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 appellant’s 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 appellant’s 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 appellant’s 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 appellant’s 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 appellant’s 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 appellant’s 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 Crown’s 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 judge’s 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 judge’s 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 Crown’s 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 television’s 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. Minten’s evidence. He also recognized that he had to consider all of the evidence and not just Mr. Minten’s opinion when determining whether the Crown had proved that the appellant set the fire.

[16]       The appellant’s state of mind and his actions immediately before and after the fire started were consistent with the Crown’s 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 appellant’s 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. Minten’s 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 judge’s 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 judge’s 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 appellant’s 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 judge’s 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 appellant’s 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 appellant’s “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 appellant’s 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 judge’s 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 accused’s 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 judge’s interpretation, the accused may be liable under s. 433(a) for conduct which poses absolutely no risk to anyone else or to anyone else’s 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 one’s 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 else’s 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 appellant’s 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 one’s 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 one’s 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 Crown’s 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 else’s 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 judge’s 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 judge’s 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 else’s property or to anyone else’s 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 accused’s 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 appellant’s 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 Crown’s 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 Crown’s 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 appellant’s 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 appellant’s 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 appellant’s 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 judge’s 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 dog’s 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 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.

[60]       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.

[61]       There was no direct evidence of the appellant’s knowledge with respect to the dog. There was evidence that the dog was inside the unit, at the front door when the appellant’s 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 appellant’s 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 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.

[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.”