the abandoned house at 107 Hamilton Street, poured gasoline on the carpets, the doors and some furniture cushions and then set fire to the property.
The fire spread quickly through the house. It caused the front window to explode. When the firefighters arrived they had to take most of the roof apart to control the fire. Photographs taken of the property and tendered at trial show very significant charring throughout the inside and on the outside of the house. However, the church representative testified that the demolition cost did not change as a result of the fire. The trial judge concluded that there was no damage caused by the respondents as contemplated by s. 434 because there was no evidence that the house possessed any value which was diminished by the fire. On this basis the respondents were acquitted.
The issue presented by this appeal is whether s. 434 requires that the Crown must show a reduction in the value of property in order to prove damage to that property or whether evidence of physical damage can be enough to satisfy this element of the offence. The appellant argues that the meaning of the term “damage” as it appears in s. 434 is clear. It argues that “damage” is not limited to a reduction in value of the property but may include also physical harm to the property. The respondents, on the other hand, argue that “damage” to property in s. 434 is clearly confined to a reduction in value of that property or a loss of its use. Alternatively, the respondents argue the applicability of the principle of statutory interpretation requiring that ambiguity in a penal provision be resolved in a manner most favourable to the accused and that, on this basis as well, “damage” to property means only a diminution in its value or usefulness. In my view, it is first necessary to determine whether the concept of causing damage by fire to property used by Parliament in s. 434 has a clear meaning. Cory J. described this task in R. v. Heywood,  3 S.C.R. 761 at p. 784, 94 C.C.C. (3d) 481 at p. 509:
When a statutory provision is to be interpreted, the word or words in question should be considered in the context in which they are used, and :read in a manner which is consistent with the purpose of the provision and the intention of the legislature: Elmer A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87; R. v. Hasselwander (1993), 81 C.C.C. (3d) 471,  2 S.C.R. 398, 20 C.R. (4th) 277. If the ordinary meaning of the words is consistent with the context in which the words are used and with the object of the act, then that is the interpretation which should govern. It is where this task results not in a clear meaning but in a real ambiguity that the interpretation most favourable to the accused must be taken: see R. v. Verma (1996), 31 O.R. (3d) 622 at p. 636, 112 C.C.C. (3d) 155 at p. 170 (C.A.). The appropriate application of this rule of strict construction was set out with great clarity by Martin J.A. in R. v. Goulis (1981), 33 O.R. (2d) 55 at pp. 59-60, 60 C.C.C. (2d) 347 at p. 351 (C.A.). This passage was quoted with approval in R. v. Hasselwander,  2 S.C.R. 398 at p. 413, 81 C.C.C. (3d) 471 at p. 478 as follows:
This Court has on many occasions applied the well-known rule of statutory construction that if a penal provision is reasonably capable of two interpretations, that interpretation which is the more favourable to the accused must be adopted: see, for example, R. v. Cheetham (1980), 53 C.C.C. (2d) 109, 17 C.R. (3d) 1; R. v. Negridge (1980), 54 C.C.C. (2d) 304, 17 C.R. (3d) 14, 6 M.V.R. 255. I do not think, however, that this principle always requires a word which has two accepted meanings to be given the more restrictive meaning. Where a word used in a statute has two accepted meanings, then either or both meanings may apply.
The Court is first required to endeavour to determine the sense in which Parliament used the word from the context in which it appears. It is only in the case of an ambiguity which still exists after the full context is considered, where it is uncertain in which sense Parliament used the word, that the above rule of statutory construction requires the interpretation which is the more favourable to the defendant to be adopted. In determining whether the concept of damage caused by fire to property used in s. 434 has a clear meaning and whether that meaning includes or excludes physical harm, it is helpful to begin with dictionary definitions.
The term “damage” is not defined in the Criminal Code. The definition in the New Shorter Oxford English Dictionary (1993) is: “harm done to a thing or (less usually . . .) person; especially physical injury impairing value or usefulness”. In Black’s Law Dictionary, 6th ed. (1990) it is defined as “loss, injury or deterioration caused by the negligence, design or accident of one person to another in respect of the latter’s person or property”. Neither definition confines the concept to a reduction in value.
An examination of the legislative history of s. 434 yields the same conclusion. This section was introduced into the Criminal Code by an Act to Amend the Criminal Code, S.C. 1990, 15, s. 1, which also repealed the predecessor sections relating to arson. One of those sections repealed was s. 433 which set out the main offence of arson. It reads as follows: 433(1) Every one who wilfully sets fire to
a building or structure, whether completed or not,
a stack of vegetable produce or of mineral or vegetable fuel,
a well of combustible substance,
a vessel or an aircraft, whether completed or not,
timber or materials placed in a shipyard for building, repairing or fitting out a ship,
military or public stores of munitions of war,
a crop, whether standing or cut down, or
any wood, forest, or natural growth, or any lumber, timber, log, float, boom, dam or slide, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
(2) Every one who wilfully and for a fraudulent purpose sets fire to personal property not mentioned in subsection
(1) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
The amendments were in part the product of a 1984 working paper published by the Law Reform Commission of Canada. It recommended that the concept of “sets fire to” be replaced by the concept of “damaging property by fire” because of case-law necessitating evidence of red heat in order to satisfy the former concept. At p. 30 of the working paper, the Commission said this:
With respect to damaging property by fire, it will no longer be necessary that the relevant property be set on fire in the sense of red heat being achieved. The emphasis will be on damage to, or destruction of, property even if this consists of scorching or blistering or blackening rather than red heat, as long as it results from a fire or explosion which a person has caused. In moving second reading of Bill C-53 that was to become the amending act, the Minister of Justice said the following in Parliament on February 15, 1990:
At present arson is defined as wilfully setting fire to specific types of property. The Law Reform Commission proposed to redefine arson as any conduct which causes an explosion or a fire which results in the destruction of or damage to property. We have adopted virtually all of these elements in the definition of the offence of arson.. . . . .
Case law has determined that the phrase [“sets fire to”] requires that there be actual combustion to commit arson. Mere scorching, for instance, is not enough even though it may constitute significant damage. Accordingly, to date some individuals who have set fire wilfully have been acquitted owing to the fact that the damage to the property had not reached the degree of combustion required by the case law. To rectify this the definition of the offence has been amended so that any damage to property caused by fire or explosion would constitute arson. This change will ensure that whether or not combustion actually occurs, arsonists will be called upon to account for the damage they cause.
I conclude that in introducing the concept of causing damage by fire to property as an element of the offence of arson, Parliament was intending to broaden the range of physical damage caught by the offence. It was not intending in any way to confine the offence to circumstances where the fire has reduced the value of the property.
I am supported in this conclusion by the nature of the general offence of arson itself. A fire once set can spread uncontrollably and of its own accord, creating risks to adjacent property, persons nearby and firefighters. The offence has as its objective public safety as well as the protection of property. This objective would not, in my view, be properly served if the offence were confined to fires that resulted in a reduction of value of the property burned but excluded fires that caused significant physical harm to property where no reduction in value was demonstrated. An examination of a companion section also introduced in 1990 makes this clear. Section 434.1 reads as follows: 434.1 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.
If the respondents are correct, this section would not encompass a fire that caused real physical harm to property and seriously threatened the health, safety or property of others if no reduction in the value of the burned property was shown. In my view, this would significantly understate Parliament’s objective in creating this offence.
Since the concept of causing damage by fire to property is of recent origin in the arson provisions of the Code, there is no jurisprudence that is of direct assistance on the issue in this appeal. The respondents, however, seek to rely on cases arising under the mischief sections of the Code where the term “damages property” is used. With one exception, however, none of these cases find that where there is real physical harm done to the property but no reduction in its value, the offence is not made out.
The one exception is R. v. Munroe (1982), 8 W.C.B. 367 (Ont. Co. Ct.), which was relied on by the trial judge in this case. In R. v. Munroe the accused had thrown a rock through a window of his employer’s warehouse, further shattering the glass which had already been broken by a prior rock. The accused was acquitted because of the finding that, since the window was already in need of replacement, the second rock did not diminish its value and therefore there was no damage.
As I hope will be clear, I would disagree with this result, at least so far as it might be applied to the concept of damage to property as found in s. 434 of the Code.
To summarize, in my opinion, it is clear that the term “damage” in s. 434 is simply to be given its ordinary meaning. An individual causes damage by fire to property when he causes harm by fire to that property. While this element of the offence may be proven by evidence of a reduction in value of the property it may also be proven by evidence of real physical harm to the property. In my view, the trial judge erred in finding that the “damage” element of the offence had not been proven because there was no evidence of the property having a value which was diminished by the fire when it was clear that the fire resulted in significant physical harm to the property.
Having found that an essential element of the offence was not proven, the trial judge, understandably, did not go on to make the necessary findings concerning the other elements of the offence. Hence, despite my conclusion as to his finding concerning the “damage” element of the offence, the substitution of a finding of guilt cannot be considered. Rather, there must be a new trial. I would therefore allow the appeal, set aside the acquittals and direct a new trial.