Madam speaker, I am pleased to respond to Motion No. 376 introduced by the hon. member for Surrey Central. The motion proposes to amend the criminal code to expand the definition of first degree murder to include the death of a firefighter who is killed while combating a fire that was deliberately set, and to amend the provision that deals with arson by adding language that addresses the death or injury of a firefighter.
I agree with my colleague that firefighters play a crucial role in the protection of human lives and property in Canada. I recognize that firefighting is an extremely hazardous occupation and like all Canadians I am grateful for their bravery and commitment to public service.
The first of these two amendments would expand the definition of first degree murder in subsection 231(4) to include the death of a firefighter killed when combating a fire set by an act of arson. Where a peace officer or prison official is murdered while acting in the course of his or her duties, subsection 231(4) increases the offence of murder to first degree murder irrespective of whether the murder was planned and deliberate. The amendment seeks to extend this protection to firefighters.
The government is committed to protecting firefighters from dangers associated with arson. However we do not believe that the proposed amendments are constitutionally possible. The supreme court has found that there is a constitutional requirement that for an individual to be found guilty of murder, he or she must have formed a subjective intent to kill prior to committing the act.
Murder is either first degree murder or second degree murder. In most circumstances first degree murder is when it is planned and deliberate. However when a police officer or prison official is murdered in the course of his or her duties, the offence becomes first degree murder regardless of whether it was planned or deliberate.
It should be noted that subsection 231(4) does not give special protection to police officers or prison guards who are killed while in the course of their duties. It addresses the situation of a police officer or prison guard who is murdered.
It is inappropriate to expand the definition of first degree murder in subsection 231(4) to include firefighters who are killed while combating a fire set by arson because in such a crime there is not normally the requisite intent to kill a firefighter for the offence to be murder. The death of a firefighter in such a situation would be covered by the charge of manslaughter where the mental element requirement is the objective foreseeability of the risk of bodily harm that is neither trivial nor transitory, or by the charge of arson causing bodily harm.
However if a fire were planned and set with the intent to kill a firefighter, then it would be first degree murder because by its very nature the act of setting a fire to kill a firefighter is planned and deliberate. As such a firefighter who is the target of a direct intention to kill is protected by the criminal code to the same degree as a peace officer or prison official.
Let me emphasize that in no way does the government believe that firefighters are less worthy of protection than peace officers or prison officials. For example, if a police officer were killed while attempting to save an individual trapped in a fire that had been set deliberately, the charge would not fall under subsection 231(4). Likewise if we take the example of a situation in which a police officer is killed in a high speed chase, the offence would not be murder because there was no intent to kill. A person is not charged under subsection 231(4) solely because a police officer has been killed. There must be both an intent to kill and the knowledge that the person killed was a police officer.
The motion also calls on the government to amend section 433 of the criminal code dealing with the crime of arson by adding language that addresses the death or injury of a firefighter engaged in combating a fire or explosion that is deliberately set. This provision already carries a maximum punishment of life imprisonment should any person be harmed by a fire that was deliberately set and of course extends to firefighters.
In 1990 parliament responded to the concerns of firefighters in regard to arson by making several amendments to the criminal code. The focus of the law shifted from crimes against property to the danger that arson poses to the life, safety and property of all Canadians and in particular to firefighters. In addition the maximum penalty for bodily harm suffered from arson was raised from five years to life imprisonment.
We cannot support the motion for the reasons that I have outlined in my remarks. The government, like the hon. member for Surrey Central, is concerned about the safety of firefighters and is grateful for their bravery and commitment to public service.