Abbas v. R, [1984] 2 SCR 526

Supreme Court of Canada

Abbas v. R., [1984] 2 S.C.R. 526

Date: 1984-12-13

Saeid Abbas (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

File No.: 17201.

1984: June 5; 1984: December 13.

Present: Dickson C.J. and Ritchie, Beetz, Estey, Chouinard, Lamer and Wilson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Causing a fire—Proof of offence—Charge of causing a fire by violating law in place where fire caused death or damage—Statutory presumption of fire being wilfully set if non-compliance with fire-prevention or fire-safety law—Whether or not presumption applicable—Criminal Code, R.S.C. 1970, c. C-34, s. 392(1)(a),(b), (2).

Appellant, the owner of a Toronto boarding house which burned down causing four deaths, failed to comply with the City’s fire prevention by-law and was charged with causing a fire under s. 392(1)(b) of the Code. The Crown alleged that the loss of life would not have occurred if appellant had complied with the by-law. The trial judge ruled, as a preliminary matter, that the “deeming” provision of s. 392(2) did not apply to a charge under s. 392(1)(b). Appellant was then arraigned and, as the Crown had planned to rely on the “deeming” provision, was acquitted in the absence of evidence. The Ontario Court of Appeal reversed the trial judge’s ruling and ordered a new trial. This appeal was heard without any adjudication on the merits.

Held (Estey J. dissenting): The appeal should be allowed.

Per Ritchie, Beetz, Chouinard and Wilson JJ.: Section 392(2) should not be construed as applying to s. 392(1)(b) since violation of a fire-prevention or fire-safety law (as provided for under s. 392(2)), is already covered by s. 392(1)(b) as a violation of any law in force where the fire occurred. To eliminate the distinction between fire-prevention and fire-safety laws and any other kinds of laws would defeat the clear intention of Parliament. Section 392(2), however, clearly extended s. 392(1)(a) from acts or omissions of the accused which were a direct cause of fire to circumstances in which the accused’s acts or omissions were an indirect cause of fire

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or of resultant death or destruction, provided a fire-prevention or fire-safety law had been violated.

The “plain meaning” rule of statutory interpretation supports an application of s. 392(2) to s. 392(1)(a) only as wilfulness is relevant only under that paragraph and not under s. 392(1)(b).

Per Dickson C.J. and Lamer J.: An ambiguity that persists after an analysis through the application of the canons of construction must be resolved in favour of the liberty of the subject. This rule applies not only to enactments creating offences but also to certain enactments curtailing the subject’s liberty in some other way and to enactments relieving in part the Crown of its usual evidentiary burden. Since the effect of s. 392(2) is to relieve the Crown in part of its traditional evidentiary burden and given the persistent ambiguity of the scope of this section, s. 392(2) must be given an interpretation favouring the liberty of the subject and so be limited to a charge under s. 392(1)(a).

[R. v. Robinson, [1951] S.C.R. 522; R. v. Alter (1982), 65 C.C.C. (2d) 381, applied; R. v. Rist (1976), 30 C.C.C. (2d) 119, overruled; Marcotte v. Deputy Attorney General for Canada, [1976] 1 S.C.R. 108; R. v. Noble, [1978] 1 S.C.R. 632, referred to.]

APPEAL from a judgment of the Ontario Court of Appeal (1982), 68 C.C.C. (2d) 330, allowing an appeal from an acquittal by Graburn Co. Ct. J. and ordering a new trial. Appeal allowed, Estey J. dissenting.

Derek A. Danielson, for the appellant.

David H. Doherty, for the respondent.

The reasons of Dickson C.J. and Lamer J. were delivered by

LAMER J.—I have read the reasons of my colleague Madame Justice Wilson and agree that s. 392(2) does not apply to a charge laid under s. 392(1)(b). Accordingly, I agree that this appeal

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should be allowed and the trial judge’s acquittal restored.

A reading of s. 392 discloses an ambiguity that both Martin J.A. of the Ontario Court of Appeal and my colleague attempt to resolve by seeking to identify the purpose of the relevant legislation.

I must admit, with respect, that, while I find merit in both approaches I find none sufficiently compelling to permit me to state with any certainty which, in my humble opinion, is the right one.

Given the ambiguity which persists after my own analysis of the section through an application of the canons of construction of statutes, I resolve the ambiguity by resorting to the rule enunciated by Cartwright J. (as he then was) in R. v. Robinson, [1951] S.C.R. 522, where he said, at p. 536:

In my opinion if the words of an enactment which is relied upon as creating a new offence are ambiguous, the ambiguity must be resolved in favour of the liberty of the subject, but whether or not such ambiguity exists is to be determined after calling in aid the rules of construction.

See also Marcotte v. Deputy Attorney General for Canada, [1976] 1 S.C.R. 108, at p. 115.

This rule does not apply only to enactments creating offences, but also to certain enactments curtailing in some other way the subject’s liberty, as was the case in Marcotte, supra, and to enactments relieving in part the Crown of its usual evidentiary burden. Such was the case in R. v. Noble, [1978] 1 S.C.R. 632. In that case, the Court was called upon to interpret s. 237(1)(f) of the Criminal Code, which creates a presumption in favour of the Crown following the production of a certificate of an analyst in impaired driving cases.

Ritchie J., speaking for the Court, addressed the matter as follows, at p. 638:

The effect of s. 237 both before and after the amendment is to establish the conditions under which the certificate of a qualified technician is admissible, without further evidence, as proof of the proportion of

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alcohol in the blood of the accused. These provisions are obviously designed to assist the Crown in proving its case, and as they serve to restrict the normal rights of the accused to cross-examination and saddle him with the burden of proving that the certificate does not accurately reflect his blood alcohol content at the time of the alleged offence, they are to be strictly construed and, where ambiguous, interpreted in favour of the accused.

The effect of s. 392(2) is also to relieve the Crown of part of its traditional evidentiary burden in criminal prosecutions, and should, given this persistent ambiguity as to the scope of its application, be given the interpretation which favours “the liberty of the subject”, which requires that its application be limited to a charge under s.392(1)(a).

The judgment of Ritchie, Beetz, Chouinard and Wilson JJ. was delivered by

WILSON J.—This appeal raises a pure question of statutory interpretation of s. 392 of the Criminal Code. The section reads as follows:

392. (1) Every one who causes a fire

(a) wilfully, or

(b) by violating a law in force in the place where the fire occurs,

is, if the fire results in loss of life or destruction of or damage to property, guilty of an indictable offence and is liable to imprisonment for five years.

(2) For the purposes of this section, the person who owns, occupies or controls property in which a fire that results in loss of life or destruction of or damage to property originates or occurs shall be deemed wilfully to have caused the fire if he has failed to comply with any law that is intended to prevent fires or that requires the property to be equipped with apparatus for the purpose of extinguishing fires or for the purpose of enabling persons to escape in the event of fire, and if it is established that the fire, or the loss of life, or the whole or any substantial portion of the destruction of or damage to the property would not have occurred if he had complied with the law.

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The facts

The facts giving rise to the problem are that the appellant, the owner of a boarding house in Toronto, failed to comply with the City’s fire prevention by-law with respect to fire extinguishers, smoke detectors and fire escapes. The boarding house burned down on October 5, 1980 and four people died in the fire. The Crown alleged that this loss of life would not have occurred if the appellant had complied with the by-law.

The appellant appeared before Graburn Co. Ct. J. charged on the following indictment:

SAEID ABBAS stands charged that he, on or about the 5th day of October in the year 1980, at the Municipality of Metropolitan Toronto in the Judicial District of York, caused a fire at 24 Caroline Avenue by violating a law in force at 24 Caroline Avenue, Toronto, Ontario, to wit: City of Toronto By-Law #73/68, which fire resulted in the death of Frederick James Narapecka and Ernie Cullen and Arthur Burton and Herbert Rose, contrary to the Criminal Code.

Rather than adducing proof of the Crown’s case and then arguing the legal issues on a defence motion to dismiss, the parties requested the court to rule as a preliminary matter on the legal issue of whether the “deeming” provision of s. 392(2) of the Criminal Code applies on a charge under s. 392(1)(b). Although Judge Graburn was not completely satisfied with this procedure, he complied with the request and, following the decision of Borins Co. Ct. J. in R. v. Alter (1982), 65 C.C.C. (2d) 381, ruled that it did not. The appellant was then arraigned; the Crown which had proposed to rely on the “deeming” provision conceded that it had no evidence to offer, and the appellant was acquitted.

The Crown appealed to the Ontario Court of Appeal which reversed Judge Graburn and ordered a new trial. The appellant filed notice of appeal to this Court pursuant to s. 618(2)(a) of the Code. Accordingly there has not yet been an adjudication on the merits.

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Section 392 forms part of Part IX of the Code entitled “Wilful and Forbidden Acts in respect of Certain Property”. Both “property” and “wilfulness” are defined terms for purposes of this part of the Code, the definitions being contained in ss. 385 and 386(1) respectively. In the absence of the deeming provision of s. 392(2), the word “wilfully” in s. 392(1)(a) would be accorded the meaning given to it in s. 386(1). It seems clear therefore that s. 392(2) applies to a charge laid under s. 392(1)(a).

In the present case, however, the indictment does not allege that the appellant “wilfully” caused a fire. It alleges that he “caused a fire” by “violating a law in force”. It can be a good indictment, therefore, only in respect of an offence under s. 392(1)(b). Ironically, the appellant would not seem to have a case if the indictment had charged him with “wilfully” causing a fire even though it is apparent that in the ordinary sense of the word his action or inaction was neither wilful nor a cause of the fire.

2. Interpretation of section 392

The question of statutory interpretation posed on this appeal has already been considered on two separate occasions, first by Laycraft J. (as he then was) of the Alberta Supreme Court in R. v. Rist (1976), 30 C.C.C. (2d) 119, and then by Borins Co. Ct. J. in Alter, supra. Whereas the trial judge in Abbas relied on Judge Borins in holding that s. 392(2) could logically be said to apply only to the offence set out in s. 392(1)(a), the Court of Appeal adopted the reasoning of Mr. Justice Lay craft and held the “deeming” provision equally applicable to the offence created in s. 392(1)(b).

In the reasons given by Martin J.A. in the Court of Appeal (now reported at (1982), 68 C.C.C. (2d) 330) stress was laid upon the word “caused” in s. 392(2). The subsection was perceived as designed to provide a connection between the violation of “a law in force in the place where the fire occurs” (s. 392(1)(b)) and any property damage or deaths resulting from the fire even although the violation

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could not be said to have actually caused the fire. This view is most forcefully put forward by Lay craft J. in Rist when he states at pp. 120-21:

I am of the view, however, that s-s. (2) of s. 392 is designed to give a statutory definition of causing a fire “by violating a law in force in the place where the fire occurs”. A person is deemed “wilfully to have caused the fire” if the violations of the local law are of the class described in s-s. (2). Without such a definition, many of the acts described in s-s. (2) would not, in the ordinary meaning of the term, be such as to “cause” a fire but would merely make its results more calamitous. The statutory definition given relates to s-s. (1)(b) of s. 392.

With respect, it is difficult to see any meaningful distinction between paras, (a) and (b) of s. 392(1) if this view is correct. Yet a distinction was clearly intended. By s. 392(2) Parliament has clearly extended the offence under s. 392(1)(a) from acts or omissions of the accused which are the direct cause of a fire to circumstances in which the accused’s acts or omissions are an indirect cause of a fire or of the resultant death or destruction. Those acts or omissions, however, have to constitute violations of fire-prevention or fire-safety laws. Section 392(1)(b), on the other hand, makes it an offence to cause a fire by violating any law in force in the place where the fire occurred if the fire results in death or destruction. To construe s. 392(2) as applicable to s. 392(1)(b) would make no sense. The violation of a fire‑prevention or fire-safety law is a violation of “a law in force in the place where the fire occurs”. It is, in other words, already covered in s. 392(1)(b). I would respectfully agree with Judge Borins where he says at p. 387 of Alter:

The mischief to which s. 392(1)(a) and s. 392(2) is directed is [non-]compIiance with fire‑prevention and fire-safety legislation.

The view adopted by the Court of Appeal in the present case eliminates the distinction between

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that type of legislation and any other. In this respect it defeats the clear intention of Parliament.

While the respondent correctly asserts that in interpreting any statutory provision, including one in the Criminal Code, one must begin with the proposition that words are to be given their plain meaning (R. v. Robinson, [1951] S.C.R. 522), the trial judge’s interpretation seems more consonant with the language used than the interpretation of the Court of Appeal. The fact that under s. 392(2) violating certain fire safety laws is made synonymous with “wilfully” causing the fire would appear to be relevant only to a charge under s. 392(1)(a). As the offence set out in s. 392(1)(b) requires no element of wilfulness, the relevance to it of a subsection whose purpose is to deem to be wilful acts which are otherwise not wilful is, to say the least, dubious. I do not believe, therefore, that the respondent can derive much comfort from the plain meaning rule in this case.

As Judge Borins noted in Alter, the intentional setting of a fire (commonly referred to as arson) is dealt with in ss. 389 and 390 of the Code and the reckless setting of a fire is covered by the criminal negligence sections 202, 203 and 204. Section 392 applies to cases other than arson and to conduct which does not constitute criminal negligence. The offence in s. 392(1)(b) is made out where the accused has caused the fire itself by violating a law in force in the place where the fire occurred i.e. any law including the entire spectrum of non-fire related laws. By contrast, the criterion for culpability under s. 392(1)(a) is satisfied where the accused has wilfully caused the fire or where, by virtue of s. 392(2), he is deemed to have wilfully caused the fire. He is deemed to have wilfully caused the fire if he has breached a fire‑prevention or fire-safety law and the death or destruction (but not necessarily the fire itself) would not have occurred if such law had been complied with.

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Crown counsel put a great deal of emphasis on the opening words of s. 392(2), submitting that the phrase “For the purposes of this section” evidences an intention on the part of Parliament to apply the “deeming” provision to both offences created by the section. In support of this submission he directed the Court’s attention to sections such as s. 320(4) of the Code which deems property obtained by means of an N.S.F. cheque to have been obtained by false pretenses for purposes of s. 320(1)(a). Were it not for the express reference to s. 320(1)(a), the respondent argued, such a “deeming” provision would necessarily apply to all of the offences created by s. 320 (i.e. those created by ss. 320(1)(b), (c) and (d) as well). By analogy, the argument went, the s. 392(2) “deeming” provision would contain an express reference to s. 392(1)(a) if it were intended to apply only to that subsection.

What this argument overlooks, however, is that unlike s. 392 the various paragraphs of s. 320(1) are drafted without reference to one another or to any words in the section and as such are completely self-contained. There is no need to refer to the rest of the section in order to make sense of s. 320(1)(a). It stands on its own feet. Accordingly, the “deeming” provision of s. 320(4) can coherently be applied to that paragraph alone. Paragraph (a) of s. 392(1), on the other hand, cannot coherently be read without reference to the other language of s. 392(1). It takes the other language to constitute the offence. Therefore, regardless of the intent underlying the “deeming” provision of s. 392(2), the draftsman could not possibly have said “For the purposes of paragraph (a)”. The structure of s. 392 requires the opening words “For the purposes of this section” even if subsection (2) were intended to apply only to para. (a). No assistance is to be gained therefore from this phraseology.

3. Conclusion

It seems to me that the interpretation put Upon s. 392 by the Court of Appeal in overturning the decision of Judge Graburn has the effect of all but eliminating any distinction between the offences created by s. 392(1)(a) and s. 392(1)(b). The

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former is effectively subsumed under the latter. In view of the evident Parliamentary intention to create two distinct offences, one arising from certain violations of fire-prevention or fire‑safety laws and the other from violations of other types of law, such an interpretation seems inappropriate. In addition, the position put forward by the respondent and adopted by the Court of Appeal does not appear to be persuasive as a matter of pure statutory interpretation. In deeming certain fires to have been wilfully caused by the accused, s. 392(2) must logically be applicable only to the s. 392(1)(a) offence as the criterion of wilfulness is relevant only to that offence and not to the offence created by s. 392(1)(b).

Since the appellant was charged under s. 392(1)(b), and the Crown has conceded that it cannot establish the requisite causal connection between the by-law violations and the fire if s. 392(2) is inapplicable, the appeal must be allowed, the judgment of the Court of Appeal set aside, and the trial judge’s acquittal of the appellant restored.

The following are the reasons delivered by

ESTEY J. (dissenting)—I would dismiss the appeal for the reasons given by Martin J.A. in the Court of Appeal of Ontario.

Appeal allowed, ESTEY J. dissenting.

Solicitor for the appellant: Derek A. Danielson, Toronto.

Solicitor for the respondent: Attorney General for Ontario, Toronto.