R. v. Sorenson, 2023 BCSC 787

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Sorenson, 2023 BCSC 787 Date: 20230421 Docket: 32967-3 Registry: Vancouver Between: Rex v. Steven Sean Sorenson Before: The Honourable Justice Fitzpatrick Oral Reasons for Judgment (Sentencing) Counsel for the Crown: P. Sebellin The Accused appearing in person: S.S. Sorenson Amicus Curiae : T. Arbogast Place and Date of Hearing: Vancouver, B.C. January 26 and April 21, 2023 Place and Date of Decision: Vancouver, B.C.

April 21, 2023 Introduction [ 1 ] Steven Sean Sorenson has been found guilty of three counts of arson. [ 2 ] On November 22, 2022, after a jury trial, Mr. Sorenson was found guilty of two counts of arson arising from his setting of fires at two restaurants in Burnaby, BC on April 11, 2020. The restaurants in question were the Jang Mo Jib restaurant and the Sushi Oyama restaurant. Earlier, on November 2, 2022, Mr. Sorenson plead guilty to another count of arson relating to his setting of a second fire at the Sushi Oyama restaurant on November 6, 2020.

All convictions arose from charges under s. 434 of the Criminal Code , R.S.C., 1985, c. C-46 . [ 3 ] My task now is to arrive at a fit sentence for Mr. Sorenson relating to all three counts. Circumstances of the Offences [ 4 ] The evidence at Mr. Sorenson’s jury trial was based on substantial surveillance video from locations near the restaurants and at the restaurants themselves in the early morning hours of April 11, 2020 (collectively, the “April 2020 Fires”). [ 5 ] Those video recordings showed a person approaching the back of the Jang Mo Jib restaurant around 1:54 a.m. and leaving shortly thereafter.

A fire started at the back of the Jang Mo Jib restaurant only minutes later. Some aspects of that person’s appearance and clothing are evident from the recording. Around 2:48 a.m., a male having similar physical characteristics and wearing similar clothing was seen at the nearby 7-11 store. Around 5:22 a.m., a person wearing similar clothing arrived at the Sushi Oyama restaurant. Minutes later, a fire broke out there. [ 6 ] Around 7:26 a.m., a male of the same description and wearing similar clothing arrived at the Royal Oak Skytrain station.

This person was seen on the video recordings travelling to the Columbia station and then the Gateway Station, where he left the train. [ 7 ] The evidence established that the fires were deliberately set and also, other elements of the offence, such as ownership of the two restaurants. [ 8 ] The significant issue at the jury trial was identification. The jury found that Mr. Sorenson was the person observed in all of the video recordings and that he was the person who had set the fires on April 11, 2020. [ 9 ] Fortunately, no persons were in the restaurants when the April 2020 Fires were set.

However, there was extensive damage to the Jang Mo Jib restaurant; the insurance company paid out benefits of $330,996.06, including business interruption losses for 12 months.

The sprinkler system at the Sushi Oyama restaurant prevented substantial damage from the April 2020 fire, although the insurance company still paid out benefits of $18,875.95, including the owner’s deductible of $5,000. [ 10 ] On November 6, 2020, Mr. Sorenson was again captured on a surveillance video recording at the Sushi Oyama restaurant just after midnight. As before, Mr. Sorenson went up the stairs and lit an item (this time a box) on fire (the “November 2020 Fire”). Only minutes later, after he walked back down the stairs, the video recording shows the box in flames.

The sprinkler system was activated and the fire department arrived shortly thereafter. [ 11 ] As before, no persons were in the Sushi Oyama restaurant at the time of the November 2020 Fire. The damage suffered this time, however, was more severe. The insurance company paid out $177,545.63 for damage to the building/structure, in addition to losses for contents and business interruption totalling $43,888.12. The owner of the Sushi Oyama restaurant paid a $5,000 deductible. [ 12 ] Accordingly, the total damage for all three fires was $571,305.76 Circumstances of the Offender [ 13 ] I have received and reviewed Mr.

Sorenson’s Pre-Sentence Report dated January 24, 2023 (“PSR”). [ 14 ] Mr. Sorenson was born in February 1973 in Burnaby. He is now 50 years old and he was 47 years old at the time of the offences. He has three siblings. He attained a Grade 10 education. [ 15 ] Although Mr. Sorenson describes his childhood as “normal”, his early life was marred by domestic violence in the home. At age 14, Mr. Sorenson was placed in the care of the Ministry of Children and Family Development (MCFD). At age 15, Mr. Sorenson left the care of the MCFD and began supporting himself as his family did not welcome him back home.

He presently has no contact with his immediate family. [ 16 ] Mr. Sorenson is single, has never been married and he has no children. [ 17 ] Since age 15, Mr. Sorenson’s life has been unstable. He has worked from time to time, although he has received income assistance throughout his life. Mr. Sorenson reports that he has had periods of homelessness. He has a history of substance abuse since his mid-teens, which has included alcohol, marihuana, crack cocaine and lately, crystal methamphetamine. The PSR notes that Mr.

Sorenson has been recently diagnosed with attention deficit disorder (ADD), for which he is now taking medication. [ 18 ] Mr. Sorenson has an extensive criminal record beginning in 1995, when he was 22 years old. The offences include mischief, drug offences, theft, break and enter and failures to comply with various orders. Two prior charges involved some violence, being robbery (in 2000, for which he received 15 months jail) and two convictions for uttering threats (in 2008, for which he received jail time plus probation). [ 19 ] The PSR outlines Mr. Sorenson’s attitude in relation to the fires: … Mr.

Sorenson reports he was experiencing a “low point” in his life as he lost his accommodation as his landlord was selling the house. As such, he states he once again became homeless and was living on the streets. He reports feeling frustrated, overwhelmed, and hopeless at the time as he was cold, wet, and hungry. With regard to the index offences, he indicates he did not know how to cope with his circumstances and wanted to “teach somebody a lesson” by committing arson.

He recognizes his actions were “extreme” and believes it was out of character for him to be in that “frame of mind”. [ 20 ] At the continuation of this sentencing hearing, Mr. Sorenson acknowledged that he had made poor decisions in acting as he did. He describes that he was homeless at the time and “not in a good space”. He asserts that he had no intention of hurting anyone by his actions and that he knew at the time that no person was on the premises. Finally, Mr. Sorensen asserts that his actions were not planned. [ 21 ] Mr.

Sorenson states that he is receptive to participating in a psychiatric or psychological assessment and is also receptive to counselling for his mental health and substance abuse issues. Positions of Crown and Defence [ 22 ] Crown counsel submits that the appropriate and fit sentence is two years jail time for each of the three counts, or six years, to be reduced to five years based on the totality principle. [ 23 ] The Crown also refers to Mr. Sorenson’s pre-trial custody period. Mr. Sorenson was arrested on November 10, 2020 and released shortly thereafter on November 13, 2020. On January 5, 2021, Mr.

Sorenson was returned into custody and he has remained there until now. As of April 21, 2023, Mr. Sorenson has been in pre-trial custody for 841 days, which at 1.5x credit, amounts to 1,262 days (or 3 years and 167 days). [ 24 ] The Crown also seeks a three year probation period following the period of incarceration. [ 25 ] Mr. Sorenson argues that during his time in custody, he has been in isolation from time to time, largely due to COVID-19 protocols, totalling approximately 12 weeks. In addition, since January 2021, Mr. Sorenson has been in the mental health unit.

He asserts that both of these circumstances resulted in limits to his movements and contact with persons while in custody, suggestive of a harsher sentence than what might otherwise have been borne by him. [ 26 ] Mr. Sorenson submits that these circumstances should be considered toward reducing his sentence. He suggests a further credit

of 420 days beyond that suggested by the Crown. [27] Finally, Mr. Sorenson takes the position that a three year probation period at the end of his jail sentence is too long. He suggestsone to one-and-a-half years.

Principles of Sentencing [28] The maximum sentence for arson under s. 434 of the Criminal Code is 14 years imprisonment. [29] In addition, I am aware of the sentencing principles set out in ss. 718–718.2 of the Criminal Code. [30] Under s. 718, the objectives of sanctions include denouncing unlawful conduct and harm to victims, deterring offenders andothers from committing crimes, separating offenders from society where necessary, rehabilitating offenders, providing reparations forharm done to victims or to the community and promoting a sense of responsibility in offenders. [31] Under s. 718.1, a sentence must be proportionate to the seriousness of the offence and the degree of responsibility of theoffender. [32] Under s. 718.2(b), a sentence should be similar for similar offences committed by similar offenders in similar circumstances.

Inaddition, under s. 718.2(c), where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. [33] I would adopt the statement of Justice Marchand (as he then was) in R. v.

Laforge, 2020 BCSC 1269 as to the sentencingprinciples—denunciation and deterrence—that mainly apply in arson cases and the potential impact of mental illness as motivating thecrime: [63] As noted, the authorities are clear that public safety, denunciation and deterrence are the primary sentencing principles in casesinvolving arson. [64] Nevertheless, the authorities are also clear that in cases where mental illness plays a central role, deterrence and punishmentshould be given less weight while treatment and protection of the public should be given more weight.

That is because, offenders whoseconduct is the product of impaired reasoning, delusional thinking and other compromised mental conditions have a reduced level ofmoral blameworthiness and must be distinguished from “ordinary, fully accountable offenders”. As a result, a more lenient sentence thanwould otherwise be called for may be appropriate for an offender suffering from a serious mental illness: R. v. Badhesa, 2019 BCCA 70at paras. 39-44. [34] The Crown submits that the appropriate range of sentence for each arson count is two to three years. [35] The Crown’s case authorities that I have considered are:

a) R. v. Petropoulos, [1995] B.C.J. No. 1449 (C.A.): the offender was involved in a planned arson of his restaurant to collectinsurance proceeds, resulting in considerable damage. These were both aggravating factors. The court stated that the appropriatesentencing range is two to three years. He was sentenced to imprisonment for three-and-a-half years;

b) R. v. Allard, [1999] B.C.J. No. 1912 (C.A.): the offender was convicted for arson for setting fire to a home for revenge, andtwo counts of threatening. The offender required treatment for various issues, including anger management and substance abuse. Theeffective sentence was slightly in excess of four years, plus probation for three years, with two years less a day and probation for thearson count;

c) R. v. Keber, 2005 BCCA 543: the offender set fire to a gas station, and was also convicted of theft and mischief causing dangerto life. The offender had substance abuse and mental health issues that were largely unaddressed. At para. 8, the court stated that theoffences were serious, and treatment and probation were necessary to support rehabilitation and to protect the public. The court upheldthe sentence of two years less a day incarceration and three years probation;

d) R. v. Leer, 2017 BCPC 235: a mentally ill young adult set fire to a townhouse complex where she and her mother lived,resulting in evacuations of the occupants and substantial damage and loss. The accused plead guilty and was sentenced to just in excessof three years, plus three years probation; and

e) Laforge: the Indigenous accused drove his vehicle into a convenience store and then set it on fire. Extensive damage ensued.The accused plead guilty to mischief and arson. He had no criminal record and had mental health issues. The Court rejected the jointsubmission for time served (27 months) and lowered the sentence to 18 months plus three years probation. [36] The discussion by the Court in Laforge concerning the range of sentences imposed in arson cases is worthy of being repeatedhere: [47] Arson is a serious offence.

The maximum punishment of 14 years imprisonment reflects that fire is erratic, unpredictable andmay give rise to unforeseen consequences such as extensive property damage, serious personal injury and/or death: Sharun at para. 38citing R. v. K.H., (1994) (NB CA), 146 N.B.R. (2d) 372 (C.A.).

Protection of the public, denunciation anddeterrence, both general and specific, are the primary sentencing objectives: Leer at para. 124; Sharun at para. 37. [48] For sentencing purposes, arsonists can generally be divided into four types: pyromaniacs or persons suffering from mentalillness; people who burn for no special reason; vandals; and people who burn for revenge or financial gain.

Of these, persons who aresuffering from mental illness are often considered to have the lowest level of moral blameworthiness while those who commit arson forrevenge or financial gain are generally considered to have the highest: Sharun at para. 38 citing R. v. K.H., (1994)

(NB CA) , 146 N.B.R. (2d) 372 (C.A.). See also the numerous authorities reviewed in Leer at paras. 85 to 109 . [49] Because arson is committed in so many different ways, by so many different types of offenders for so many different reasons, the range of sentences is particularly broad.

That said, arson offences committed by offenders with mental health issues and no prior record that cause significant property damage but no loss of life have resulted in custodial sentences of two to three years : Leer ; Barnes ; Keber . … [Emphasis added.] [ 37 ] In addition, the Amicus has also helpfully provided further case authorities from the BC Provincial Court which support the Crown’s submission that the range is two to three years. Those case authorities are: R. v. Powell , 2018 BCPC 295 , R. v. Kohlman , 2021 BCPC 273 at para. 27 , R. v. Woods , 2021 BCPC 307 at para. 49 and R. v.

Panek , 2022 BCPC 115 at paras. 78–93 . [ 38 ] I accept the Crown’s submission that the range of sentence for each of the counts is two to three years, subject to the usual approach in considering any relevant specific factors in terms of fashioning a fit sentence in the individualized process that is required in each case. [ 39 ] Finally, there is the matter of Mr. Sorenson’s periods of isolation while in custody. [ 40 ] While this issue was initially addressed at this hearing as a potential to reduce the statutory credit of 1.5:1 for time served, the case law confirms that this approach is not correct: R. v.

Marshall , 2021 ONCA 344 at paras. 50–53 . Rather, later cases have described that difficult or harsh pre-trial custody conditions can be considered as a mitigating factor: R. v. Fulton , 2021 BCSC 2721 at paras. 62– 74 . [ 41 ] However, in R. v.

Suter , 2018 SCC 34 at para. 48 , the Court described this issue as one of collateral consequences as relevant to an offender’s personal circumstances and not necessarily a “mitigating factor”. [ 42 ] At paras. 48–49, the Court in Suter stated that the question is whether the effect of collateral consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances.

In addition, the Court stated that the collateral consequences must flow naturally from the conviction, sentence or commission of the offence and must relate to the offence and the circumstances of the offender. [ 43 ] At paras. 56 and 58 in Suter , the Court confirmed that the principle of proportionality must not be overwhelmed by any collateral consequences and that any collateral consequences should only be considered to a limited extent. [ 44 ] In R. v.

Scholz , 2022 BCCA 339 , the court applied these principles in the context of incarceration during the COVID-19 pandemic in stating: [39] While recognizing the hardship that can be caused due to COVID-19, courts are not prepared to interfere with a fit sentence in the absence of evidence regarding the particular circumstances of an offender’s incarceration or any indication of a unique or personal vulnerability of the offender: McKibbin ; Milne ; R. v. Morgan, 2020 ONCA 279 ; R. v. Lariviere, 2020 ONCA 324 . In R. v.

Stevens, 2020 BCPC 104 , the judge noted the risk of COVID-19 can be best characterized as a collateral consequence, not mitigation, and the impact of a collateral consequence does not displace the general rule that a sentence must be fit, having regard to the crime and the offender: Stevens at paras. 47, 49 . [ 45 ] In R. v. Alec , 2022 BCPC 268 at paras. 41–46 , Judge Malfair stressed that evidence on the issue of collateral consequences is required if a convicted person wishes to have this factor considered on sentencing. [ 46 ] Mr.

Sorenson did not produce any documentation regarding his time while incarcerated at North Fraser Pre-trial Centre from January 2021. Nevertheless, he states that he was isolated due to COVID-19 protocols and was later placed in induction units. He refers to six separate times when he was in isolation for about 12 weeks in total, some more than likely given necessary court appearances. He states that he tested positive for COVID-19 after an isolation period. [ 47 ] As discussed, Mr. Sorenson refers to being in the mental health unit where his movements were also restricted.

At that time, he received some mental health supports and he was also prescribed some medication, as was confirmed in the PSR. [ 48 ] The Crown has introduced evidence from personnel at North Fraser Pre-trial Centre which indicates that Mr. Sorenson’s time in isolation was as follows:

a) January 6–7, 2021: in isolation protocol and in separate confinement.

b) January 7–27, 2021: in induction unit but not separately confined.

c) August 14–September 15, 2021: in separate confinement for behavior/health based confinement.

d) February 2–24, 2022: in induction unit but not separately confined.

e) February 28–March 14, 2022: in induction unit but not separately confined.

f) June 7–16, 2022: in induction unit but not separately confined. [ 49 ] Mr. Sorenson states that there is more to his isolation time than is indicated by the dates of his isolation, as set out above. He has described those effects at this hearing again as limiting his movements, including to get exercise and fresh air, and his ability to interact with others.

Mitigating and Aggravating Factors [ 50 ] The Crown, Amicus and Mr. Sorenson refer to various mitigating and aggravating factors. Aggravating Factors [ 51 ] I reject Mr. Sorenson’s suggestion that his actions were not planned. I find the evidence does establish that Mr. Sorenson’s action involved some planning, although his methods were fairly straightforward. Unfortunately, the PSR provides little insight into Mr. Sorenson’s motivations beyond that he was angry at being dispossessed of his rental accommodation and becoming homeless again, and he wanted to lash out to express his anger. At today’s hearing, Mr.

Sorenson confirmed that this was his motivation. [ 52 ] Some questions arise as to why he targeted these two restaurants, both in close proximity to each other and both set on fire within a very short time frame in April 2020. Both restaurants serve Asian food and both restaurants are owned by Asian people. Neither owner had any connection to or knew Mr. Sorenson. That said, there is nothing overt in the circumstances to indicate any racial motivations and Mr. Sorenson denies any such motivation. [ 53 ] It is also of some significance that Mr.

Sorenson’s anger at his situation, arguably present in April 2020, is questionable in terms of his later planning and execution of the arson at the same restaurant, Sushi Oyama, some seven months later. At that later time, Mr. Sorenson used essentially the same techniques that he had employed for the first Sushi Oyama fire. I have no doubt that, at the time, Mr.

Sorenson would have had some appreciation for the destruction that he had caused earlier in April 2020. [ 54 ] The most obvious aggravating factor is the extensive damage suffered by both restaurants and that the Sushi Oyama restaurant was set on fire not once, but on two separate occasions. The substantial losses were mainly borne by insurance companies and some financial loss was incurred directly by the owners of the restaurants. In addition, employees of both restaurants would have been out of work while the damage was being repaired. [ 55 ] Mr.

Sorenson asserts that he knew that the restaurants were not occupied at the time of the fires, given that he frequented the area and that he had determined that all occupants had left. In any event, whether by luck or circumstance, no person was in the restaurants at the time of the fires. [ 56 ] In addition, the Burnaby Fire Department was called out to address all three fires and needless to say, the firefighters would have incurred some risk in their efforts to douse the flames. Mitigating Factors [ 57 ] Mr.

Sorenson’s guilty plea with respect to the third count, namely the second fire at the Sushi Oyama restaurant, is a mitigating factor. [ 58 ] In addition, as set out in the PSR, Mr. Sorenson appears to express some remorse with respect to his actions, although that was not repeated at the hearing itself. [ 59 ] There is also the matter of Mr. Sorenson’s mental health and substance abuse issues that may have been present at the time. [ 60 ] I accept that mental illness can diminish the degree of responsibility or moral culpability of an offender.

However, in Leer , the court stated: [69] In order for mental illness to be considered a mitigating factor, the accused must show a [causal] link between the illness and the criminal conduct. The illness must be an underlying reason for the improper conduct. [ 61 ] In this respect, the court in Leer referred to R. v. Day , 2013 BCCA 172 , a case also referred to by the Amicus . At para. 18 of Day , the court found that the person’s mental illness did not cause him to commit the arson. This finding was supported by a pre-sentence report with a psychiatric component.

The sentence of two years less a day plus two years’ probation was upheld. [ 62 ] Another helpful decision and related to the question of Mr. Sorenson’s mental health issues and its relationship with the offences is R. v. Doran , 2022 BCSC 1699 , cited by the Amicus . [ 63 ] Similar to Mr. Sorenson’s situation, in Doran , Justice Ker stated at paras. 65–66 that it was questionable whether the accused’s mental health challenges played a role in the arson and whether it could be considered a mitigating factor going to the moral blameworthiness of the offender.

Justice Ker stated: [67] For mental health to be considered a mitigating factor in sentencing, the offender must show a causal link between their illness and their criminal conduct. That is, the illness must be an underlying reason for the conduct. And, there must be evidence that a lengthy sentence would have a serious negative effect on the offender such that it should be reduced on compassionate grounds: R. v. Fabbro , 2021 ONCA 494 at paras. 25–26 . [68] That an offender experiences mental health issues is not automatically a mitigating factor on sentence.

It is only a mitigating factor if it is causally connected to the offending. The authorities make clear that it is an error in principle to assume an offender's moral blameworthiness for an offence is reduced automatically because they have a mental illness or other cognitive limitations. [69] The authorities have repeatedly affirmed that there needs to be detailed and specific evidence to establish and understand the relationship between an underlying mental health disorder and criminal behaviour. Where the causal link is not established as between

the offender's mental illness and the commission of the offence, moral culpability cannot be reduced: R. v. Merkel, 2021 BCCA 445; R.v. Milne, 2021 BCCA 166; R. v. Penttila, 2020 BCCA 63; R. v. Badhesa, 2019 BCCA 70 at paras. 42–44. [64] Later in Doran at para. 91, Ker J. suspected and inferred that the offender’s mental health issues had a role to play in the offence.She imposed a sentence of two years less a day and three years’ probation. [65] In this case, there is no evidence to establish a causal relationship between Mr.

Sorenson’s mental health issues, now diagnosedas ADD, and presumed to be extant at the time of the fires, and the arson counts. [66] I am not prepared to accept Mr. Sorenson’s suggestions in that respect, which are of course self-serving. Again, the PSR wouldappear to indicate that Mr. Sorenson’s overriding motivation was anger and frustration, not mental health concerns. [67] I accept that homelessness has become a significant concern and that it presents unique challenges to both the person who ishomeless and our communities. However, homelessness does not equate to mental illness.

Ancillary Orders [68] The Crown also seeks a DNA order with respect to Mr. Sorenson. The arson offence under s. 434 of the Criminal Code is asecondary designated offence (s. 487.04) and, as such, the Court has the discretion to grant such an order (s. 487.051(3)). Mr. Sorensondoes not oppose such an order. [69] I have considered Mr. Sorenson’s extensive criminal record, the circumstances surrounding the random nature of setting thesefires and the significant impact of the offences on the owners of the restaurants. In addition, I have considered the impact of such anorder on Mr. Sorenson.

In light of all these factors, I consider it appropriate to make an order that he produce a DNA sample. [70] Both the Crown and Amicus question the applicability of s. 109 of the Criminal Code, the weapons prohibition order, arisingfrom the arson counts. The only potentially relevant provision is s. 109(1)(

a) which requires such an ancillary order where a person isconvicted of an indictable offence, such as arson (in that it carries a sentence in excess of ten years), provided that it was an offence “inthe commission of which violence against a person was used, threatened or attempted…” [71] Such an ancillary order was granted in other cases involving arson, including R. v. Clifford, 2015 BCSC 875 (para. 35), Leer(para. 133) and Laforge (para. 112). [72] In Clifford at para. 36, Justice Macintosh found that the arson (and mischief) counts involved “violence against a person beingused, threatened, or attempted”.

In support, he cited R. v. Samery (2007), (ON SC), 219 C.C.C. (3d) 435 (Ont. S.C.)at paras. 53–55, aff’d 2007 ONCA 643.

In Clifford, the arson was motivated by personal revenge at a residential property whichsupported the finding of violence and a threat of violence against the victims. [73] In Leer, the offender, who had a mental illness, was motivated by personal hostility toward her mother and the fire was set at aresidential townhome development in the early evening when other occupants would be home. [74] Finally, in Laforge, the offender set the fire when staff and customers were present although they had exited the store, and thesepersons had experienced significant psychological and emotional harm as a result. [75] In considering the circumstances of Mr.

Sorenson’s actions, I cannot discern any actual violence or threat of violence against anyperson in his commission of the offences. Mr. Sorenson asserts that he was not violent against any person; rather, he acted in the dead ofthe night when all of the restaurants were ostensibly closed for business. [76] In that event, I conclude that an ancillary order under s. 109 of the Criminal Code is not appropriate in the circumstances.

Sentencing Discussion [77] The case law supports that the principles of sentencing deserving greatest emphasis for these arson charges are deterrence,denunciation and protection of the public. Mr. Sorenson set fire to two separate buildings and came back the second time to do moredamage still to one of the restaurants. The damage suffered was significant and affected the buildings and many persons, including theowners of the businesses and the employees. [78] I have also considered the moral blameworthiness of Mr. Sorenson in terms of the gravity of the offence and degree ofresponsibility of the offender.

I do not consider that Mr. Sorenson has established any mental health challenges that gave rise to hisactions in the sense of reducing his culpability. [79] By all accounts, Mr. Sorenson has been unhoused or a person living on the margins of society for some time now. I appreciatethat his substance abuse issues and his recent ADD diagnosis provide some insight into his personal circumstances. However, the factthat Mr. Sorenson is only now seeking to address those issues suggests that he requires significant assistance to avoid any repeat offencesonce he is released from jail. [80] Mr.

Sorenson asserts that he is at a low risk to reoffend. [81] However, I conclude that there is considerable doubt about Mr. Sorenson’s prospects for rehabilitation. While no doubt his timein pre-trial custody has caused Mr. Sorenson to reflect upon that matter, I have lingering concerns about his personal circumstances,mental health or ADD diagnosis and substance use disorders, as those may affect his future actions. It remains to be seen whether his

assessment in prison reveals any other mental health diagnoses. In fact, the PSR writer recommended that any non-custodial sentence should include conditions to address his substance misuse. [ 82 ] Overall, I consider that Mr. Sorenson still stands as at least a moderate risk of reoffending. [ 83 ] I agree with the Crown that a fit sentence for all three offences is two years for each count, to be served consecutively, in accordance with s. 718.3(4) (b)(

i) of the Criminal Code . Each of the fires represented a separate act of the deliberate setting of a fire. Mr. Sorenson lit the fire at the Jang Mo Jib restaurant, and then hours later, committed the same act at an entirely new restaurant. The third offence involved the same act almost seven months later at Sushi Oyama restaurant. Each fire resulted in separate harm being suffered by the restaurants’ owners. In coming to this conclusion, I have considered the comments of the court in R. v.

Anderson , 2020 BCCA 297 at paras. 81–82 , relating to the appropriateness of consecutive sentences. [ 84 ] In addition, I agree with the Crown that an aggregate sentence of six years is unduly excessive and harsh and should, based on the totality principle, be reduced by one year, to five years in total: Anderson at paras. 87–88 and 90 .

The Amicus refers to a similar approach being taken in Panek at paras. 97–98 , where the judge reduced an overall sentence of six years jail for two separate arson offences down to four years based on the totality principle. [ 85 ] As in Panek (para. 95 ), these arsons were somewhat random and Mr. Sorenson’s motivations for setting the fires is unclear, save for the suggestion in the PSR that he was simply angry and frustrated, arising from his unrelated personal circumstances, and that he wanted to take it out on someone else. [ 86 ] I have also considered Mr.

Sorenson’s assertions for a reduced sentence by reason of what he described as a harsher sentence due to his periods of isolation in jail. Overall, I consider Mr. Sorenson’s description of his time in isolation as vague. Having said that, while the evidentiary basis for his argument is thin, I have considered his submission such as it is. [ 87 ] As noted by the Crown, the COVID-19 pandemic was underway in January 2021 when Mr. Sorenson began his extended pre-trial jail time and even earlier when the April 2020 Fires were set. To that extent, such COVID-19 protocols were certainly foreseeable at the time.

It is also the case that Mr. Sorenson might have endured restrictions in his life in any event arising from COVID-19 pandemic generally in our community as a result, although I acknowledge that would have differed from the protocols at North Fraser Pre-trial Centre. [ 88 ] Further, it is the case that Mr. Sorenson was in the mental health unit for his own benefit to assist him in addressing his mental health concerns. To that extent, the COVID-19 restrictions appear to have resulted in only incremental restrictions on him beyond that relating to the mental health unit. By all accounts, Mr.

Sorenson has benefitted from his time on the mental health unit, as noted in the PSR and it is expected that those psychological supports will continue for him while in custody. [ 89 ] In addition, as argued by the Crown, Mr. Sorenson’s time in isolation due to his own behavior cannot be considered as a basis upon which to lessen his sentence as a collateral consequence. [ 90 ] I conclude that any collateral consequence to Mr. Sorenson arising from COVID-19 protocols effective during his time in custody is limited at best and certainly does not justify the reduction of the sentence by 420 days, as Mr.

Sorenson proposes. I do not consider that these circumstances overwhelm the analysis regarding what is otherwise a fit sentence for these three serious offences. [ 91 ] I conclude that the appropriate sentence for all three offences, in absence of pre-sentence custody, is five years. In addition, I would allow Mr. Sorenson credit for his time in pre-trial custody at the usual 1.5:1 basis. Final Decision [ 92 ] Mr. Sorenson, please stand. I sentence you to a total jail term of two years for each count, for a total of six years, which is to reduced by one year on the totality principle.

You will be given credit for 1,262 days (or three years, 167 days) in pre-trial custody, such that the remaining jail term will be one year and 199 days. [ 93 ] In addition, at the end of your incarceration, you must comply with a probation order for a term of three years, subject to the following conditions:

a) You must keep the peace and be of good behaviour.

b) You must appear before the court when required to do so by the court.

c) You must notify the court or the probation officer two days in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation.

d) You must report in person to a probation officer at 275 West Cordova Street, Vancouver, BC within two business days after your release from custody unless you have obtained, before your release from custody, written permission from the probation officer to report elsewhere or within a different time frame. After that, you must report as directed by your probation officer.

e) When first reporting to your probation officer, you must provide them with the address where you live and your phone number. You must not change your address or phone number without notifying your probation officer in writing (at least 14 days) in advance of any change.

f) If you are evicted or expelled from the place where you are living, you must tell your probation officer immediately. If the office is closed, you must contact your probation officer immediately when the office opens on the next business day.

g) If you are arrested, detained or served a sentence for another offence, you must report to your probation officer within two business days of your release from custody, or completion of the sentence.

h) You must have no contact or communication, directly or indirectly with Joo Jae Park and Pyong Chong.

i) You must not go to, or be within 100 meters of, any place where Joo Jae Park and Pyong Chong lives, works, attends school, worships, or happens to be. If you see either of them, you must leave their presence immediately without any words or gestures.

j) You must not go to or be found in the area in the City of Burnaby, BC bounded by Grange Street on the north, Imperial Street on the south, Nelson Avenue on the west and Dufferin Avenue on the east.

k) You must attend, participate in and complete any intake, assessment, counselling, or education program as directed by your probation officer. This may include, but is not limited to counselling or programming for: i. anger management; ii. alcohol or drug addiction; and iii. mental health.

l) Having consented in court, you must attend for a psychiatric intake, assessment or treatment program as directed through Forensic Psychiatric Services, as directed by your probation officer.

m) Having consented in court, you must do the following: i. Report to Forensic Psychiatric Services or elsewhere for any intake, assessment, counselling or treatment as directed by your probation officer. ii. Attend all scheduled appointments with the professionals in charge of your mental health care. iii. Take all medications and medical treatment prescribed for you by those professionals. iv. Provide your probation officer with the names, addresses, and phone numbers of those professionals. v. Give those professionals a copy of this order. vi.

If you decide not to follow these directions, you must immediately report that fact to your probation officer. You have consented in court to these professionals notifying your probation officer if you fail to attend for an appointment or refuse to take the prescribed treatment or medication.

n) You must not possess any incendiary device, flammable product or explosive substance, including but not limited to lighters, matches, jerry cans, fire accelerants, or fireworks, outside of your residence except with the prior written permission of your probation officer. You must carry the permission, which may be in electronic format, when you possess any of these items outside your residence. [ 94 ] Finally, pursuant to s. 743.21 of the Criminal Code , during Mr. Sorenson’s remaining time in custody on these charges, I grant an order prohibiting him from communicating, directly or indirectly, with Joo Jae Park and Pyong Chong. “Fitzpatrick J.”