Springman v. The Queen, [1964] SCR 267

Supreme Court of Canada

Springman v. The Queen, [1964] S.C.R. 267

Date: 1964-03-23

Philip Springman Appellant;

and

Her Majesty The Queen Respondent.

1964: January 31; 1964: March 23.

Present: Taschereau C.J. and Fauteux, Ritchie, Hall and Spence JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN.

Criminal law—Arson—Whether bunkhouses mounted on wheels "buildings or structures" within the meaning of s. 374(1)(a) of the Criminal Code, 1953-54 (Can.), c. 51.

The accused was convicted of arson under s. 374(1)(a) of the Criminal Code. The case for the Crown was that he had counselled another man to set fire to his construction camp consisting of mobile or portable equipment, namely, inter alia, two bunkhouses and a combined bunkhouse and office. It was admitted that these were mounted on wheels for the purpose of ready movement from place to place. The Court of Appeal, by a majority judgment, held that, although some of the equipment was not a building or structure within s. 374(1)(a) of the Code, the bunkhouses fell within that meaning. The accused appealed to this Court, the appeal being limited as to the bunkhouses only.

Held: The appeal should be allowed and the conviction quashed.

The items in question were not buildings or structures within the meaning of s. 374(1)(a) of the Criminal Code. To fall within the section, a building or structure must be an unmovable property. In the present case the equipment was fundamentally movable property, without fixed or permanent foundations.

APPEAL from a judgment of the Court of Appeal for Saskatchewan1, affirming the conviction of the appellant for arson. Appeal allowed.

George J. D. Taylor, Q.C. and Calvin F. Tallis, for the appellant.

S. Kujawa, for the respondent.

[Page 268]

The Chief Justice:—The appellant Philip Springman, formerly of Nipawin, Saskatchewan, now of Vancouver, B.C., was on April 2, 1963, convicted by His Honour Judge Forbes at Regina on the following charge:

That he, the said Philip Springman, did on or about the 16th day of September, 1961, in the Davin District, Saskatchewan, without legal justification or excuse and without colour of right, unlawfully and wilfully set fire to the Nipawin Construction Company Limited camp, and did thereby commit arson, contrary to section 374(1)(a) of the Criminal Code.

The appellant was sentenced to imprisonment for a term of two years. The appellant appealed to the Court of Appeal against both the conviction and the sentence. Both appeals were dismissed.

The charge was laid under s. 374(1)(a) of the Criminal Code which says that every one who wilfully sets fire to a building or structure, whether completed or not, is guilty of an indictable offence and is liable to imprisonment for 14 years.

The evidence reveals that the Nipawin Construction Company Limited, owned by the appellant and his wife, had a substantial amount of equipment and that, during the summer of 1961, this equipment was situated near Davin. The company was engaged in supplying sand, gravel and crushed rock, and the equipment that was burnt was being made use of in this operation. It consisted of a crusher, loaders, trucks, bunkhouses and work-shops. It is the contention of the respondent that all this equipment was within the meaning of s. 374(1)(a) and was a building or structure, whether completed or not. The appellant contends that the Courts below erred in holding that this equipment should thus be classified because it was completely mobile, being either self-propelled or mounted on wheels and designed to be moved by power Units. It is therefore contended on behalf of the appellant that if he did set fire to this equipment, he should have been prosecuted under s. 374(2) of the Criminal Code which is in the following terms:

(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 is liable to imprisonment for five years.

The maximum punishment if the appellant is found guilty under s. 374(1)(a) is 14 years, and 5 years if convicted under s. 374(2).

[Page 269]

Parliament has carefully divided s. 374 in two groups, and I am satisfied that subs, (a) of s. 374 "a building or structure" covers immovable property and that the balance of subs. (1) also covers property which has a more considerable value than all that is contained in the residuary clause s. 374(2) (the whole subject to s. 375).

In the present case, as previously stated, the equipment to which the fire was set could be easily moved from one place to another. I think that fundamentally this equipment was movable property.

This I believe is the law in the common law provinces and in the province of Quebec. In the province of Quebec it has been decided by this Court in Dulac v. Nadeau in2:

Mais il y a plus. En effet, et quant au bâtiment de Nadeau,—et on pourrait ajouter, celui de Morin,—il s'agit clairement d'immeubles par nature suivant les dispositions de l'article 376 C.C. Sans doute, on peut bien, ainsi qu'on le fait remarquer dans Colin et Capitant, Cours Elémentaire de Droit Civil Français, XIè édition, tome 1, N° 922, ou dans les termes de Planiol et Ripert, Traité Pratique de Droit Civil Français (1926) tome 3, 75, rappeler que «les constructions volantes établies à la surface du sol pour quelques jours et réédifiées ailleurs, de place en place, telles que les baraques de foire, ne sont pas des immeubles parce que ces édifices légers n'ont pas de place fixe.» Mais les deux auteurs reconnaissent, aux mêmes pages, le principe que «pour qu'une construction soit immeuble, il n'est pas nécessaire qu'elle soit élevée à perpétuité, que les bâtiments construits pour une exposition sont immeubles quoiqu'ils soient destinés à être démolis.»

It will be easily realized by the reading of the opinions of these authors that the French law is quite similar to the English law, and that an immovable is something that is not to be forced from its place. It has the characteristics of things real or land, although constructions built on the surface of the soil for some length of time, and later rebuilt somewhere else, from place to place, are not immovables because these buildings have no fixed or permanent foundations.

I therefore agree with the reasons of my colleague Mr. Justice Hall, and I would allow the appeal and quash the conviction.

The judgment of Fauteux, Ritchie, Hall and Spence JJ. was delivered by

Hall J.:—The facts in connection with this appeal are set out fully in the judgment of Culliton C.J.S. and shortly are as follows: the accused was charged that he, the said

[Page 270]

Philip Springman, did on or about the 16th day of September, 1961, in the Davin District, Saskatchewan, without legal justification or excuse, and without colour of right, unlawfully and wilfully set fire to the Nipawin Construction Company Limited camp and did thereby commit arson contrary to s. 374(1)(a) of the Criminal Code. The accused was first tried by a judge and jury at which trial the jury were unable to agree upon a verdict. He then elected to be tried by a judge without a jury and was tried by His Honour Judge Forbes who found him guilty and sentenced him to a term of two years in a penitentiary.

The Nipawin Construction Company was a limited company, all of the shares of which had been held by the appellant Springman and his wife. The company owned a large amount of equipment, and, immediately prior to the fire on September 16, 1961, had been engaged in the production of crushed rock under a contract with Concrete Rock Products Limited of Regina. The operation was being carried out near Davin, Saskatchewan, and as production was too slow at that point, the appellant had given instructions to his foreman, Charles Wingert, to line up the camp for a move. The camp was lined up for movement so that everything could be moved quickly, and, while stationary, could be served by the central propane unit which supplied heat to the bunkhouses and electricity from the portable light plant. The machinery and equipment consisted of a propane truck, welding truck, a number of other trucks and power units, a house trailer with a half-ton truck, a rock crusher, a front end loader, a light plant, a cook car, two bunkhouses and a combined bunkhouse and office. It was admitted that the bunkhouses, cook car and house trailer were all mounted on wheels for the purpose of ready movement from place to place wherever rock crushing operations were to be carried on.

The fire which destroyed this machinery and equipment was set by Charles Wingert, the foreman, and Peter Mihailuk, an employee. The case for the Crown was that the appellant counselled Mihailuk to set the fire. Mihailuk gave evidence that he had been induced by the appellant to set the fire and he was to receive a new truck or car and $4,000 or $5,000 for so doing.

[Page 271]

Following his conviction by His Honour Judge Forbes, the appellant appealed to the Court of Appeal3 for Saskatchewan from both conviction and sentence. The grounds of appeal were as follows:

(1) That on the facts, including the facts as to source and credibility of the evidence of the commission of the crime and the connection of the accused therewith, the verdict is unreasonable, or cannot be supported, and therefore ought to be quashed;

(2) That as a matter of law there is no evidence of any offence against Section 374(1)(a) of the Criminal Code, since the "camp" referred to in the charge (being mobile or portable equipment consisting of a gravel crusher, trucks, trailers, bunkhouses, etc. … is not within the meaning of the words "a building or structure" appearing in the said Section 374(1)(a).

The Court of Appeal for Saskatchewan unanimously rejected the appeal under ground 1, holding that the learned trial judge's findings on the evidence should not be disturbed.

The Court, however, (Maguire J.A. dissenting) while accepting the argument that the trucks and power units, the rock crusher, the front end loader and the light plant were not buildings or structures within the meaning of s. 374(1)(a) of the Criminal Code, held that the two bunk-houses and the combined bunkhouse and office were buildings or structures within the meaning of the said section.

Maguire J.A. in his dissenting judgment held that, in addition to the items which the majority found were not "buildings or structures whether completed or not", the two bunkhouses and the combined bunkhouse and office were also not "buildings or structures whether completed or not" within the meaning of the said section on the grounds that:

… being designed and constructed upon a wheeled chassis, for the purpose of ready movement from place to place, and the temporary use in each said place, do not fall within "a building or structure".

The appeal to this Court is limited to the question as to whether the two bunkhouses and the combined bunkhouse and office were "buildings or structures" within the meaning of s. 374(1)(a) of the Criminal Code.

With respect, I think that Maguire J.A. was right in holding that the two bunkhouses and the combined bunkhouse and office were not buildings or structures within the meaning of the section in question.

[Page 272]

I accept that the term "structure" is not to be construed ejusdem generis with the term "building": London County Council v. Tann4. However, both "buildings" and "structures" do possess certain essential characteristics, some of which are common to both.

The case of London County Council v. Pearce5 appears to be in point. There the question whether a builders' office constructed of wood and roofed with zinc, and placed upon iron wheels for the purpose of enabling it to be wheeled about to any place where building operations were being carried on, was, when not required at any such place, kept in the builder's own yard and used as a pay-office for his men was a "wooden structure or erection of a moveable or temporary character" within the meaning of s. 13 of the Metropolis Management and Building Acts Amendment Act, 1882. Pollock B. said at p. 111:

No special meaning can be given to the word "structure" or the word "erection" as something distinct from a building; and it cannot be supposed that the legislature intended that everything which could in any sense be called a wooden building of a temporary character should be within the section. It is the duty of the magistrate to say whether a particular thing (I purposely use an indefinite expression) is within the definition. It is obvious that there are many things which, in a sense, would be wooden structures or erections, but could not possibly be held to come within the section, such as a dog-kennel or a van for removing furniture, which would be a much larger and heavier thing than such a pay-office as that in question. There are, therefore, many considerations which ought legitimately to influence the magistrate in coming to his decision. I think that in the present case the learned magistrate was perfectly right in holding that this pay-office was a part of a builder's plant; it is a thing which is moved from one set of buildings to another as occasion requires, and when not in use in the ordinary way it is at rest upon the builder's premises, and is used for the convenience of paying his men, which seems a very reasonable proceeding.

and Vaughan Williams J. said at pp. 112-3:

The magistrate was of opinion that primâ facie a carriage on wheels was not a wooden structure or erection within the meaning of the section. I do not mean to say that a man is to be allowed to evade the Act of Parliament by building on wheels what he intends to be a wooden structure, and then saying that it is not within the Act because it is on wheels. In all cases we must be guided by what I may call the intentions of the structure, and must inquire with what intention it was made. This seems clear from the case of Hall v. Smallpiece, 59 L.J. (M.C) 97, where it was held that a steam roundabout was not a wooden structure or erection within the meaning of the Act. Why was that held? Not because a thing on wheels cannot be within the section, but because when one looks into the intention with which the thing was made, it becomes plain that it

[Page 273]

was made for the purpose of locomotion and for erection in any place where it might be required.

In Cardiff Rating Authority v. Guest Keen, Limited6, Denning L.J. (as he then was), in discussing what is a "building or structure or in the nature of a structure" said at p. 31:

A structure is something which is constructed, but not everything which is constructed is a structure. A ship, for instance, is constructed, but it is not a structure. A structure is something of substantial size which is built up from component parts and intended to remain permanently on a permanent foundation, but it is still a structure even though some of its parts may be moveable, as, for instance, about a pivot. Thus, a windmill or a turntable is a structure. A thing which is not permanently in one place is not a structure, but it may be "in the nature of a structure" if it has a permanent site and has all the qualities of a structure, save that it is on occasion moved on or from its site.

We are not concerned here with anything "that is in the nature of a structure". We have to deal with items that are either "buildings" or "structures".

My view that the items in question in this appeal are neither "buildings" nor "structures" is strengthened by the judgment of the Manitoba Court of Appeal in Rex v. Arpin7, in which it was held that a railway freight car was not a "building" within the meaning of s. 461 of the Criminal Code of Canada, and by the judgment of the Supreme Court of Nova Scotia en banc in The King v. Levy and Gray8, in which it was held that the buffet of a parlour car on a railway was not a "building" within s. 461 of the Code. In this latter case Chisholm J. (as he then was) said at p. 232:

I have come to the conclusion that the buffet of a parlour car is not a building within the meaning of section 461 of the Criminal Code. A building is defined by Bouvier (p. 400) as "an edifice", erected by art and fixed upon or over the soil, composed of brick, marble, wood or other proper substance, connected together, and designed for use in the position in which it is so fixed.

The appeal should, therefore, be allowed and the conviction quashed.

Appeal allowed and conviction quashed.

Solicitors for the appellant: Goldenberg, Taylor, Tallis & Goldenberg, Saskatoon.

Solicitor for the respondent: S. Kujawa, Regina.