R. v. Tatton (P.F.), (2015) 332 O.A.C. 175 (SCC)

• Judge: McLachlin, C.J.C., Abella, Rothstein, Cromwell, Moldaver, Wagner and Gascon, JJ.
• Court: Supreme Court (Canada)
• Case Date: June 04, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 332 O.A.C. 175 (SCC);2015 SCC 33;323 CCC (3d) 166;332 OAC 175;JE 2015-985;472 NR 330;386 DLR (4th) 193;[2015] CarswellOnt 8076;[2015] 2 SCR 574;[2015] EXP 1783;AZ-51181884;[2015] SCJ No 33 (QL);122 WCB (2d) 218

R. v. Tatton (P.F.) (2015), 332 O.A.C. 175 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] O.A.C. TBEd. JN.016

Her Majesty the Queen (appellant) v. Paul Francis Tatton (respondent) and Criminal Lawyers' Association (Ontario) (intervener)

(35866; 2015 SCC 33; 2015 CSC 33)

Indexed As: R. v. Tatton (P.F.)

Supreme Court of Canada

McLachlin, C.J.C., Abella, Rothstein, Cromwell, Moldaver, Wagner and Gascon, JJ.

June 4, 2015.

Summary:

The accused, while intoxicated, started a fire at his ex-girlfriend's house. The trial judge acquitted the accused of arson. The Crown appealed, submitting that the trial judge erred in admitting and considering evidence of intoxication in determining whether the accused had the required intent for the offence because arson was an offence of general intent.

The Ontario Court of Appeal, Goudge, J.A., dissenting, in a judgment reported (2014), 319 O.A.C. 10, dismissed the appeal. Arson was a specific intent offence. The trial judge did not err in considering evidence of the accused's intoxication in considering whether the Crown proved that the accused had the necessary intent to commit arson. Goudge, J.A., would have allowed the appeal and ordered a new trial on the basis that arson was a general intent offence and that, accordingly, evidence of intoxication was inadmissible. The Crown appealed.

The Supreme Court of Canada allowed the appeal and set aside the acquittal. Arson was a general intent offence, precluding intoxication short of automatism being raised as a defence. Since the trial judge's critical fact findings were tainted by his belief that self-induced intoxication was relevant to the issue of intent, a new trial was required.

Criminal Law - Topic 33

General principles - Mens rea or intention - Crimes of specific intent v. crimes of general or basic intent - Section 434 of the Criminal Code made it an offence to intentionally or recklessly cause damage to property by fire - At issue was whether the offence of arson was a specific intent offence (defence of intoxication available) or one of general intent (intoxication short of automatism not a defence) - The distinction between specific and general intent offences was governed by R. v. Daviault (SCC 1994) - The main considerations were the "importance" of the mental element and the social policy underlying the offence - The Supreme Court of Canada, noting the confusion that still existed on this issue, explained Daviault to bring clarity to the test - The court stated that "specific intent offences contain a heightened mental element. That element may take the form of an ulterior purpose or it may entail actual knowledge of certain circumstances or consequences, where the knowledge is the product of more complex thought and reasoning processes. Alternatively, it may involve intent to bring about certain consequences, if the formation of that intent involves more complex thought and reasoning processes. General intent offences, on the other hand, require very little mental acuity." - The court determined that it was not necessary to consider social policy in every case - Consideration of social policy was needed only where an examination of the mental element left it unclear how the offence should be characterized - There were strong policy reasons to preclude the defence of intoxication for general intent offences that required minimal mental acuity - The court stated that "As a general observation, and without setting out a general rule, alcohol habitually plays a role in crimes involving violent or unruly conduct ... It also tends to be prevalent in crimes involving damage to property. As such, it makes little sense from a policy perspective that it should provide a defence for crimes in which people or property are harmed or endangered" - See paragraphs 20 to 45.

Criminal Law - Topic 33

General principles - Mens rea or intention - Crimes of specific intent v. crimes of general or basic intent - [See Criminal Law - Topic 2284 ].

Criminal Law - Topic 34

General principles - Mens rea or intention - Recklessness - [See Criminal Law - Topic 2284 ].

Criminal Law - Topic 214.6

General principles - Common law defences - Accident - [See Criminal Law - Topic 2284 ].

Criminal Law - Topic 2284

Wilful acts respecting property - Arson and other fires - Intention - The accused, while intoxicated, started a fire at his ex-girlfriend's house - He put oil in a pan to cook bacon, turned it on high, then left for 15-20 minutes to go to Tim Horton's - When he returned, the house was on fire - The Ontario Court of Appeal held that the trial judge, in acquitting the accused of arson, did not err in admitting and considering evidence of intoxication in determining that the accused did not have the required intent for the offence - Arson occurred when a person "intentionally or recklessly causes damage by fire" - Arson was an offence of special intent, not general intent - Arson required an intention to cause damage by fire or recklessness as to whether damage by fire would occur - Evidence of the accused's intoxication was admissible - The accused claimed that leaving the burner on "high" (he thought he put it on lower) was accidental, not intentional or reckless - The defence of accident should not be constrained, or effectively foreclosed, by precluding the trier of fact from considering evidence of intoxication - It was not arson to accidentally set a fire, even under the influence of alcohol - Most fires resulted from accidents or carelessness, not criminal misconduct - Recklessness required subjective foresight - To not admit evidence of intoxication would be "to replace the subjective mens rea with an objective mental element" - Further, where an intoxicated accused lacked the subjective intent for arson, he could be guilty of arson by negligence (Criminal Code, s. 436) if his conduct amounted to a marked departure from the conduct expected of a reasonable person - The Supreme Court of Canada allowed the appeal and set aside the acquittal - Arson was a general intent offence, precluding intoxication short of automatism being raised as a defence - Since the trial judge's critical fact findings were tainted by his belief that self-induced intoxication was relevant to the issue of intent, a new trial was required.

Criminal Law - Topic 2291

Wilful acts respecting property - Arson and other fires - Defences - Drunkenness - [See Criminal Law - Topic 2284 ].

Cases Noticed:

R. v. Daviault (H.), [1994] 3 S.C.R. 63; 173 N.R. 1; 64 Q.A.C. 81, refd to. [para. 20].

R. v. Bernard, [1988] 2 S.C.R. 833; 90 N.R. 321; 32 O.A.C. 161, refd to. [para. 20].

R. v. Leary, [1978] 1 S.C.R. 29; 13 N.R. 592, refd to. [para. 32].

R. v. Chase, [1987] 2 S.C.R. 293; 80 N.R. 247; 82 N.B.R.(2d) 229; 208 A.P.R. 229, refd to. [para. 32].

R. v. George, [1960] S.C.R. 871, refd to. [para. 32].

R. v. Cooper, [1993] 1 S.C.R. 146; 146 N.R. 367; 103 Nfld. & P.E.I.R. 209; 326 A.P.R. 209, refd to. [para. 32].

R. v. Swanson (1989), 48 C.C.C.(3d) 316 (Yuk. C.A.), refd to. [para. 46].

R. v. Hudson (J.N.) (1993), 88 Man.R.(2d) 150; 51 W.A.C. 150 (C.A.), refd to. [para. 46].

R. v. Muma (1989), 35 O.A.C. 77; 51 C.C.C.(3d) 85 (C.A.), refd to. [para. 46].

R. v. Schmidtke (1985), 8 O.A.C. 102; 19 C.C.C.(3d) 390 (C.A.), refd to. [para. 46].

R. v. Sansregret, [1985] 1 S.C.R. 570; 58 N.R. 123; 35 Man.R.(2d) 1, refd to. [para. 49].

R. v. S.D. (2002), 211 Nfld. & P.E.I.R. 157; 633 A.P.R. 157; 2002 NFCA 18, refd to. [para. 57].

R. v. Graveline (R.), [2006] 1 S.C.R. 609; 347 N.R. 268; 2006 SCC 16, refd to. [para. 60].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 434 [para. 7].

Authors and Works Noticed:

Berner, S.H., The Defence of Drunkenness - A Reconsideration (1971), 6 U.B.C. L. Rev. 309, pp. 333 to 334 [para. 22].

Canada, Law Reform Commission, Report on Recodifying Criminal Law, Revised and Enlarged Edition of Report No. 30 (1987), pp. 21 to 25 [para. 24].

Canadian Bar Association, Criminal Recodification Take Force, Principles of Criminal Liability: Proposals for a New General Part of the Criminal Code of Canada (1992), pp. 41 to 49 [para. 24].

Fergusson, Gary, The Intoxication Defence: Constitutionally Impaired and in Need of Rehabilitation (2012), 57 S.C.L.R.(2d) 111, p. 123 [para. 22].

Manning, Morris, and Sankoff, Peter, Manning, Mewett & Sankoff: Criminal Law (4th Ed. 2009), pp. 386 [para. 37]; 389 [para. 22].

Quigley, Tim, Specific and General Nonsense (1987), 11 Dal. L.J. 75, generally [para. 22].

Stuart, Don, A Case for a General Part, in Towards a Clear and Just Criminal Law: A Criminal Reports Forum (1999), pp. 110 to 113 [para. 24].

Stuart, Don, Canadian Criminal Law: A Treatise (5th Ed. 2007), pp. vii [para. 23]; 437 to 439 [para. 22].

Thornton, Mark T., Making Sense of Majewski (1981), 23 Crim. L.Q. 464, p. 482 [para. 38].

Counsel:

Randy Schwartz, for the appellant;

J. Douglas Grenkie, Q.C., and William James Webber, for the respondent;

Anil K. Kapoor and Lindsay E. Trevelyan, for the intervener, the Criminal Lawyers' Association (Ontario).

Solicitors of Record:

Attorney General of Ontario, Toronto, Ontario, for the appellant;

Gorrell, Greinkie & Rémillard, Morrisburg, Ontario, for the respondent;

Kapoor Barristers, Toronto, Ontario, for the intervener, the Criminal Lawyers' Association (Ontario).

This appeal was heard on December 9, 2014, before McLachlin, C.J.C., Abella, Rothstein, Cromwell, Moldaver, Wagner and Gascon, JJ., of the Supreme Court of Canada.

On June 4, 2015, Moldaver, J., delivered the following judgment in both officials languages for the Court.