Arson is a serious criminal act punishable under the Criminal Code that involves setting fire to property. The property in question – a house, building, etc. – does not necessarily have to belong to you. The severity of the charge will depend on the extent of damage to the property, the accused person’s intentions, whether the accused was negligent, and whether anyone suffered bodily harm as a result of theconduct.

What is Arson?

The offence of arson is committed where someone either intentionally or recklessly causes damage to property by fire or explosion. There are several offences related to arson under the Criminal Code:

Section 433: Disregard to Human Life

Under s. 434, it is an offence to intentionally or recklessly cause damage to property by fire or explosion - regardless of whether or not you own the property – where:

a)  The person knows or is reckless to the fact that the property is occupied by people; OR

b)  The fire or explosion causes bodily harm to another person

Section 434: Damage to Another Person’s Property

Under s. 434, it is an offence to intentionally or recklessly cause damage by fire or explosive to another person’s property.

Section 434.1: Damage to Your Property

Under s. 434.1, it is an offence to intentionally or recklessly cause damage by fire or explosive to your own property, whether owned by you in whole or in part.

Section 455: Arson for a Fraudulent Purpose

Under s. 435(1), it is an offence to cause damage to property by fire or explosion with the intent to defraud any other person.

Section 436: Arson by Negligence

Under s. 436(1), it is an offence for any person who owns or controls property and who, as a result of a marked departure from the standard of care that a reasonably prudent person would use to prevent or control the spread of fires or explosions, causes a fire or explosion in that property, and, as a result, causes bodily harm to other person or damage to the property.

Section 436.1: Possession of Incendiary Material

Under s. 461.1, it is an offence to possess any incendiary (meaning flammable or combustible) material, device, or explosive substance for the purpose of committing an offence under any of the sections listed above.

Possible Penalties if Convicted of Arson

Offences under s. 433 (disregard for human life), s. 434 (damage to other’s property), and s. 434.1 (damage to your own property) are straight indictable offences:

• Arson – disregard for human life: maximum punishment of life imprisonment.
• Arson - damage to property: maximum punishment of fourteen years imprisonment.

Offences under s. 435 (arson – fraud), s. 436 (arson – negligence), and s. 436.1 (possession of incendiary material) are hybrid offences, meaning the Crown can elect to proceed by summary conviction or by indictment.

• Arson – Fraud:
  • If the Crown proceeds by summary conviction: the maximum punishment is a fine of not more than $5000 or a term of imprisonment of not more than two years less a day, or both.
  • If the Crown proceeds by indictment: a maximum punishment of ten years imprisonment.
• Arson – Negligence:
  • If the Crown proceeds by summary conviction: the maximum punishment is a fine of not more than $5000 or a term of imprisonment of not more than two years less a day, or both.
  • If the Crown proceeds by indictment: a maximum punishment of five years imprisonment.
• Arson – Possession of Incendiary Material:
  • If the Crown proceeds by summary conviction: the maximum punishment is a fine of not more than $5000 or a term of imprisonment of not more than two years less a day, or both.
  • If the Crown proceeds by indictment: a maximum punishment of five years imprisonment.

Defences Available for a Charge of Arson

As in every case, the defences that may be available to you depend on the specific facts of your case.

The following list includes defences that may be available in an Arson case:

• Factual Innocence: Failure of the Crown to prove every essential element of the specific offence beyond a reasonable doubt.

• Accident: A defence may exist where the accused can prove he did not intentionally or reckless cause damage to property as a result of fire or explosives.
• Colour of Right: A defence to a charge of arson exists where the accused can prove he or she acted with legal justification or excuse due to an honest belief in a state of facts which, if existed, would be a legal justification.
• Involuntary Intoxication: The involuntary consumption of alcohol or drugs may negate the mental element of the accused’s actions. The accused cannot have taken the substance voluntarily to invoke this defence. 
• Violation of Charter Rights: Under the Canadian Charter of Rights and Freedoms, individuals are afforded specific rights, including:
  • the right against unreasonable search and seizure;
  • the right to not be arbitrarily detained;
  • the right to be informed promptly of the reasons for arrest;
  • the right to retain and instruct counsel without delay; and
  • the right to be tried within a reasonable time.

A successful Charter challenge may also result in a stay of proceedings or evidence from your case being excluded.

Next Steps

The information above provides a general overview of the Arson-related offences, as well as potential penalties and defences. However, no two cases are alike. Every criminal case is fact-specific and ranges in complexity, depending on the issues at play.

Were you charged with Arson? Our team of lawyers is prepared to conduct a thorough review of your situation and develop an approach that is tailored to your needs. Obtaining proper legal representation is the first step in preparing a successful defence.