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| John L. Hill |
Arson involves more than just setting something ablaze. A careful reading of Parliament’s intention in enacting the arson sections was at the heart of Charles Daku’s trial in the Ontario Superior Court case of R. v. Daku, 2024 ONSC 4170. Daku lived alone in a high-rise apartment building in Brampton. He was alone in his small one-bedroom apartment on the morning of April 4, 2021. Surveillance cameras recorded Daku leaving his unit at 6 a.m. and again at 7:05 a.m. The video also recorded him waving a lit barbeque
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lighter across the elevator buttons at 7:11 a.m. and returning to his apartment. Within minutes, he left his apartment again and took the stairs to leave the building. Brampton Fire Department attended the building at 7:22 that morning to extinguish a fire to a lawn chair burning within the unit. The fire damaged the floor, and repairs and cleanup cost the landlord $1,700. Daku was charged with arson under s. 434 and mischief by intentionally causing damage to property contrary to s. 430(3) of the Criminal Code.
The sole issue at trial was Daku’s guilt in committing arson; it was conceded that a guilty verdict on the arson charge would also be the proof necessary to convict for mischief. The onus was on the Crown to secure a conviction by proving that setting the fire was not accidental or unintentional.
As set out in the Supreme Court judgment of Justice Michael Moldaver in R. v. Tatton, 2015 SCC 33, the actus reus is damaging property by fire. The mental element is the intentional or reckless performance of the illegal act. No additional knowledge or purpose is needed. No complex thought or reasoning processes are required. The criminal act of arson in s. 434 is the causing of damage to property. The fire is simply the mechanism by which the damage must be caused.
In assessing the issue of intent, the trier of fact must consider all surrounding circumstances. Was the fire set accidentally, negligently, recklessly or intentionally? The determinative question is not how the fire was started. Such analysis involves looking at the surrounding circumstances to determine whether it can be inferred that the accused intended to damage property or was reckless whether damage ensued or not. Recklessness occurs when one realizes the dangers but proceeds with the act anyway (R. v. Sansregret, [1985] 1 S.C.R. 570).
To prove intentionality, the Crown called fire investigator Clive Hubbard, who testified the fire was deliberately set by a person who exposed a flame to flammable objects. The only difficulty in Hubbard’s testimony was his repeated use in his report of the word “intentional.” He amended his report verbally while testifying on the stand by stating that the office of the fire marshal no longer uses the word “intentional” as that word connotes motive. The fire marshal does not assign a motive.
The trial judge, one suspects to the defence’s disappointment, refused to accept Hubbard’s conflation of the words “intention” and “motive.” Intention refers to the specific goal of the person lighting the fire; motive refers to the underlying reason for doing the act. Nonetheless, Hubbard’s evidence suggests that the fire setting was deliberate and not accidental.
Although the evidence was circumstantial, Daku was the only person in the unit when the fire was set, and the only reasonable inference was that Daku set his furnishings on fire intentionally or recklessly.
Had there been other reasonable theories, the case law established by R. v. Villroman, 2016 SCC 1000, would have required the Crown to disprove those alternatives. Here, the only rational conclusion is that Daku set the fire intentionally or recklessly, and for so doing, a conviction under both ss. 434 and 430 will be entered.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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