R v Stuart, 2023 ABCJ 99

In the Alberta Court of Justice Citation: R v Stuart, 2023 ABCJ 99 Date: 20230428 Docket: 200535110P1 Registry: Calgary Between: His Majesty the King - and - Aaron Robert Stuart Reasons for Sentence of the Honourable Justice A. J. Brown Sentence [ 1 ] For the offence of arson, Mr. Stuart is sentenced to 2 years less a day, to be served in the community, followed by 2 years’ probation. Issue [ 2 ] What is a fit and appropriate sentence for arson causing more than $1million damage, an offence committed by first-time offender Mr. Stuart while he was in a psychotic state caused in part by his ingestion of cannabis?

Positions of the Parties [ 3 ] The Crown argues that a 3-year penitentiary sentence should be imposed to address the primary sentencing objectives of denunciation and deterrence engaged by the inherently dangerous offence of arson. [ 4 ] Defence Counsel’s initial position, before the restored availability of a conditional sentence, was that Mr. Stuart’s exceptional circumstances, including reduced moral blameworthiness and serious physical medical problems, supported either a 3-year suspended or a 90-day intermittent sentence followed by lengthy probation.

Now, Defence Counsel argues, in the further alternative, that a 2-year less 1-day conditional sentence followed by one year of probation would be a fit sentence. Authorities Considered

[5] I reviewed R v Ayorech 2012 ABCA 82 and R v Shevchenko 2018 ABCA for the legal principles governing mental illnessas a factor in sentencing, R v Gibbon 2009 ABPC 265 and R v Paradee 2013 ABCA 41 for serious health (mental or physical) problemsas a consideration militating against incarceration, R v Wesslen 2015 ABCA 74 for commentary on the use of extended probation in lieuof incarceration, and the following authorities for principles of sentencing, generally, as well as the role of the conditional sentence: R vBissonnette 2022 SCC 23; R v CAM (SCC), [1996] 1 SCR 500; R v Gladue (SCC), [1999]1 SCR688; R v Hills 2023 SCC 2 , 2023SCC 2; R v Ipeelee 2012 SCC 13; R v Lacasse 2015 SCC 64; R v Parranto 2021 SCC 46; andR v Proulx 2000 SCC 5. [6] I reviewed the following comparator cases: R v Adzua 2018 ONSC 1896; R v Bogue 2017 BCPC 58; R v Clifford 2015BCSC 875; R v Day 2013 BCCA 172; R v Dennis 2018 BCPC 270; R v Fewer [2004] NJ 433 (PC); R v Fewer 2019 NLSC 221; R vIreland 2011 ABPC 134; R v M (CP) 2009 ABPC 58; R v Rich 2015 ABPC 261; R v Sharun 2017 BCPC 367; and R v Yellowknee2017 ABCA 60.

Appendix A to this decision summarizes the facts and sentences of these comparator cases. Facts [7] Around 6:20 am on March 4, 2020, Mr. Stuart called 911 requesting police and paramedics after having slashed his throatseveral times. He made suicidal comments, as well as saying that he would shoot anyone who came to his door. He also gave thedispatcher false information about his location, although his call was tracked to his apartment and police arrived on scene in short order. [8] Once police officers had contained Mr.

Stuart’s apartment, they talked to him through the front door, trying to coax him out.He continued to make suicidal comments, saying that he would light his apartment on fire and shoot any police officers who tried toenter. [9] Police began evacuating residents from other units in the building while continuing efforts to have Mr. Stuart leave hisapartment. Eventually, Mr. Stuart said that he would come out with a knife; the police told him many times not to have anything in hishands. [10] Around 8:04 am, Mr.

Stuart opened the door, popped his head out and said, “Finish me.” “We’re not going to do that” was theanswer from the police, to which Mr. Stuart replied, “You have to.” Then, he did leave the apartment, clad only in his underwear,covered head to toe in blood and holding a large hunting knife. [11] After repeated commands to drop the knife were ignored by Mr. Stuart, a police officer fired a non-lethal round of munitionthat struck Mr. Stuart and caused him to retreat into his apartment. [12] Black smoke began spilling into the hallway from Mr. Stuart’s apartment and, within minutes, Mr.

Stuart jumped from hisapartment, landing on his back. [13] As a result of the fire, throat-slashing and fall from the third floor, Mr. Stuart suffered serious injuries: 35% TBSA (TotalBody Surface Area) burns to his face, arms, legs and back; a neck laceration; an L 1-2 fracture dislocation; a C 4-5 fracture; collapsedleft lung; and rib fracture. He was treated in hospital from March 4 until May 26, 2020. [14] The investigation of the scene confirmed that the fire had been intentionally set, although without the use of an accelerant.Mr. Stuart’s pet cat, Shadow, was found deceased, likely due to smoke inhalation.

The estimated damage to the apartment building isover $1 million and is the subject of a civil lawsuit. [15] Two days after his discharge from hospital, Mr. Stuart met with the investigating police officer to be arrested and interviewed.He reported remembering many of the events of March 4, but did not remember setting the fire. [16] A victim impact statement filed by the owner-managers of Mr. Stuart’s apartment building spoke to the devastating financialand emotional stress visited on their business, lives, and tenants’ lives. Mr. Stuart [17] Mr. Stuart pled guilty to the arson offence.

He has been compliant with his release conditions since his release on May 28,2020, almost three years. [18] Now 41, he was 38 at the time of the offence, and has no prior criminal record. [19] He suffered a chaotic and dysfunctional upbringing. His parents divorced when Mr. Stuart was only 2 and his older sister, 5.Gail Stuart and the children then lived in a succession of different places, often in campgrounds, until Bill McCullough became Mr.Stuart’s stepfather for five years. Although a family move to Calgary made the housing situation stable, Mr.

McCullough had substanceabuse issues, suffered from Bi-polar Disorder and was not compliant with his medication regime, so was a volatile and erratic presence inthe home; he was physically and emotionally abusive towards Mr. Stuart. [20] Gail Stuart ended her relationship with Mr. McCullough in 1989 and, some months later, met and eventually married MikeDawson. Mr. Dawson was a kind, supportive stepfather to Mr. Stuart. Although his marriage to Gail Stuart lasted only four years, Mr.Dawson maintained contact with Mr.

Stuart for a time after the break-up and, despite later losing touch for a long while, has now comeback into his life. Mr. Stuart has been living with Mr. Dawson since his discharge from hospital. Mr. Dawson came to the sentencinghearing and confirmed his unwavering support for Mr. Stuart. [21] When Mr. Stuart was 10, the family found itself in a long period of turmoil as Mr. Stuart’s sister had fallen into a bad crowdand was using illicit drugs. By all accounts, Mr. Stuart’s needs and feelings were overlooked while his mother and Mr. Dawson weretrying to deal with his sister’s issues.

He suffered sexual abuse by a half-brother’s mother when he was 12 years old.

[ 22 ] On the schooling side, Mr. Stuart did not integrate well; he was bullied and bored academically. He left school at age 14 and bounced around living with different family members, friends, and experiencing periods of homelessness. Nonetheless, highly intelligent, he was able to support himself financially until age 22. [ 23 ] Between the ages of 22 and 26, Mr. Stuart descended into depression following his biological father’s suicide, and was unable to keep a job.

At age 26, he was able to secure and maintain a position as a restaurant manager, having been motivated to stabilize his life on learning of his mother’s diagnosis of cancer. His mother moved in with him and he cared for her in his home until her death in 2011. [ 24 ] By this time, Mr. Stuart’s sister had also returned to Alberta and stabilized her life. Today, his sister is a strong support for him. [ 25 ] Although having little formal education, Mr. Stuart has become a highly skilled IT consultant. When his mother became ill, he joined her IT support company and took it over after her death.

In that capacity he worked as in house IT manager from 2013 for Moody’s LLP; he would be working there still were it not for the injuries he suffered on March 4, 2020. [ 26 ] His employer spoke very highly of Mr. Stuart and viewed his offence as entirely out of character. [ 27 ] Dr. Yacoub prepared a risk and mental health assessment for the sentencing hearing, and also gave viva voce testimony. Dr. Yacoub’s opinion included the following: • Mr.

Stuart’s risk of recidivism is low. • He experienced psychotic symptoms for a couple of weeks before the arson offence, including a Mental Health Act Form 10 presentation to an emergency department on February 29. • He had become guilt-stricken and obsessed with the notion that he had become involved sexually with an under-age girl in the Dominican Republic, and decided to end his life. • He developed paranoid beliefs that he was being spied upon; • He “experienced a psychotic illness, likely a brief, psychotic disorder.” (p. 16, Exhibit 3) • A drug screen conducted on March 4, 2020, was positive for cannabis; cannabis can be detected for up to four weeks before the test.

Mr. Stuart reported that he had not consumed cannabis for the week before March 4. • Cannabis consumption was but one of several factors leading to Mr. Stuart’s psychotic illness. • Mr. Stuart’s Gambling Disorder is in remission, and his Alcohol and Cocaine Use Disorder is in reported remission. He continues to suffer from a mild Cannabis Use Disorder. • He needs a comfortable environment and to remain under a physician’s care to deal with his physical injuries and his mental health. • “Mr. Stuart is not psychotic at present. He is not suffering from a major depressive disorder or bipolar disorder.

He has reasonable insight into his difficulties. Mr. Stuart’s mental illness likely impaired his judgment at the time of the offence.” (p. 16, Exhibit 3) [ 28 ] Since his discharge from hospital, Mr. Stuart has been under physicians’, including psychiatrists’, care and has had regular sessions with a counsellor. He has been compliant with his prescribed medication. His counsellor, a Registered Psychotherapist and Clinical Counsellor, reports: “. . .

I find Aaron to be open, forthcoming, and consistently deliberate in his efforts in addressing his issues.” (Exhibit 10) Physically, despite improvement in his mobility allowing him to walk short distances without the aid of a walker, Mr. Stuart continues to suffer serious bladder and bowel issues. Sentencing Principles Generally and the Conditional Sentence Order [ 29 ] Canadian principles of sentencing, first codified in 1996, included restraint, and use of jail as a last resort.

In support of Parliament’s aims of reducing incarceration and increasing restorative justice options, the conditional sentence (CSO), a jail sentence served in the community, was created.

Initially, a CSO was an available sentencing option for many offences but over the ensuing 26 years, it became less and less so, until the passage of bill C-5 in November 2022 restored its availability for all but the most serious offences. [ 30 ] The history of the CSO and the body of Supreme Court of Canada sentencing cases, including Gladue , Proulx , Ipeelee , CAM , Lacasse , Parranto , Bissonnette and Hills , make clear that the principles governing sentencing are: • It is an individualized process. • Caution should be exercised when using imprisonment solely to address general deterrence. • Jail should be used as a sentence of last resort. • Restraint, that is, imposition of the least onerous appropriate sentence, should be exercised. • And, restorative justice should be enabled by supporting rehabilitation of the offender, including by making amends and acknowledging the harm done to victims and the community.

Arson [ 31 ] Fire is dangerously unpredictable, capable in an instant of turning into a deadly, destructive inferno, so it is that arson is one of the most serious offences in the Criminal Code , with a maximum penalty of 14 years. [ 32 ] The primary sentencing objectives engaged are denunciation and deterrence. Federal sentences of two years or more are common for arson crimes.

Mental Illness and Reduction of Moral Blameworthiness [ 33 ] Although the seriousness of an offence does not decrease if an offender suffers from a mental disorder, the importance of denunciation and deterrence as sentencing objectives is lessened as a result of the offender’s diminished responsibility. ( Ayorech , Shevchenko ) Poor Health as a Consideration in a Sentence of Incarceration [ 34 ] Extreme mental and physical health problems have, on occasion, dictated that a sentence of incarceration was unmanageable. ( Gibbon , Paradee ) Parity in Arson Sentencing [ 35 ] The comparator cases in

Schedule A support a broad range of sentence, from a 3-year suspended sentence to 4 years’ incarceration. Within that range, one third of the comparator sentences was a 2-year less one-day sentence, with probation of varying lengths to follow; these sentences and the one-year sentence in Yellowknee were all imposed at a time when a CSO was not available for an arson conviction. [ 36 ] The three suspended sentence ( Adzua , Bogue , Sharun ) and one of the 2-years less one day cases ( Day ) were the most similar on facts and circumstances of the offender to Mr. Stuart’s case.

While Clifford , in which a 3-year sentence was imposed, is highly distinguishable as a sentence imposed after trial for a planned, vengeful arson as retaliation for an unsuccessful outcome in a child custody dispute. [ 37 ] The aggravating factors in Mr. Stuart’s case are: the amount of damage; the danger to many residents of the apartment building; the threats to police; and, the financial and emotional harm visited on the building owners and residents. [ 38 ] The mitigating factors are: an early guilty plea; a confession; Mr.

Stuart’s remorse; his support in the community; his low risk to re-offend; his out of character offending behaviour as the result of a psychotic episode; and, his compliance during almost three years of release conditions that included psychiatric and psychological treatment. [ 39 ] Considering these aggravating and mitigating factors, assessed in light of the comparator cases, the appropriate sentencing range for Mr. Stuart is a 3-year suspended sentence to incarceration for 2 years less one day, followed by probation.

Conclusion [ 40 ] In view of the renewed availability of the CSO and with that, the confirmation of Parliamentary intent to reduce over- incarceration and give effect to restorative justice, Mr.

Stuart’s reduced moral blameworthiness, his physical and mental health challenges and the appropriate sentencing range including a sentence of 2 years less one day, a fit and proper sentence is one of a CSO of 2 years less one day, followed by 2 years of probation. [ 41 ] This is to give effect to the sentencing principles and objectives of denunciation, deterrence, restraint, restorative justice, rehabilitation, acknowledgment of harm done and making reparations. [ 42 ] I have concluded that Mr.

Stuart will not pose a danger by serving his sentence in the community and, in the highly unlikely event that he should re-offend, the community would be protected by the termination of the conditional sentence. Heard on the 16 th day of March, 2022, the 8 th day of August, 2022, the 10 th day of November, 2022, the 31 st day of March, 2023, and the 24 th day of April, 2023. Dated at the City of Calgary, Alberta this 28 th day of April, 2023. A. J. Brown A Justice of the Alberta Court of Justice

Appearances: T. Amin for the Crown E. Ryland, M. McAvoy for the Accused

Appendix A NAME GP? AGE FACTS RECORD OTHER FACTORS SENTENCE Adzua Yes 31/36 Suffering from a hypomanic episode – at the time, undiagnosed bipolar – set fire to his apartment. ˃$148,000 damage done; other apartment residents endangered; fell from balcony. Spent 10 days in intensive care. No Full compliance during 5 years of bail conditions. Supportive family. 3-year suspended sentence Bogue Yes Set fire to rented home while in drug- induced psychosis. ˃$315,000 damage. Set another fire, again in drug- induced psychosis, while on bail. No Very low risk to re- offend. Strong family support.

In full remission from psychosis and drug addiction. 3-year suspended sentence Clifford No 49 Planned, vengeful destruction by fire of garage of son’s maternal grandparent’s heavily wooded rural property. No Veterinarian who retaliated against mother of his son and her parents after unsuccessful outcome in custody dispute. 3 years Day Yes 47/48 After drinking all day, set fire to a camper parked near a home on the family farm. Immediately after setting the fire, woke his brother and family so that they would not be injured. The fire spread to an adjacent motor home and caused heat damage to a van.

Extensive (32), mainly breaches of probation. Released on probation seven days before. Long history of schizoaffective disorder, exacerbated by alcohol and drug abuse. Grew up in stable and supportive family. 2 years – 1 day + 2 years’ probation

Dennis Yes 31 After drinking and taking drugs, claiming that he wanted to return to the penitentiary, set a fire in hotel room. Most of the resulting damage was by water, the sprinkler system Bad record for violence and breaches, including 5-year sentence for sexual assault Extreme Gladue factors, including sexual abuse between ages 2 and 7, violently raped at age 11, foster homes between 7 and 12, substance abuse since childhood.

High risk for general violence, low for arson. 2 years + 3 years’ probation Fewer (2019; NLSC) Yes 29 After drinking and having a disagreement with his mother, used an accelerant to set fire to shed adjacent to grandparents’ house in a residential area. Shed was destroyed. Very dated, not relevant. Supportive family. Some symptoms of PTSD. Alcohol abuse disorder, possible cannabis use disorder. 2 years + 2 years’ probation Fewer (2004; NLPC) Yes 34 Burned house in which younger brother had been sexually abused as a child; met police outside burning building to give that explanation.

Record spanning 10 years, including assault, threats and many breaches. Prolonged alcohol abuse. Fully cooperative with police and all in criminal justice system. 27 months Ireland Yes 50 After several days of drinking and smoking crack cocaine, set fire to his apartment in a building of 33; 12 people in building at the time. Estimated ˃$100,000 damage. Fairly lengthy but with significant gaps; little weight.

Limited education; homeless for 2 years 2 years – 1 day + one year’s probation M (CP) Yes 18/19 After drinking, set four fires one night (early morning) and again four days later, nine fires in a 6-block radius. The fires were set to a variety of items of personal property, including vehicles, a mattress, patio furniture, etc. Youth record, 15 convictions for property offences and breaches.

Remorseful; cooperative with investigation; high risk to re-offend; alcohol abuse since age 13. 2½ years + 2 years’ probation Rich 67 Revenge fire setting in psychiatric unit of hospital; 33 psychiatric patients, 22 over 65, 17 staff evacuated Among others, two previous arson convictions (17 months + 3 years’ probation; 2 years) Long psychiatric history with frequent hospital admissions and escapes.

Previous arsons were are also revenge crimes. 4 years Sharun Yes 27 Suffering a psychotic break due to an undiagnosed mental illness, set fire to his apartment in an attempt to commit suicide. ˃$37,000 damage, largely limited to his apartment. No one else injured. No Low risk to re-offend. Fully compliant with release conditions, including psychiatric treatment. Supportive family and employer. Genuinely remorseful. Well educated and employed. 3-year suspended sentence

Yellowknee Yes 45 While bound by release conditions to abstain and to have no contact with his spouse, he sent her texts saying that he would burn their home down. Intoxicated, he set fire to their trailer; it and the property of a third party were destroyed. Not stated. Gladue factors. Sober since the offence. Taken steps to address alcohol addiction. 12 months + 12 months’ probation