Her Majesty the Queen - v. -, 2011 SKPC 65

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 065 Date: May 2, 2011 Information: 39982724 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Haley Wiklun Appearing: Val Adamko For the Crown Treena Sikora For the Accused SENTENCING DECISION M.L. GRAY , J [ 1 ] Ms. Wiklun has entered a guilty plea to intentionally or recklessly causing damage by fire to a dwelling, knowing that the property was inhabited or occupied contrary to

section 433 of the Criminal Code . On the offence date, June 21, 2009, the apartment which was set on fire was occupied by one Joseph Figueiredo with whom the accused had a seven year common-law relationship. Prior to the offence, they had separated but maintained an off and on relationship. At about 1:30 a.m., Ms. Wiklun attended to the apartment in which Mr. Figueiredo lived and demanded that some of her property be returned. Her behaviour wakened the neighbours. She left the area but returned at about 5:00 a.m., again demanding her clothing and purse and again wakening the upstairs tenants.

She went to the back of the building where she retrieved certain property. She clothed herself in a pair of coveralls and was seen using a lighter to set

some paper on fire; this was tossed into the bedroom window of the basement suite occupied by Mr. Figueiredo. The suite was quickly engulfed in fire. Fortunately, the upstairs tenants had been awakened by the accused demanding her possessions and were able to collect their 14 month old baby and leave the apartment building while warning others. Someone went back into the building and wakened Mr. Figueiredo who was still sleeping on his living room sofa. Mr. Figueiredo was treated for minor smoke inhalation. [ 2 ] After throwing the lit paper into the apartment, the accused was seen walking away.

Police officers found her a number of blocks from this apartment and noted that she smelled of alcohol. The officers also found that she had a lighter in her possession. [ 3 ] The fire caused $30,000.00 damage to the building which was covered by insurance. [ 4 ] Mr. Figueiredo would not provide either a witness, or victim impact statement. He told the author of the pre-sentence report that he did not want Ms. Wiklun to go to jail even though he was upset with her for destroying personal property which he may be unable to replace.

Photographs depicting the damage to the apartment were filed as exhibit P-1 in the sentencing hearing; Mr. Figueiredo’s bedroom was totally destroyed. [ 5 ] The Court heard the circumstances of the offence on August 18, 2010 and the accused acknowledged, for the record, that those were the facts to which she was admitting; a pre-sentence report was ordered to address and examine any addictions issues or mental health issues. On the date scheduled for sentencing, a further adjournment of the matter was requested by counsel for Ms. Wiklun for the purpose of obtaining a psychological assessment.

Sentencing submissions were heard on April 5, 2011; in addition to the representations, the Court had the following to consider: a pre-sentence report prepared for September 29, 2010; a psychiatric assessment, dated June 24, 2009; a psychological assessment, dated April 1, 2011, and Ms. Wiklun’s prior criminal record. In addition, the Court was provided with the following cases for consideration: R. v. Quigley , 1998 Carswell BC 494 ; R. v. Jewell , 2009 CarswellNWT 28 ; R. v. Combdon , 2008 CarswellNfld 107 ; R. v. Campeau , 1999 CarswellOnt 1990 ; R. v. Robert , 1998 CarswellOnt 719 and R. v.

Sawkins, 2003 ABCA 165 . [ 6 ] The Crown takes the position that the appropriate disposition is three years incarceration and that denunciation and deterrence are the primary sentencing principles to be considered. The following are put forth as aggravating factors:

a) the accused was familiar with the building and knew that it was an occupied apartment building;

b) the property loss was significant;

c) the offence occurred in the early morning when one would anticipate the residents to be asleep;

d) the occupants and fire personnel were put at risk by the actions of the accused;

e) the complainant, Mr. Figueiredo lost his residence as well as personal possessions; and

f) finally, although the complainant and the accused were not living together at the time of the offence, they previously had done so for a number of years. [ 7 ] Counsel for the accused points to the following mitigating circumstances:

a) Ms. Wiklun faces a number of psychiatric issues;

b) in the past 18 months, she has taken many steps toward her own rehabilitation. In particular, she sees a psychiatrist, Dr. Baziany, regularly and has kept every appointment. She has been diligent about taking medications as prescribed and complying with the regimen of treatment recommended. Some of these appointments have included Ms. Wiklun’s mother, and Dr. Baziany has been of assistance in reintegrating this family.

c) Ms. Wiklun has the support of her mother who was in Court even though her own mother was ill. Counsel for the accused argues that a lengthy period of incarceration would do little to assist Ms. Wiklun in the progress which she has made. She argues that although custody may be the appropriate disposition, it should be of an intermittent term in order to permit Ms.Wiklun to follow her medical regimen.

CIRCUMSTANCES OF THE OFFENDER [ 8 ] Ms. Wiklun is a 46 year old woman with three convictions: break and enter, false pretences and theft. The last of these was registered in 1989, although she was placed on a s. 810 recognizance for six months in 1991. The pre-sentence report describes a turbulent childhood with frequent arguments with her mother which resulted in her being placed in foster care or with family friends for periods of time from the age of 11 until she was 18, and began to live independently. There were many behavioural issues throughout adolescence.

She has had three marital partners and reports being physically abused in each of those relationships. The most recent of these was with the victim in this matter, Mr. Figueiredo. They agree that violence and substance abuse coloured their relationship. [ 9 ] Ms. Wiklun reported that she first saw a psychiatrist at about age 15 when she was diagnosed with attention deficit hyperactivity disorder (ADHD). Since August 2008, she has been under the care of Dr. Baziany, a psychiatrist who opines that, in addition to ADHD, Ms.

Wiklun has a bipolar disorder, and a personality disorder with borderline traits: see psychiatric report dated June 24, 2009 at p. 3. In June 2009, Dr. Baziany considered that she also abused alcohol and possibly marihuana; he considers her to be a patient who is compliant with treatment and notes that she has never missed an appointment with him. [ 10 ] Ms. Wiklun was assessed by the author of the pre-sentence report as a low risk to re-offend. He further notes that Ms. Wiklun has done well in the community and has taken steps to recognize and deal with situations which put her at risk.

In particular, the author of the pre-sentence report confirmed that Ms. Wiklun has not abused substances for the last year. She has expressed concern about facing a custodial sentence. At p. 7 of the pre-sentence report, the author concludes: “Regardless of her sentence, it will remain important for Haley to maintain her use of prescribed medication. It will also be important for her to continue appointments with Mental Health.” [ 11 ] Ms. Ambrose, a registered psychologist, concluded, at p. 15 of her report, that: Haley has been diagnosed with many mental disorders from childhood to present.

It is not the purview of this writer to add yet another diagnosis to the already lengthy list. It is the opinion of the writer that Haley suffers from complex posttraumatic (sic) stress, an umbrella concept which incorporates the multiple mental health disorders with which she has been diagnosed... Later, she notes that Ms. Wiklun is on medication for ADHD and a bipolar disorder, has attended an education group through Mental Health Services as well as bipolar group therapy. In addition, she participates in a number of activities including: Thai Chi classes, recovery quilt, bowling and karaoke. Ms.

Ambrose points out that Ms. Wiklun has had “a significant degree of success” in dealing with her mental health issues in the last 20 months. THE LAW [ 12 ] I have reviewed the following cases dealing with s. 433 of the Criminal Code : (

i) In R. v. Quigley, 1998 CarswellBC 494 , the British Columbia Court of Appeal reduced an 8 year sentence, imposed after trial, to one of 5 years. In that instance, the 56 year old accused was angry with the landlord of some residential property, poured gasoline about the premises and set it alight. Although no physical injuries were sustained, one tenant suffered significant emotional harm. The accused was diagnosed with a personality disorder with paranoid tendencies and was very resistant to engaging in treatment. (ii) In R. v.

Jewell, 2009 CarswellNWT 28 , the North West Territories Supreme Court sentenced a 27 year old woman with a prior criminal record to three years. Because it was very cold and she needed a place to stay, her estranged common-law spouse allowed her to

spend the night on the sofa. He returned to the bedroom he was sharing with his current girlfriend. The accused set fire to the sofa and left the building. No lives were lost, but the total damage and loss was estimated to be $3,200,000.00. She entered a guilty plea. (iii) The Newfoundland Supreme Court in R. v. Combdon, 2008 CarswellNfld 107 , imposed a sentence of 3 years less one year credit for pre-sentence custody. The accused, who was despondent about some serious legal issues, threatened to burn his cabin while he and his girlfriend were in it.

He splashed kerosene about, but was dissuaded by his girlfriend from lighting it. She mopped up the flammable fluid, but the next morning discovered that a blaze had been set under a table. She and the accused fled into freezing temperatures wearing only light clothing. The home was totally destroyed. (iv) In R. v. Campeau, 1999 CarswellOnt 1990 , the Ontario Court of Appeal upheld an 18 month period of incarceration. The accused went on to the complainant’s porch twice, pouring gasoline each time. Three adults and two children were sleeping in the home at the time. The accused then set the house on fire.

Although he had a prior criminal record, there was no discernible motive for his actions. (

v) The Ontario Court of Justice in R. v. Robert , 1998 CarswellOnt 719 , similarly imposed an 18 month sentence. While putting his lawn mower away in the garage attached to his matrimonial home, the accused poured gasoline on a stack of newspapers and set a fire. He then alerted his wife, children and in-laws who were inside the home and called emergency services. This family had previously lost their home to fire and there was no apparent motive for the accused’s actions. At the time, a Conditional Sentence Order was available, but deemed inappropriate. (vi) In R. v. Sawkins , [2003] A.J.

No. 620 , the Alberta Court of Appeal imposed a 1 year custodial sentence rather than the two years to which the accused had originally been sentenced. Few facts are reported except that the accused was 42 years old, had no prior record and was thought to have been in a disassociative state at the time he set the fire. He had apparently made “good progress” while in jail pending the appeal. (vii) The Saskatchewan Court of Appeal upheld a sentence of 16 months incarceration, consecutive to any other sentence being served, and followed by one year of probation in the decision of R. v. Jobb, 1990 SKCA (SentDig) 6.

The accused was 21 years old with a limited criminal record. He suffered with depression as well as addictions issues. He set fire to a forest in the vicinity of several homes. $3,500.00 was expended in firefighting costs; no other losses were sustained. [ 13 ] In determining an appropriate sentence, the Court is bound by the purposes and principles of sentencing as set out in s. 718 to s. 718.2 of the Criminal Code . Briefly stated, the purpose of sentencing is to contribute to the respect for the law and a just and safe society by imposing sanctions for criminal conduct.

Those sanctions must address one or more of the following objectives: to denounce unlawful conduct, to deter offenders, to separate them from society where necessary, to assist in their rehabilitation, to provide reparation for harm done and to promote a sense of responsibility in the offender. A proper sentence must be proportionate to the gravity of the offence and the degree of culpability of the offender. The Court should impose a sentence which is similar to other sentences imposed on similar offenders in similar circumstances.

Further, an offender ought not be deprived of his or her liberty if less restrictive sanctions are appropriate. Accordingly, all reasonable alternatives to imprisonment should be considered for all offenders with particular attention to the circumstances of Aboriginal offenders. [ 14 ]

Section 433 of the Criminal Code states in part: Every person who intentionally or recklessly causes damage by fire...to property...is guilty of an indictable offence and liable to imprisonment for life where (

a) the person knows that or is reckless with respect to whether the property is inhabited or occupied. [ 15 ]

Section 742.1 of the Criminal Code permits the imposition of a Conditional Sentence Order for offences “other than a serious

personal injury offence as defined in s. 752....” [ 16 ]

Section 752 defines serious personal injury offence as “an indictable offence... involving... conduct endangering or likely to endanger the life or safety of another person...”. Thus, a conditional sentence of imprisonment is not available upon conviction under s. 433 . CONCLUSION [ 17 ] In this case, the principal objectives of sentencing must denounce the conduct, deter this offender and like-minded others and protect the public.

By providing a maximum sentence of life imprisonment and removing the option of a Conditional Sentence Order, Parliament has sent the message that these offences are to be treated very seriously. The sentencing precedents for this type of offence also bear this out as demonstrated by the significant custodial terms imposed. The range of sentence in those cases is one to five years. From the cases reviewed it appears that a significant factor to be considered is the degree of harm or jeopardy created. [ 18 ] The potential harm in this instance was great.

A fire was set in an occupied apartment building at a time of day when the occupants would likely be asleep and most vulnerable. I accept that Ms. Wiklun did not intend the extent of the harm caused and that her actions were born of impulse; nonetheless, it was not a coincidence that the target was the bedroom of her estranged spouse with whom she seemed to have an ongoing argument just prior to setting the fire.

It is troubling that although she had received psychiatric treatment for 10 months prior to the offence date, it did not serve to curtail the impulsive and dangerous behaviour which resulted in this charge. The resulting property damage was significant and likely minimized by the fact that tenants were awakened prior to the fire and were able to call emergency services within a very short time of it starting. The same can be said for the fact that there was no serious physical harm. Any mitigation of harm that was done can in no way be attributed to Ms. Wiklun.

Further, she is in no position to make amends through financial restitution. [ 19 ] In mitigation, Ms. Wiklun must be given credit for entering a guilty plea and saving the state the expense of a prosecution and the witnesses the added stress of having to testify. She has proven to be amenable to and compliant with a treatment regimen. Further, she has been supervised in the community for 22 months and has not re-offended or breached the conditions of her release. Her prior criminal record is minimal and dated. She spent some nine days on remand after her arrest. [ 20 ] The moral culpability of Ms.

Wiklun is high; after setting in motion a series of events that could have been catastrophic, she walked away. Significant damage resulted from her conduct. Society demands that this behaviour be denounced and that the resulting sentence serve as a deterrent to others. It has been suggested that a federal term of imprisonment would more appropriately address not only these principles, but also the continued rehabilitation of Ms. Wiklun as the federal system is better equipped to deal with people who have mental health issues.

However, there is no assurance that a penitentiary sentence would be served in a psychiatric facility or that the particular therapy in which she has been engaged would be available to her in any institution. The Court is advised that a referral can be made to the Regional Psychiatric Centre from both provincial and federal institutions.

She would receive prescribed medications in either system. [ 21 ] After considering the purposes and principles of sentencing, the circumstances of the offence, the personal circumstances of the accused and the sentences imposed in similar cases, it is my view that the purposes and principles of sentencing can be met through the imposition of a sentence to be served in a provincial institution. A custodial sentence of 18 to 24 months is warranted taking into account the very serious nature of the offence, the harm done and the disregard shown for all of the residents of the apartment building.

Significant credit must however be given to Ms. Wiklun for her guilty plea and the concerted efforts she has made in an attempt to prevent such a dangerous, impulsive act from occurring again. [ 22 ] Accordingly, there will be a sentence of 18 months incarceration. Further, all the reports filed in the sentencing proceedings are to be forwarded with the warrant of committal. [ 23 ] The offence for which Ms. Wiklun has been convicted is a secondary designated offence pursuant to s. 487.04 of the Criminal Code .

Given the very serious nature of this offence, and the previous property related record, albeit dated, Ms. Wiklun is ordered to provide a sample of her DNA for inclusion in the DNA Data Bank.

[ 24 ] Further, pursuant to s. 109 of the Criminal Code there shall be an order prohibiting Ms. Wiklun from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for a period of 10 years. [ 25 ] Surcharges are waived for financial hardship. _________________________ M.L. Gray, J