Majority
The judgment of Lamer, Wilson, La Forest, Gonthier and Cory JJ. was delivered by
//Cory J.//
CORY J.
CORY J. -- This appeal comes to the Court as of right.
On the facts of this case, I am of the view that the accused stands convicted on either test, objective, subjective, or a combination of both. This can be seen from the findings of fact made by the trial judge.
With regard to the state of mind and the awareness of the consequences of the appellant, the trial judge found:
(1) Intoxication
(1) Intoxication
On the evidence I am of the view:
(1)That the accused due to his admitted daily consumption of alcohol had a great tolerance to alcohol.
(2)That he had consumed a considerable amount on the date in question as is reflected by the breathalyzer tests.
(3)His mind and actions were to an extent clouded by alcohol, but by his own evidence he recollects the events with some detail and I can only conclude that he had an operating mind on the date in question. In other words, he was not so intoxicated that he did not know what he was doing. He had sufficient ability to perceive what he was doing and the consequences which might follow.
The trial judge stated:
... I find that Mr. Buttar was reckless in that he burned such a large package of clothing in a relatively small fireplace. When one looks at the photographs this is clearly observable in photograph ten. In any normal sense a package of clothing of that size, if not placed securely in the fireplace, would fall out.
There is also evidence that Mr. Buttar admitted that he probably did not close the screen. He left the fire unattended. He poured gasoline on the clothing. And, he also spilled gasoline on the carpet.
If these acts are taken together I'm satisfied they fit within the definition of wilfulness. That is, there was such reckless acts done even though there might not have been a bad motive.
As there has been no constitutional challenge to s. 429 of the Criminal Code , R.S.C., 1985, c. C-46 , and as there was no argument below predicated on s. 7 of the Canadian Charter of Rights and Freedoms , but only Lambert J.A.'s reference to that section, I am of the view this is not the proper case to articulate principles of law and, accordingly, I would dismiss the appeal without further reasons.
The reasons of L'Heureux-Dubé and McLachlin JJ. were delivered by
//McLachlin J.//
MCLACHLIN J.
MCLACHLIN J. -- I would dismiss the appeal for the reasons given by Esson J.A., with the caveat that I should not be taken as having decided what the result should be had s. 7 of the Canadian Charter of Rights and Freedoms been put in issue or argued.
Appeal dismissed.
Solicitors for the appellant: Johnstone & Company, Prince Rupert.
Solicitor for the respondent: The Ministry of the Attorney General, Vancouver.