R. v. Ferguson, 2017 BCSC 2056

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Ferguson, 2017 BCSC 2056 Date: 20171020 Docket: 32483-2 Registry: Terrace Regina v. Nicholas William Ferguson and Thomas Michael Finnie Before: The Honourable Madam Justice Maisonville Oral Reasons for Sentence Counsel for the Crown: M. Hopkins Counsel for the Accused, Nicholas William Ferguson: T. Klaassen Counsel for the Accused, Thomas Michael Finnie: B. Crampton Place and Date of Hearing: Terrace, B.C. October 20, 2017 Place and Date of Judgment: Terrace, B.C. October 20, 2017 [ 1 ] THE COURT: Before the court on sentencing are Mr.

Thomas Michael Finnie and Mr. Nicholas William Ferguson. On March 29, 2017, both of them entered guilty pleas to intentionally or recklessly causing damage to a house by fire which was occupied, contrary to s. 433 (

a) of the Criminal Code , R.S.C. 1985, c. C-46. The facts before the Court are not in dispute and were the subject of admissions. [ 2 ] On April 12, 2014, at approximately 5:20 a.m., a fire was set in the residence of Jordan Sanwald located at [address redacted] Kechika Street, Kitimat, B.C. Nicholas Ferguson and Thomas Finnie were present at the fire on Kechika Street. While at Kechika Street, Mr. Ferguson made comments indicating he believed that Shane Calkins was responsible for the fire on Kechika Street and that there should be retribution towards Shane Calkins. Mr. Ferguson and Mr.

Finnie left Kechika Street in Mr. Finnie’s truck. [ 3 ] Mr. Ferguson and Mr. Finnie lived in separate homes across the street from each other near the Kechika Street fire. [ 4 ] After leaving Kechika Street, while together, Mr. Ferguson and Mr. Finnie obtained a gas can from either Mr. Finnie’s or Mr. Ferguson’s residence. They then drove to the Shell gas station located at 1064 Lahakas Boulevard. Mr. Ferguson bought $10 worth of gas and filled up the gas can. Mr. Ferguson and Mr. Finnie drove to a location near the Calkins’ home located in Kitimat, B.C. [ 5 ] Throughout the morning, Mr. Ferguson and Mr.

Finnie discussed the Kechika Street fire and Mr. Ferguson believed that Shane Calkins was responsible for it. Both Mr. Ferguson and Mr. Finnie ought to have known that the gas Mr. Ferguson purchased was intended to be used to set the Calkins’ home on fire. Mr. Ferguson and Mr.

Finnie were reckless with regard to the fact the Calkins’ home was occupied at the time. [ 6 ] At approximately 6:20 a.m., a fire was started outside the garage of the Calkins’ home. [ 7 ] According to Forensic Services, the evidence gathered was consistent with the source of the fire, being a red plastic container with the material first ignited being a petroleum-based liquid. The Calkins family was renovating their home at the time and had relocated their sleeping quarters to a room above the garage during the renovation. Mrs.

Sharmin Calkins and her two sons, Logan and Hayden, were sleeping above the garage when the fire was started. All three occupants of the home escaped suffering minor physical injuries. Mr. Ferguson returned to Kechika Street and made comments to Mr. Sanwald that suggested that he and Mr. Finnie had lit the Calkins’ home on fire and that they had done it on Mr. Sanwald’s behalf. [ 8 ] Counsel for Mr. Finnie and the Crown propose a joint submission respecting Mr. Finnie’s sentence to be imposed of 30 months’ incarceration while counsel for Mr.

Ferguson seeks a sentence of 30 months. [ 9 ] The Crown’s position, however, is that a sentence in the range of three to five years is appropriate, and for Mr. Ferguson’s particular circumstances, that three years would be appropriate. [ 10 ] Both the Crown and defence counsel take the position that Mr. Ferguson should be credited for time in custody. There is some dispute as to the amount of days. I will return to that. circumstances of the victims

[ 11 ] When the Calkins’ home was set on fire, Mrs. Calkins and her two sons were sleeping in a room above the garage. The fire damaged the Calkins’ home in its entirety. It destroyed the garage and the addition that was being renovated. It caused smoke damage throughout. For an entire year, the Calkins’ family had to live in a trailer and later, in a rental property. While insurance covered some of the property, numerous items were uninsured such as vehicles. As well, there were items that cannot be ascribed a value, being irreplaceable items which belonged to Mrs.

Calkins’ late mother and sister. [ 12 ] The most important damage, however, is to the Calkins themselves. As a result of the fire, Mrs. Calkins suffers anxiety and requires medication. She has had nightmares about being in a fire and, in her dreams, she was unable to get her children out of it. [ 13 ] One of her sons suffers a worsening of his epilepsy. Both her sons still regularly seek counselling. They sleep with their parents for fear that if a fire were to occur and they were not with their parents, they would not be safe. [ 14 ] Also at issue is the harm to the community of Kitimat. This is a small town.

There are limited resources for fighting fires, additionally. There were two residential fires on one day. This greatly impacted the community. case law [ 15 ] The Crown has placed a number of decisions before the Court. There are distinctions to be made which impact on the court’s treatment of sentence and will impact my treatment of sentence. Circumstances such as whether there is a residential property as opposed to a commercial property and circumstances where the offence was committed as

an act of vengeance which have resulted in more severe sentences being imposed. [ 16 ] The Crown relied upon the decision of R. v. Munro , 2007 BCPC 178 . . The issue for that court was whether the judge was going to impose, on a co-accused, a similar sentence to that imposed on another offender for the same offence. Judge Rounthwaite gave the same sentence. It was a situation where a pub was the target of the arson. The accused paid $600 for his acts. The court held in that circumstance: [9] The main issue in sentencing is whether or not I ought to follow the earlier sentence given to Mr.

Hall or whether there are reasons for deviating from that sentence. Like Mr. Hall, this is an arson for hire. It is an arson which was deliberately done, rather than reckless. Also like Mr. Hall, he has no related criminal record. His role in the series of arsons, while significant in that he threw the gasoline and Mr. Hall threw the flare, they are bit players. They were each involved in only one arson and they were not the ringleaders, as I have already said. [10] I hesitated because this arson was larger in size and in economic damage than that of Mr.

Hall but, other than that, I can find no justifiable reasons for treating this accused differently from Mr. Hall. The two are reasonably similar in terms of their involvement in these offences. Accordingly, I am going to impose the same sentence which I gave to Mr. Hall: two-and-a-half years imprisonment, effectively 30 months. Taking into account time served of four months, there will be an additional period of custody of 26 months. The judge also imposed the requirement for a DNA sample as arson is a secondary designated offence.

The victim surcharge was waived. [ 17 ] The Crown also relies upon the decision of R. v. Jandrew , 2017 BCPC 317 , in which there were four counts of arson. The court noted in the decision that there was no loss of life, but one property was, in fact, occupied at the time of the arson. Concurrent sentences on the four-count Information were given. However, for the one count, the accused received four years, but the rest, two-and-a-half years. It is outlined at para. 7: Crown and defence have pointed out a number of aggravating and mitigating circumstances. In mitigation, Mr.

Jandrew has pled guilty, and that is not an insignificant thing because he has spared the requirement of trials for all of these counts. Arson can be a very difficult offence to prove, it involves a lot of expert witnesses and a lot of court time, and by pleading guilty his acceptance of responsibility can be taken in mitigation. He has also accepted responsibility very early. I am told that he gave a statement to police admitting commission of these offences. I am also told that he has tried to plead guilty to these offences before today and I take that into account. Mr. Schultz also points out Mr.

Jandrew’s unfortunate background, the fact that there are some health issues that he has had to deal with that have put a number of very significant challenges in his life. [ 18 ] The court went on to note that the accused had an unfortunate background and the fact that there are some health issues that he has had to deal with have put a number of significant challenges in his life (para. 7). [ 19 ] The aggravating features of this case the Crown pointed out were that there was a tremendous risk of life and incredible caused by the offences and that it was not a single arson, but a spree of offences.

It was not a situation, either, given the significant property loss, where restitution could be made to the victims of the offences. [ 20 ] Turning to the case at bar, again, most importantly, the Crown relies upon R. v. Clifford , 2015 BCSC 875 in which Justice Macintosh was sentencing a planned and deliberate arson in a situation involving a relationship that had broken down between two individuals. Apparently, a child was ultimately born to that relationship which was not wanted by the accused in that case. That accused had no criminal record.

Citing case law, Macintosh J. noted at para. 18 that “… arson is always viewed with utmost concern”. [ 21 ] As well, at para. 27, Macintosh J. stated: Last, the Crown pointed to Mr. Clifford's motive as being an aggravating factor. The crimes were vengeful. They inflicted fear and psychological trauma. In R. v. Castro-Andino , [1998] B.C.J. No. 3171 (S.C.) , Thackray J., as he then was, called revenge the worst of intentions. [ 22 ] Further in the decision, Macintosh J. noted:

[32] Vengeful, malicious, insidious, frightening and menacing are words to describe what Scott Clifford planned to do and did to theDeardens that night. The single factor in his favour is that he has no criminal past, and one must sympathize for his wife and their child. But his vengeance must be denounced and deterred. The public must be deterred too. The Deardens must be protected. Mr. Cliffordtook his idea of justice away from the courts and put it in his own hands. He had failed in the courts to gain what he wanted in thecustody struggles over Luke.

Instead of keeping that dispute in the only forum where it belonged, or accepting what the courts haddetermined, he descended to wanton retaliation. Accordingly, in that case, a three-year sentence was pronounced by the court. [23] Also placed before me was the case of R. v.

Quigley, (BC CA) in which a sentence of five years wassubstituted for an eight-year sentence. .In that case, the Court of Appeal considered the fact that the appellant had served 11 months incustody prior to sentencing, that it would have made an eight-year sentence to a nine to ten years sentence which lies beyond theappropriate range to this kind of offence and the offender (at para. 13). [24] Also, the decision of R. v. Castro-Andino , [1998] B.C.J. No. 3171 (S.C.) was placed before the Court in which there was athree-and-a-half-year sentence. [25] As well, the case of R. v.

Allard, 1999 BCCA 481 was provided to the Court, which was of a home that was the subject of thearson and a four-year effective sentence was given. [26] From these cases, it is clear that the important overarching principles for the court to determine are denunciation anddeterrence. [27] As well, the court must be mindful of s. 718 of the Criminal Code in which the Parliament which sets out: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect forthe law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the followingobjectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [28] I am also mindful of s. 718.1 that: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [29] As well, as 718.2, in particular (iii.1): Evidence that the offence had a significant impact on the victims, considering their age and other personal circumstances, including theirhealth and financial situation, … and that shall be deemed an aggravating circumstance. [30] I am mindful that a sentence should be similar to sentences imposed on similar offenders for similar offences committed insimilar circumstances.

Also, while remorse is a mitigating factor, an individual’s failure to express remorse is not an aggravatingcircumstance. joint submission [31] I must also address the law with respect to joint submissions given that the position on sentencing by the Crown and defencecounsel in respect of Mr. Finnie is that a joint submission of 30 months is appropriate. I refer to the recent 2016 decision of the SupremeCourt of Canada in R. v.

Anthony-Cook, 2016 SCC 43 in which the court noted that: Crown and defence counsel are well placed to arrive at a joint submission that addresses the interests of both the public and the accused.Trial judges should not reject a joint submission lightly. They should only do so where the proposed sentence would be viewed byreasonable and informed persons as a breakdown in the proper functioning of the justice system.

A lower threshold than this would castthe efficacy of resolution agreements into too great a degree of uncertainty. [32] Justice Moldaver in Anthony-Cook for the unanimous court noted that joint submissions are vitally important to the wellbeingof the criminal justice system. The test is whether it is in the public interest.

circumstances of the accused Nicholas William Ferguson [ 33 ] Mitigating circumstances in respect of Mr. Ferguson are that he is young. He is 26. He has the support of his family. His mother is here. She is concerned about him and has expressed concern in the past about his drug use. He has an older brother as well as a younger brother and a younger sister. His younger brother suffers from autism. [ 34 ] I have been told that the bail conditions in respect of this offence have proved to be a particular hardship for Mr.

Ferguson as one of the conditions is that he is unable to go to Kitimat and this has resulted in a separation from his family who live there. Mr. Ferguson has substance abuse issues and, indeed, was under the influence of alcohol and cocaine at the time of offence. I am mindful that in the admissions there was threats made by him, but I am told that these were empty threats. Mr. Ferguson suffers from attention deficit hyperactivity disorder. [ 35 ] Mr. Ferguson has a criminal record. He had four offences after this offence that are unrelated, including a driving related offence and two breaches of undertaking.

He has breached the terms of his bail on this recognizance. I have been told the circumstances of those breaches. One involved treating his dog, who needed care in Kitimat. The other involved not disclosing where he was to his probation officer. [ 36 ] His counsel described him as having issues including paranoia. However, there were concerns expressed about his empathy and it was explained by his counsel that he suffers from a certain extent of paranoia. [ 37 ] He has served time in custody on these offences.

I find that the time in custody to be credited is that of 72 days and at a credit of 1.5 to one. [ 38 ] Mr. Ferguson works only sporadically and is presently unemployed by choice. I am told by his counsel that he is remorseful. [ 39 ] Crown seeks a custodial term of three years. Defence seeks a sentence of 30 months. Thomas Michael Finnie [ 40 ] Mr. Finnie has pulled himself completely from the associations he had before and at the time of this offence. He has moved to Merritt where he and his partner of many years are now expecting a baby.

He secured employment at Pine Ideas Limited and I am told a job will be available to him again upon his release, although he hopes to explore setting up his own business. [ 41 ] He, too, has an unrelated criminal record and was charged after this offence, but that offence was committed before this one. There were no charges that he committed after this offence to which he has pleaded guilty. [ 42 ] I am mindful of his guilty plea. Mr. Finnie also spoke to the court. He expressed his deep remorse emotionally and wished he could do anything to right the wrongs done to the Calkins.

Importantly, however, this Court is as well mindful that a joint submission is proposed between the Crown and defence counsel for Mr. Finnie of 30 months. sentence [ 43 ] It cannot be forgotten that this crime imperiled a family’s lives. Only through good fortune did they escape. The gravity of that crime, its effect on the Calkins and the community cannot be understated. However, I sentence Mr. Finnie and Mr. Ferguson as parties to this offence. [ 44 ] The guilty plea is an important mitigating factor, particularly in arson cases that are notoriously difficult to prove.

While the range can extend to as high as eight years, in these circumstances, the Crown has outlined a range of three to five years seeking only three years for Mr. Ferguson and the joint submission of 30 months for Mr. Finnie in part on the basis of Mr. Finnie’s efforts to rehabilitate himself and his exceptional remorse in the circumstances of a joint submission. Nicholas William Ferguson [ 45 ] Mr.

Ferguson, will you please rise. [ 46 ] Taking into account your guilty plea and your remorse as expressed by your counsel, I accept the Crown’s submission that a three-year sentence adequately addresses the need for denunciation and deterrence. I am mindful that, in other similar situations, a sentence far in excess of three years has been propounded by the court. However, in your situation, I am prepared to accede to a three- year sentence on the basis of the submissions made by your counsel.

I do not feel, in your circumstances, that a sentence of 30 months would adequately address the situation of denunciation and deterrence. I do credit you with 72 days at 1.5 to one for 108 days’ credit. [ 47 ] I will also order you to provide a DNA sample and pursuant to s. 109 of the Criminal Code weapons prohibition for a period of 10 years. [ 48 ] MR. KLAASSEN: That is right. [ 49 ] THE COURT: All right, thank you.

[ 50 ] You can sit down, Mr. Ferguson. Thomas Michael Finnie [ 51 ] Mr. Finnie, will you please stand. [ 52 ] I accept that in your circumstances of extreme remorse, this event has served as a catalyst for you to have a new life and started your efforts towards rehabilitation. Nonetheless, I find that the joint submission of 30 months proposed is an appropriate sentence for you in all of the circumstances. It is not lightly that a court will depart from a joint submission and as set out by in Anthony-Cook .

Otherwise, were this not to have been a joint submission, it is very likely that you would have received the three-year sentence I imposed on Mr. Ferguson. I find, however, in all of the circumstances, that the important overarching factors of denunciation and deterrence can be served by 30 months as proposed by Crown counsel and I will not depart from the joint submission. [ 53 ] As well, you are ordered to provide a sample of your DNA and, as well, there will be a s. 109 weapons prohibition for a period of 10 years. [ 54 ] I am waiving the victim fine surcharge in the circumstances with respect to both Mr.

Finnie and Mr. Ferguson as they will now be serving time in custody. [ 55 ] THE COURT: Thank you. “Maisonville J.”