Crown applied for ruling in jury trial that “arson with disregard for human life” pursuant to s. 433(a) of Criminal Code included offence of “arson causing damage to property”, pursuant to s. 434 of Criminal Code or, alternatively, amendment to indictment. Application dismissed. No Criminal Code provisions expressly provided that s. 434 was included in s. 433(a). Section 433(a) did not necessarily include commission of s. 434 offence. Parliament focussed on protection of human life without regard to property in s. 433(a) and on protection of property without regard to human life in s. 434. Crown did not use wording that amplified indictment to include essential elements of s. 434. Jury would be charged only in relation to s. 433(a), which included offence of mischief, but not in relation to s. 434. Enactment that created s. 433(a) offence made it clear that one of its essential elements was “intentionally or recklessly causing damage to property” by fire or explosion. Section 430(1)(a) of Criminal Code specified that anyone who “wilfully damages property” regardless of method used, commits mischief, and s. 429(1) of Code made it clear that “wilfully” includes both knowingly doing act and recklessness. Enactment that created s. 433(a) offence made it apparent that mischief formed essential constituent of that offence and fairly informed accused in every instance that he or she would have to meet not only s. 433(a) offence but also that included offence.
R. v. Sickles (Oct. 2, 2015, Ont. S.C.J., I.F. Leach J., File No. 11610) 124 W.C.B. (2d) 590.