R. v. Warwick, 2021 BCPC 331

Citation: R. v. Warwick 2021 BCPC 331 Date: 20211222 File No: 41455-1 Registry: Courtenay IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BRIDGE SHANNON WARWICK REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE LAMPERSON Counsel for the Crown: J. Boccabella Counsel for the Defendant: A.W. McGarvey Place of Hearing: Courtenay , B.C. Dates of Hearing: May 27, June 7, 8, August 9, 10, Nov. 22 and Dec. 10, 2021 Date of Judgment: December 22, 2021 INTRODUCTION [ 1 ] On August 26, 2018 Bridge Shannon Warwick set fire to the Hornby Island Community School.

It was damaged beyond repair and had to be rebuilt at great expense and with much disruption and inconvenience. [ 2 ] Mr. Warwick, who is now 28 years old, has plead guilty to the charge that on or about the 26 th day of August 2018 at or near

Hornby Island, Province of British Columbia, he did intentionally or recklessly cause damage by fire or explosion to property, Hornby Island Community School, not owned in whole or in part by Bridge Shannon Warwick, contrary to

section 434 of the Criminal Code . [ 3 ] I must determine the appropriate sentence to impose. [ 4 ] The fit and proper sentence in this case depends significantly upon the degree of Mr. Warwick’s moral culpability or blameworthiness. [ 5 ] The question of moral culpability is central in this case because Mr. Warwick suffers from certain cognitive deficits and challenges. [ 6 ] The Crown submits that the appropriate range of sentence for this offence is 2 to 3 1/2 years. It says that if the Court is satisfied that Mr.

Warwick’s cognitive limitations are a mitigating factor, a jail sentence of two years less a day followed by probation for three years should be imposed. [ 7 ] The defence submits that a conditional sentence order followed by three years of probation is appropriate in this case. The Crown is opposed to the imposition of a conditional sentence order. The defence says that, if the Court decides that a conditional sentence order is not appropriate, then a jail sentence in the range of 9 to 12 months should be imposed. [ 8 ] Sentencing is a very individualized process because every case is unique on its facts.

While cases can and do have similarities, neither the circumstances of the offence nor of the offender are ever the same. [ 9 ] In determining the sentence to impose in this case I must consider the circumstances of the offence, the victim impact, the particular circumstances of Mr. Warwick, the purposes and principles of sentencing, the aggravating and mitigating factors and the applicable case law. CIRCUMSTANCES OF THE OFFENCE [ 10 ] Much of the information as to what occurred in this case comes from Mr. Warwick himself.

While what he said to different people was not always consistent, it is possible to ascertain the basic facts. [ 11 ] At the time Mr. Warwick committed the arson he had a supportive living arrangement and was residing in Courtenay in a home with a woman, A.F. He had a romantic interest in her which was not reciprocal. One evening during the week before the offence, Mr. Warwick believed that he heard A.F. engaging in sexual activity with a male friend of hers.

He reported that this made him very upset and jealous. [ 12 ] A few days before the offence, A.F. left on a trip and gave house minding duties to a friend of hers. The friend provided Mr. Warwick with a list of chores he was to do. This further angered Mr. Warwick. [ 13 ] On Thursday, August 23, 2018 Mr. Warwick left the house and spent time with a friend named Eric McCulloch. He smoked cannabis at Mr. McCulloch’s residence. He told him that he wanted to go to jail because he was so angry.

He believed that going to jail would be a pleasant experience and would provide him with a break from his life stresses. [ 14 ] The next morning Mr. Warwick withdrew about $200 from the bank and then bought a Bluetooth speaker, some food, a bottle of wine and some candy. He then took a bus and a ferry to Hornby Island. [ 15 ] He was very familiar with Hornby Island because, at an earlier time, he and his mother lived there for about 10 years. He reported that he planned to commit a crime on Hornby Island.

He thought about burning something, but not the school specifically. [ 16 ] While on his way to Hornby Island, Mr. Warwick was able to use his phone to communicate with a childhood friend named Shayla Orrick. However, the battery in his phone ran out of charge during his call. This further angered him. [ 17 ] Mr. Warwick walked around on Hornby Island on the Friday. It seems he met some acquaintances and smoked marijuana with them but was not welcome to stay with them. He described having slept at the ballpark on the Friday night. [ 18 ] Mr. Warwick reported that on the Saturday morning he was still angry.

He recalled the location of an old boat motor and walked there. He said he considered attaching the motor to a small boat but then decided against it because, in his mind, that would be stealing. [ 19 ] Instead, he poured the wine he had into a water bottle. He then poured some gasoline from the boat motor into his wine bottle. He said he had the idea of making a Molotov cocktail which he had learned about from a friend sometime earlier. At some point later on he walked to the Hornby Free Store where he obtained a pair of swim trunks.

Later, he ripped the swim trunks and used a piece of them for a wick for his Molotov cocktail. [ 20 ] On the Saturday Mr. Warwick continued to walk around Hornby Island. He said that he regularly checked in at the Access Centre in the hope of getting onto a computer and accessing Facebook. He felt that accessing Facebook would allow him to communicate with Ms. Orrick, with A.F., or with his mother and that may have helped him feel better. He says that at some point someone inside the Access Centre saw him but ignored him. This felt to him like another rejection and further angered him. [ 21 ] According to Mr.

Warwick, later on Saturday his interest in starting a fire was strong. He said that he considered burning the Access Centre, but felt there were too many trees close by and was afraid he would start a forest fire. He reported that he then looked at the school and felt that this was a more suitable target. It had no trees close by and he felt it would be very easy for the fire department to put out a fire at the school. He continued to believe that causing a fire would help him get arrested and achieve his goal of going to jail. [ 22 ] Mr. Warwick went to the Hornby School some time on the Saturday night.

He reported that he smoked two joints and sat there for a while. Then, at about 2:30 AM, he lit the Molotov cocktail and threw it against the exterior of the school’s gym wall. The bottle

shattered but the gas did not ignite. Mr. Warwick then approached the pool of gasoline with a lighter and lit it by hand. A large fire started and he ran away. He spent time in various places on Hornby Island before he returned to Courtenay on the ferry some hours later. [ 23 ] The Hornby Island Community School, which was primarily constructed of wood, was largely ruined and had to be completely replaced. [ 24 ] Mr. Warwick told his mother about the arson later on Sunday, August 26. Together and separately they told others, including the fire chief on Hornby Island. On August 28, Mr.

Warwick attended the Comox Valley RCMP detachment with his mother and a lawyer, Dennis Evans. [ 25 ] In the presence of his mother and Mr. Evans, he gave a lengthy warned recorded statement to a police officer in which he confessed to intentionally lighting the school on fire. IMPACT OF THE OFFENCE [ 26 ] In considering the impact of the arson, I will draw from the Crown’s written submissions. [ 27 ] The school to which Mr. Warwick set fire was comprised of a gymnasium, library, administration area and six classrooms. The fire burned all areas of the school except four of the classrooms.

The four classrooms which did not burn suffered smoke damage. A decision was made to replace the entire school. [ 28 ] The arson was committed approximately two weeks before the 2018/2019 school year began. As a result, students and staff were temporarily displaced into other buildings and outdoor education locations. Modular classrooms were brought in as a stop gap measure. [ 29 ] The financial impact of the arson totals almost $13,000,000. Initial expenses for such things as demolition and debris removal came to about $536,000.

Approximately $2 million was then spent on obtaining and installing portable modular structures to serve as a temporary school. The cost to replace the school was about $10,400,000. The original school had capacity for 145 students whereas the new school takes 95 students. Retaining the remaining structure of the original school and replacing it with seismic upgrading would have cost more than the cost to replace the original school. [ 30 ] The fire had a significant impact on the Hornby Island community at large. The school had been used extensively by members of the community outside of regular school hours.

Amongst other things, it served as a location for youth and adult sports, theatre productions and fairs. COURT AND BAIL HISTORY [ 31 ] The Information charging Mr. Warwick with arson was sworn on August 31, 2018. On September 4, 2018 he presented himself for arrest and was released by the Court on a bail order which required him to reside with his mother and to remain within 50 metres of her unless residing at Cedars residential treatment facility in Cobble Hill. He was not accepted into Cedars because of the close supervision his bail order required.

Therefore, he lived with his mother. [ 32 ] On September 24, 2018 Mr. Warwick’s bail order was amended to allow him to reside at the Inspire Change Wellness Addiction Treatment Centre in Surrey. He resided there for some time but did not find the group therapy beneficial and left. [ 33 ] On December 4, 2018 the Court ordered that Mr. Warwick’s fitness to stand trial be assessed on an in custody basis. Dr. Oswald, the psychiatrist who assessed Mr. Warwick, came to the opinion that he was fit to stand trial. [ 34 ] On December 13, 2018, after he was found to be fit, the Court ordered that Mr.

Warwick be assessed on an in custody basis as to whether he may not be criminally responsible for committing the arson by reason of a mental disorder. Dr. Oswald, assessed him again. He reached the opinion that the defence of not criminally responsible by reason of mental disorder (NCRMD) likely did not apply. [ 35 ] On January 17, 2019, Mr.

Warwick was released from custody on a Recognizance with a condition requiring him to reside with his mother and to always be within 50 metres of her or of one of a few other designated people. [ 36 ] Although his bail order was changed a few times, the subsequent orders all required him to reside with his mother and to always be in close proximity to her or to other designated persons. [ 37 ] Mr. Warwick resided continuously with his mother from January 2019 to August 2021. [ 38 ] He entered a guilty plea to the charge on January 23, 2020.

I heard sentencing submissions from Crown counsel and defence counsel over many days beginning May 27, 2021 and ending December 10, 2021. [ 39 ] On August 10, 2021, and with the consent of the Crown, I placed Mr. Warwick on a Release Order which permits him to live in the residence of a care provider in Victoria named George Brum. The order requires him to be under house arrest with certain exceptions. [ 40 ] Since Mr. Warwick was released from custody on January 17, 2019, he has done very well.

He has abstained from using marijuana and has not been found to violate any of his terms of bail or to commit any further offences of any kind. THE CIRCUMSTANCES OF BRIDGE WARWICK [ 41 ] The Court has had the benefit of being provided with a number of reports pertaining to Mr. Warwick. They include the following: • Various historical reports;

• A forensic report by Dr. Oswald dated December 12, 2018 regarding the question of fitness to stand trial; • A forensic report by Dr. Oswald dated January 16, 2019 regarding the question of NCRMD; • A private psychiatric report by Dr. Stanley Semrau dated July 18, 2019; • A forensic psychological report by Dr. Dugbartey dated March 13, 2020; • A pre-sentence report by Probation Officer, Tyler Hawley dated March 27, 2020; and, • A counselling report by Andrew Stringfellow dated May 14, 2021. [ 42 ] Together the numerous reports provide a good picture of Mr.

Warwick’s background, cognitive challenges and more current circumstances. I will set out information and opinions which I find to be of assistance. Background [ 43 ] Mr. Warwick’s background information is detailed in the pre-sentence report dated March 27, 2020. [ 44 ] Mr. Warwick was born in Everson, Washington State on March 15, 1993. His parents are Shannon Warwick and Robert Dawson. Mr. Dawson left the family when Mr. Warwick was an infant, leaving his mother to raise him. Mr. Warwick and his mother soon moved from Washington State to North Carolina and lived there until he was about 10 years old.

He and his mother then moved to Hornby Island where they lived for a number of years. When Mr. Warwick was 12 years old he and his mother spent time in Vancouver so that he could attend classes for children with special needs. They also spent time in Victoria to allow Mr. Warwick to attend Discovery School, an alternative education institution that supports and assist students with special learning needs. [ 45 ] Mr.

Warwick reported that his childhood was happy and that he suffered no neglect and no emotional, physical or sexual abuse. [ 46 ] When he was about 20 years old, he moved from Hornby Island to Courtenay and had different home share arrangements. Early on he was placed with a family which included two older sons. He lived with the family for over three years. According to Mr. Warwick’s mother, the two sons engaged in regular marijuana use and negatively influenced him. She says that regular use of marijuana by Mr. Warwick had an adverse impact on his functioning and behaviour. [ 47 ] Mr.

Warwick then moved into the home of the young woman, A.F., where he was living just prior to committing the arson. [ 48 ] With regards to finances, Mr. Warwick has been receiving Disability Income Assistance benefits since he was 19 years old. [ 49 ] He has no criminal record and no prior history of police involvement. [ 50 ] Mr. Warwick began smoking marijuana at age 16. His experimentation with marijuana soon turned to daily use. At about 20 years of age he began to binge on marijuana. His use of marijuana was only limited by his supply of it.

It led him to make poor decisions such as selling an antique motorcycle at far below its value to obtain funds to buy marijuana. He and others report that his excessive use of marijuana had adverse effects on his mental health. He reported that, when high, his mood would go dark and he would not be himself. [ 51 ] Mr. Warwick has never consumed much alcohol and has no experience with substances other than marijuana. He has not used marijuana or any other intoxicating substances since the arson. [ 52 ] The author of the pre-sentence report states that at the time of writing Mr.

Warwick had reported consistently as directed and had maintained full compliance with the conditions of his bail orders. [ 53 ] Since he was charged, Mr. Warwick has engaged in a remarkable amount of ongoing counselling and programming.

Amongst other things, this has included many months of addiction counselling through the Umbrella Society in Victoria, many months of counselling through Greater Victoria Family Counselling Services, mental health counselling with Alan Boden, counselling with Lynn Davidson, regular and ongoing counselling with Andrew Stringfellow and a large number of play therapy sessions with Kathryn Sandberg. Since July 2019, Mr. Warwick has had 23 hours a week of respite time in the community with a caregiver provided through Community Living B.C./BeConnected . [ 54 ] In addition to taking extensive counselling, Mr.

Warwick has done a lot of volunteer work. He has volunteered with the Mustard Seed, with Lifecycles Fruit Sort and with Domino’s Pizza. Presently, weather permitting, he volunteers for Domino’s Pizza by wearing a wobble/sandwich board for two hours a day, three days each week. Historical Cognitive Assessments [ 55 ] Mr. Warwick has a well-documented history of cognitive difficulties and challenges. Early on it was identified that he suffers from cognitive, social and language deficits. He had conventional schooling only until he was in grade 2.

That was followed by home schooling and then other specialized schooling which was better suited to accommodate his intellectual disabilities. As of now, he has the equivalent of about a grade two or three education. He has been unable to get beyond that. [ 56 ] When Mr. Warwick was growing up a number of psychological and educational assessments were undertaken. [ 57 ] I will refer to some of the assessments which were conducted when he was younger. [ 58 ] When he was five years and six months of age he was referred to a school psychologist for an evaluation of his cognitive ability and skill acquisition.

Testing determined that his level of functioning was in the borderline range and that he had a full scale IQ of 71.

The psychologist noted that exceptional weaknesses were found in the subtests which measure common sense knowledge of social situations and the ability to calculate mentally. He was found to have weaknesses in mental processing/making connections and following simple directions. [ 59 ] Another psychological evaluation was conducted by a psychologist in North Carolina when Mr. Warwick was 8 years, 11 months. In her report, the psychologist indicates that Mr. Warwick was classified as a student in the EMD (educationally mentally disabled) category.

She also states that he struggled with attention management and needed a lot of adult support to help him focus on the task at hand. [ 60 ] A further psycho - educational assessment was conducted in Vancouver when Mr. Warwick was 14 years of age. In the report prepared, the authors’ state: In

summary, due to both low WISC-IV cluster scores and low achievement scores Bridge continues to show ongoing thinking and reasoning impairments. [ 61 ] Mr. Warwick was assessed again by another psychologist when he was age 15 years, six months. The psychologist found that Mr. Warwick’s adaptive functioning fell within the moderately disabled range.

Under the heading Recommendations she states: Given the diagnosis of Mild Developmental Disability/Mild Mental Retardation (meeting the DSM-IV diagnostic criteria 317), Bridge should be eligible for the services of Community Living B.C. who deliver support and services to people with developmental disabilities. [ 62 ] Included in the materials provided is a letter dated December 18, 2008 written by Shelly O’Connor, PhD, registered psychologist, from Victoria, BC. Dr.

O’Connor writes: This letter is to confirm that Bridge meets accepted diagnostic criteria (DSM-IV) for a diagnosis of mild intellectual disability (MID). This diagnosis is based on two sets of test results; intelligence test results and adaptive functioning test results. [ 63 ] The results she considered include a Full Scale IQ score of 64 (1st percentile). [ 64 ] A letter addressed to Mr. Warwick dated December 6, 2010 advises him that the Ministry of Housing and Social Development has approved his designation as a Person with Disabilities (PWD). [ 65 ] Mr. Warwick is not capable of living independently.

This is recognized by the fact that, on February 9, 2012, soon before his 20th birthday, he signed a Representation Agreement providing his mother Shannon Warwick with authority to deal with, to make decisions, and/or to help him make decisions concerning his personal care, routine management of his financial affairs, his health care and the obtaining of legal services. Mental Health [ 66 ] In his NCRMD report, at paragraph 59, Dr. Oswald writes: Mr. Warwick has been diagnosed with intellectual disability disorder (mild), social anxiety disorder and cannabis use disorder (moderate to severe).

As such, he can be understood as suffering from a mental disorder. His diagnosis of intellectual disability disorder (mild) is lifelong, and in this way was active at the time of the offence. It appeared that Mr. Warwick was suffering from the negative impacts of recent cannabis use, though it is unclear whether he was actively intoxicated at the time of the offence. He reported having consumed a small quantity of wine prior to the offence. [ 67 ] Mr. Warwick was assessed in March, 2020 by Forensic Psychologist Dr. Dugbartey. On page 12 of his report, he writes as follows: Mr.

Warwick has an intellectual disability of mild severity. His language processing and comprehension skills are more severely compromised than his general intellect. He perseverates and he gets stuck in concrete thinking, with limited abstract reasoning skills. These deficits are of neurodevelopmental origin, with almost no prospect of improvement. What this means is that he is in need of external guidance and supervision in the community at large. He also meets DSM-5 diagnostic criteria for Cannabis Use Disorder, in early remission. [ 68 ] At the request of defence counsel, Dr.

Stanley Semrau carried out a psychiatric assessment of Mr. Warwick with respect to mental health issues related to the charge of arson. [ 69 ] In his report dated July 18, 2019, Dr. Semrau provides his opinion as to Mr. Warwick’s key mental health problems. They include the following: • Mild intellectual disability which results in him having difficulty dealing with concepts and very poor insight and judgment in many areas of functioning.

This renders him unable to be generally competitively employable. • Social anxiety and social skills deficits. • Impaired self- esteem, which creates a drive toward compensatory grandiose fantasies.

Given his impaired intellectual capacities and judgment, these fantasies can become extremely unrealistic, e.g. his notion that he would enjoy a good life by committing a crime and going to jail, or his belief that his future would include becoming successful and wealthy as a stunt actor. • Relatively poor emotional self regulation capacities, so that frustrations and disappointments can readily lead to anger. • Cannabis usage is an extremely serious problem for Mr. Warwick. By all accounts it has a markedly negative impact on his overall emotional state, relationships and behaviour generally.

It is clear that cannabis intoxication seriously impairs Mr. Warwick’s

judgment, self-control capacity and aggravates his tendency to impulsivity. Evidence as to State of Mind, Intention and Motivation [ 70 ] Some evidence as to what was in Mr. Warwick’s mind before and at the time of committing the arson is found in statements he made to others. [ 71 ] In his statement, Mr. Warwick’s friend Eric McCulloch says that when Mr. Warwick was over he told him that he wanted to start a fire and that he thought it would be “cool” to do so. [ 72 ] Mr. McCulloch says that later Mr.

Warwick told him that “he kind of wanted to burn down the school, a building or maybe the fire station.” [ 73 ] When taking a statement from Shayla Orrick, a police officer asked her whether she had ever known Mr. Warwick to talk about burning things down. She replied “definitely not” and said she does not think he is a violent person in any way. [ 74 ] In her statement, Ms. Orrick says that Mr. Warwick said to her “I wanna go to jail, will you promise me that you’ll call me so I can hear your voice while I’m there and can you promise to come visit me ‘cause I’ll be lonely.” Later in her statement, Ms.

Orrick says that Mr. Warwick said to her that in the winter some time when he knows there is police at the gas bar “maybe I’ll paint my water gun black and pretend to rob somebody so that I get put in jail on purpose.” [ 75 ] Mr. Warwick gave a lengthy warned statement to Sgt Tracey Veary. His statement lacks coherence, is rambling and disjointed and lasts for about two hours. I will quote portions of it. In his statement to Sgt Veary, Mr. Warwick says: At page 9, Mr.

Warwick says that “I was fantasizing of wanting to go to jail one time and I was sitting there when I was just looking at cause I saw a security camera and I, I was thinking like maybe like I don’t wanna go to jail now but I was at that moment I was just really bored with my life and didn’t wanna work or do anything.” At page 14, he says “… I did it with intent just to go to jail and I was, and I lit it thinking like I wanted to lit it to think how long it would take for the fire department to, to respond …” At page 25, he says “… I was sitting down at the school thinking I could use thinking of breaking into Access Centre but I didn’t and I was thinking I could just like and then I was just sitting there thinking oh yeah there’s a security camera oh wait I’m bored and there’s no food around and oh yeah I’ve wanted to go to jail and there’s food there and they feed you three times a day and they take care of you and you don’t have to work and I was thinking that would be an easy life and stuff … .” At page 9, Mr.

Warwick says that, at an earlier time a friend “showed me how to make a flame cocktail once and threw it in my dry pond bed but we didn’t watch it go off because it was didn’t break when it hit… At page 10, he says “I’m thinking it would be cool to make one and throw it somewhere and when I thr, I didn’t know where to throw it and so I felt I tipped the motor back and poured it in the bottle…” At page 22, he says “… I facebooked Carlin and Shayla saying I feel like wanna go to jail and I’ll do something when I feel ready to go to jail some time and I really was planning a long time but I didn’t know what to do and I thought I figured on Hornby Island I could think of something because I’m familiar with that place and its calming to me being there and I just thought this would do it and I just did it.” At page 45, he says: “… I was thinking of like getting in trouble in town to go like saving the cops to throw it somewhere in town but I said no way in hell I said I don’t wanna get in trouble here….

I say I’d do it on Hornby instead but I shouldn’t have done it at all.” At page 15, he says: “... my mom thinks I didn’t do it on purpose ... like she was thinking I did it by accident and it wasn’t but I was sleep deprived but still that is no excuse, like I did something and ...I was thinking of getting arrested because I was bored with my life ... I thought it would just go out or something but I intentionally was doing it to get arrested … my mom’s gonna be shocked to know that I did it on purpose … “ [ 76 ] At pages 10 and 11 of his statement, Mr.

Warwick says what was going through his mind at that time he committed the arson: … I just sat at the on the cement steps there at the school the whole time just till 2 am, I didn’t realize it was that late.

I thought it was 10 or 12 and or 11 and I just, I just, I don’t know what I was thinking at that moment I was just, I was just, I guess I was tryin to get attention or something but I was just like not th, not getting the right attention , I was, I don’t , I was sleep depr, I was freak, I don’t know what I was thinking but I just lit it, I, I sl, I ripped my, this bathing suit, I found at the depot and stuck it in and then I tipped it upside-down and then I lit it and I was like cause I didn’t wanna do it but my I was saying this would do the re, this, this grenade would start it and then I would have to fin, like I don’t know why I was doing it but I lit it and I threw the bottle and it, the rag fell out and it, just smashed, the bottle smashed on the ground and I had the, I dropped the lighter when I lit it so and then I was, s, I was fore sure, like I was thank God it went out maybe this is a sign I shouldn’t throw it or I should just walk and let this vapour air away, and I was like relieved it didn’t happen, cause I didn’t, like I don’t know what I was think, and then I just grabbed the , I found, I thought I lost the lighter saying oh well I’ll just walk on my way somewhere and then I , I saw the lighter and then I wanted to see what happened if I put the lighter to where I saw a bit of dampness and it went woof, woof and I was just like, Oh no, and then I , if I had my phone I would have called 911 and said I, I’ve lit the I lit the school on, I’ve , I lit the, there’s a fire at the school, I’m, I’m , I’m didn’t mean to I was like I, I, but I ran off like just went running through the trail… . [ 77 ] When speaking to forensic psychiatrist, Dr.

Oswald, about the events giving rise to the arson charge, Mr. Warwick denied having any symptoms at the time which were consistent with hallucinations or paranoia. However, he said he felt significant anger.

[ 78 ] He told Dr. Oswald that, several years before, he had been accused of burning down the house he shared with his mother on Hornby Island. He denied having been involved in causing that fire and found the suggestion by community members that he did so to be quite frustrating and insulting. He described being interested in burning down the school to “show them that he will really do a fire”. [ 79 ] In his report under the heading Formulation , Dr. Oswald states, in part, as follows: 56. Overlaid on his background of significant cognitive impairment, Mr. Warwick has engaged in regular use of cannabis.

This substance clearly has had a deleterious effect on his mental state. While intoxicated, Mr. Warwick is prone to poor decision making. There are also reports that it makes him more irritable. 57. Mr. Warwick has a history of impulsive behaviour and poor decision making. It is noted that, when upset in the past, he has destroyed property. 58. It appears that, in the context of significant cognitive deficits and regular substance use, Mr. Warwick suffered an incredible romantic disappointment when he heard his caregiver having sex with someone. Mr.

Warwick, who had strong romantic feelings for his caregiver, felt angry, jealous and rejected. In this very negative state of mind, Mr. Warwick developed a plan to do an arson and get arrested. In the two days leading up to the offence, Mr. Warwick suffered a number of disappointments that further fueled his anger and frustration. These included failure to communicate with a childhood friend on Hornby Island, and the inability to enter the access centre to communicate with family and friends. He continued to use cannabis during this time.

Ultimately, he acted on his impulse to light a fire and admits to having caused a fire that damaged the Hornby School. [ 80 ] In his report under the heading

Summary and Opinions , Dr. Dugbartey states, in part, as follows: 1. While expressing regret for his actions, the defendant was quite unable to articulate to me what he could have done differently to avoid committing the offence. 2. Mr. Warwick does not have a prior history of criminal convictions. He does have a history of poor frustration tolerance and poor impulse control. In my examination of the antecedents and review of the risk factors pertaining to the current offence, I have been unable to find indication that the defendant has a history of pathological fire setting. 3.

It is my formulation that this man’s actions in the offence were motivated by a misplaced anger that carried over from bitterness regarding his unrequited romantic interest in A.F. This frustration was heightened when he was unable to gain entry to the community access centre, culminating in his rather crude and unsophisticated grudge fueled criminal offending. I agree with Dr. Oswald’s cogent formulation and perspectives about the defendant, as expressed in his psychiatric report, January 15, 2019. [ 81 ] In his report, Dr. Semrau says that any statement of Mr.

Warwick’s mental state and motivations must inevitably be quite imprecise. Nevertheless he provides his opinion as to the key factors which resulted in Mr. Warwick committing the arson. They include the following: 1. Mr. Warwick was in the state of acute emotional stress due to various stressful events in his life. He was poorly equipped in terms of his own psychological resources to handle the emotional stress and was inclined to cope dysfunctionally by behaviourally acting out. 2. Substance misuse was also a very important aggravating factor, particularly cannabis, but perhaps to some extent alcohol as well.

The effects of the substance misuse likely seriously aggravated his long term difficulties with impaired self- regulation, insight and judgment. 3. His vulnerability to impaired self-esteem and related gravitation toward grandiose fantasies was aggravated by the above 2 factors, resulting in an objectively absurd notion that committing a crime and becoming incarcerated were steps toward leading a satisfying and enjoyable lifestyle in prison. 4. In the very disordered mental state described above, Mr.

Warwick saw his best alternative to his difficult and dissatisfying lifestyle to be the alternative of incarceration by means of committing a crime. 5. Mr. Warwick’s intellectual and judgment deficits likely led him to underestimate the risk of his actions causing major damage as opposed to more limited damage which could be contained by the authorities, but still achieve his objective of being incarcerated. [ 82 ] In his report, Dr. Semrau considered Dr. Oswald’s statement that “In this very negative state of mind, Mr. Warwick developed a plan to do an arson and get arrested.” Dr.

Semrau said he found it difficult to agree with the wording “developed a plan” and then stated “Certainly it is my opinion that Mr. Warwick intended to set a fire, and took some practical steps in order to do so, but in my opinion the degree of foresight and deliberation involved falls well short of any notion of developing a plan, which in my view entails a more single- minded, focused and organized chain of behaviours.” [ 83 ] In the course of being questioned, Mr. Warwick was asked how he was feeling before he lit the fire.

The exchange is at page 44 and is as follows: Sgt Veary: So when you got to the school how were you feeling? Mr. Warwick: Tired and hungry and wanting to just eat food and go to sleep somewhere and go home but then I was mixed with all that I was very angry and then just sitting thinking and then I just snorted some Tylenol and I said fuck it like my life is already I already messed up this far of it I’m gonna I should go further instead instead of not go further I was thinking. Sgt Veary: Hmm so you were hungry and tired and angry. Mr.

Warwick: And that made me throw the bottle. (page 44). [ 84 ] Crown counsel notes that at the time that Mr. Warwick lit the fire he still had some food left and that elsewhere in his statement

he indicated he was not too tired. [ 85 ] There is a question as to whether intoxication may have contributed to Mr. Warwick’s offending behaviour. The Crown submits that the evidence as to Mr. Warwick’s limited consumption of cannabis and alcohol while on Hornby Island suggests that it did not. The defence does not assert that Mr. Warwick was intoxicated at the time he set the fire but says that the evidence indicates that Mr. Warwick had been smoking a lot of marijuana during the period leading up to the offence and that the evidence is that heavy marijuana consumption had an adverse effect on Mr.

Warwick’s mental health. Evidence as to Understanding the Consequences [ 86 ] At page 29 in his statement to Sgt Veary, Mr. Warwick said he did not want to throw the device in the woods for fear of a forest fire. [ 87 ] Sgt Veary asked Mr. Warwick about his understanding of the consequences of lighting the fire which he did. [ 88 ] At pages 44 and 45 the following exchange took place: Sgt Veary: What did you think was gonna happen when you threw the bottle? Mr. Warwick: It would ignite the building it would totally catch fire and burn. Sgt Veary: You thought it was gonna catch fire and burn? Mr.

Warwick: Yeah like if I say no that’s stupid thinking cause that’s all wood like I was just looking at it like just all like light dry wood right when I threw it it went phoof and I was like that’s it I fucked up it’s done. [ 89 ] At page 16, Mr. Warwick says: ... Because I forgot about school starting up actually and I wasn’t aware of that and I forgot about all the kids that were born on Hornby that I knew couldn’t go there… all those people that wouldn’t be able to enjoy the gym like I did when I did floor hockey and I forgot I didn’t think about any of that.. I fucked up….

Evidence as to Taking Responsibility [ 90 ] It is clear on the evidence that Mr. Warwick almost immediately took responsibility for burning the school, that he had some insight into the consequences of his actions and that he was remorseful. [ 91 ] Mr. Warwick confessed to his mother, to the Hornby Island fire chief and to the police. He also advised his friends Eric McCulloch and Shayla Orrick that he set fire to the school. In addition he told the woman who was staying at the home where he had been living. Andrew Stringfellow’s Report [ 92 ] Mr.

Warwick has worked extensively with counsellor, Andrew Stringfellow. Mr. Stringfellow has considerable experience. After attending university in California, he moved to Courtenay and began working as a counsellor in 1976. He is now semi-retired and works part time. [ 93 ] Mr. Stringfellow provided a report dated May 14, 2021. He notes that he first met Mr. Warwick in 2013. It is clear that Mr. Warwick has made significant progress over time.

I will quote portions from his report: Bridge, in 2013, (at age 20) was severely socially handicapped due to his significant cognitive limitations (grade two level), and from lack of attending regular school and developing peer relationships. Most conversations with Bridge (as of 2013) would involve him talking incessantly, and completely fancifully stream of consciousness subjects, that seemed extremely random, and bordering on psychotic thinking. It was impossible to have a conversation with him, and it resulted in him being isolated and desperate for human interaction.

Now (in 2021) I can have some conversations lasting for an hour or more, where he’s focused and sensible, and oriented in the here and now. He will continue to require extensive support to maintain his momentum, both at home and in the community. Over the past two years that I have worked with him Bridge has developed a significant ability and willingness to learn whereby he improves both intellectually and emotionally. He is clearly very remorseful and willing to do whatever it takes to restore the community’s faith in him.

In the past 2 years both he and his mom have been very actively involved in numerous other therapies and trainings including for addictions in Victoria. They have kept me informed of this. Bridge has shown himself to be open to these therapies and a willing participant. His restricted cognitive abilities remain unchanged, even though his social skills have improved. This limits the therapy options and goals. [ 94 ] Mr. Stringfellow states that he has expressed a willingness to continue in the role of counsellor and mentor for Mr. Warwick. Letters of Support [ 95 ] Mr.

McGarvey provided the Court with a large number of letters from Hornby Island residents in support of Mr. Warwick. Many of the letters were written in response to a letter written and sent by Mr. Warwick’s mother, Shannon Warwick. I find that some of what

Ms. Warwick included in her letter has, in retrospect, turned out to be not completely accurate. Most importantly, that Mr. Warwick did not intentionally cause the school to catch fire and burn. As a result, I must disregard some of the views and opinions expressed in a number of the letters. [ 96 ] I will specifically refer to two letters, each from a long time Hornby Island resident who has known Mr. Warwick for many years. [ 97 ] A woman, who has been a Hornby Island resident for over 40 years, writes that she has known Mr.

Warwick for most of his life and has always found him to be “a friendly individual, living through the challenges of reduced intellectual capacity.” She goes on to write that she has discussed the situation with him and believes that “he very genuinely feels great remorse for his actions that resulted in the burning of the school.” [ 98 ] She writes further “I see evidence of Bridge’s maturation and personal understanding of his responsibilities and the consequences of his personal actions.” [ 99 ] A man, who has been resident on Hornby Island for over 20 years and who has known Mr.

Warwick for more than 15 years, writes “Bridge has faced considerable challenges in his life especially regarding his ability and capacity to do what many other kids take for granted.” [ 100 ] He writes further “Bridge has always been a positive thoughtful kid in my opinion. I have always viewed Bridge as someone who has tried his best to be a good person and to meet the challenges of becoming a young adult and to gain his independence.

He has never been ill-willed in my opinion.” [ 101 ] Collectively, the letters and parts of letters, which I have decided I can properly consider make it clear that, when he lived on Hornby Island, Bridge Warwick was well-liked by many members of the community, that many people would not be opposed to him returning to Hornby Island and that there is some desire to engage in a process of reconciliation/restorative justice. Criminal Responsibility [ 102 ] As stated above, on December 13, 2018, the Court ordered that Mr.

Warwick be assessed and that an opinion be provided as to whether at the time of the arson he suffered from a mental disorder that would exempt him from criminal responsibility by virtue of subsection 16(1) of the Criminal Code . [ 103 ] Forensic psychiatrist, Dr. Oswald conducted the assessment and provided his opinion in a written report dated January 15, 2019. [ 104 ] Dr. Oswald notes that while Mr. Warwick denied symptoms consistent with psychosis, he would often describe plans for the future which were wildly unrealistic. He notes that Mr.

Warwick described a long history of cannabis use and that it appears that he spends a great deal of time obtaining and using cannabis. He further notes that he had continued to use it despite its negative consequences. [ 105 ] Under the heading Criminal Responsibility Dr. Oswald states: When considering all available information, it appears that Mr. Warwick was aware of the nature and quality of his actions when he threw the wine bottle containing gasoline at the school and then lit the gasoline on fire. Mr.

Warwick has described intentionally constructing this “Molotov cocktail” which he intended to use for the purpose of causing a fire. He was aware that these were flammable liquids. He described on several occasions the intentional quality of his actions, and that he specifically meant to cause a fire. When the bottle broke but did not ignite, he intentionally lit the gasoline- soaked ground on fire with his lighter. It is clear that Mr.

Warwick was aware that fire and damage to the building were the possible physical consequences of his actions. [ 106 ] At paragraph 60 under the heading Opinion and Recommendations , Dr. Oswald writes: Despite his known cognitive impairments and his use of cannabis and alcohol, it appears most likely that Mr. Warwick was able to appreciate the nature and quality of his actions when he caused the Hornby School to light on fire. It also appears most likely that he knew the wrongfulness of his actions. Recommendations [ 107 ] In his report, Dr. Dugbartey makes some recommendations. They include: 1. Mr.

Warwick must be required to reside with a responsible adult who would undertake to monitor his comings and goings, as well as ensure that he does not have fire accelerants or such fire starting material as matches or lighters. 2. Mr. Warwick must be prohibited from consuming any alcohol, cannabis, or other psychoactive substances except as prescribed by a licenced medical practitioner in British Columbia. 3. Mr. Warwick should be required to notify his employers, and any facility where he goes to offer community volunteering services about his current fire-related offence. 4. Mr.

Warwick should continue counselling and play therapy. 5. Keeping Mr. Warwick occupied with prosocial activities and with little opportunity for unsupervised idle time. [ 108 ] Before making recommendations, Dr. Semrau provides his views as to the impact incarceration may have on Mr. Warwick. On page 24 he states , in part:

As noted above, Mr. Warwick is a very intellectually limited and highly suggestible person who has a strong psychological attraction to grandiose ideas as a means of compensating for his impaired self-esteem. Combining that with his social eagerness to please and poor judgment, he is highly vulnerable to being negatively influenced by others who might suggest unrealistic benefits and prospects of success from criminal or other deviant activities. Given the above vulnerabilities.

I am very concerned that prolonged exposure in custody to any sort of “hardened criminals” with antisocial values/attitudes could have a negative influence on Mr. Warwick. He is very unlikely to be able to be able to listen to tales of criminal success and apply his own common sense or moral filters to protect himself from the influence of such information. [ 109 ] On pages 25 and 26, Dr. Semrau makes recommendations as follows: 1. From a clinical treatment effectiveness viewpoint, any in- custody sentencing should be minimized and the length of community supervision should be maximized. 2. Mr.

Warwick should reside in the community in some type of very structured setting which provides firm limits on his behaviour and clear, simple and prompt consequences for any deviations. For this type of structure to be effective within Mr. Warwick’s emotional limitations, it must also be a caring and humane setting. 3. Mr. Warwick requires long-term counseling with a therapist who has specific skills in dealing with patients with serious intellectual, emotional and social skills limitations. Mr. Stringfellow’s continued involvement would be ideal. 4. Psychiatric medications have some potential for benefiting Mr.

Warwick’s emotional stability. Once in the community, Mr. Warwick should have an initial psychiatric consultation, likely to be provided by Forensic Psychiatric Services. Thereafter, prescriptions could be provided by a general practitioner, with periodic case review by a psychiatrist. 5. Mr. Warwick requires meaningful productive activity such as sheltered employment or volunteer work. It is unlikely that he will be capable of much further education or competitive open market employment, so he should not be encouraged to set his sights too high in those areas. 6.

There must be close integration between community corrections staff, home supervision staff, therapists, physicians and employment or volunteer work staff. 7. It would be best if Mr. Warwick were living in a setting which minimizes exposure to negative influences. 8. Mr. Warwick’s mother should be integrated with the rest of the treatment/supervision team as much as possible. However, I would not recommend that he live with his mother, except possibly on a temporary basis. 9. Mr. Warwick must be prohibited from utilizing any sort of intoxicants, both legal and illegal.

Risk [ 110 ] In his report, at paragraph 5 under the heading

Summary and Opinions , Dr. Dugbartey states: 1. I am not prepared to conclude that Mr. Warwick’s future risk of fire setting is low, unless he can be assisted to learn and utilize more appropriate ways of coping with frustration and perceived rejection. His limited intellect and even more compromised language comprehension would place a limit on traditional counselling approaches that rely primarily on verbal discourse. I think that play therapy approaches with his counsellor Catherine Sandberg is definitely worth continuing. [ 111 ] In his report, under the heading Risk Assessment Conclusions , Dr.

Semrau writes, in part: If Mr. Warwick has the benefit of the substantial majority of Treatment/Management Measures described above, and other measures listed below under Recommendations, then in my opinion his offending risk under those particular circumstances is low. This low risk would apply as long as these measures and recommendations are in place. However, under circumstances where such resources and measures are not substantially, or consistently applied, the offending risk would increase to the low- moderate range.

I do not foresee any realistic circumstances under which the risk would be higher than moderate. PURPOSES AND PRINCIPLES OF SENTENCING [ 112 ] The purpose and principles of sentencing are set out in sections 718 to 718.2 of the Criminal Code . The purpose of sentencing is set out in

section 718 . Three key objectives of sentences for the offence of arson are denunciation, deterrence, and rehabilitation of the offender. [ 113 ]

Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 114 ] Pursuant to

section 718.2 , a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances; a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and, all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. MITIGATING AND AGGRAVATING FACTORS Aggravating factors

• The extent of the damage and the financial consequences of the arson were very significant. • The burning of the school caused significant inconvenience and disruption to those who used the school including students, teachers and other members of the Hornby Island community. • Mr. Warwick constructed a sort of Molotov cocktail, using items from different locations, with the intention of using it to create a fire somewhere. • Mr. Warwick threw the Molotov cocktail at the school intending to cause a fire. When a fire did not result from throwing and breaking the Molotov cocktail, he did not walk away.

Rather he lit the gasoline on the ground with a lighter. Mitigating Factors • Mr. Warwick immediately admitted his wrongdoing and intentions to the authorities and to others. • He pled guilty thereby avoiding the need for a preliminary inquiry or trial. • He has expressed sincere remorse. • He has an intellectual disability which reduces his moral blameworthiness. • He has no prior criminal record or involvement with the police.

Other Factors • He has not breached any of his conditions of bail. • He has not committed any new offences. • He has considerable support in the Hornby Island community. • The school was vacant at the time of the arson and; therefore, it did not cause any personal injuries or loss of life. • The arson was intended by Mr. Warwick but not methodically planned in the sense that he engaged in a single-minded, focused and organized chain of behaviours. • The arson was not motivated by revenge or financial gain. • It is not clear on the evidence that Mr.

Warwick hoped or expected that the school would be completely destroyed. • It is not clear on the evidence that, at the time he lit the fire, Mr.

Warwick appreciated or anticipated the full extent of the possible financial consequences and/or effect on the community THE LAW AS TO COGNITIVE DISABILITY AND MORAL CULPABILITY [ 115 ] The law in Canada is clear that mental illness and/or cognitive deficits may be mitigating factors in sentencing if there is an established link between the offender’s condition and the offending conduct: Clayton Ruby on Sentencing, Tenth Edition at page 357. [ 116 ] Counsel provided the Court with a number of decisions considering this issue. I will refer to some of them. [ 117 ] In R. v.

Badhesa, 2019 BCCA 70 , the British Columbia Court of Appeal considered the weight to be given to mental illness and intoxication in the assessment of an offender’s moral culpability. Mr. Badhesa had beaten his mother to death and assaulted his wife while heavily intoxicated and suffering from severe psychotic depression. He appealed the sentences imposed following his guilty plea to manslaughter and assault. [ 118 ] The sentencing judge concluded that Mr. Badhesa’s mental illness was a mitigating factor but found that it did not significantly lessen his moral blameworthiness.

The Court of Appeal concluded that the sentencing judge erred in the assessment of moral culpability because he failed to consider the extent to which the appellant’s mental illness contributed to his excessive consumption of alcohol. [ 119 ] In Badhesa , the Court considered and relied upon earlier court decisions. [ 120 ] At paragraph [40] the Court states: Impaired reasoning, delusional disorders and other compromised mental conditions distinguish those afflicted from ordinary, fully accountable offenders for sentencing purposes: R. v. Ayorech , 2012 ABCA 82 at para. 12 .

Where an offender is found to be criminally responsible, but suffering from a serious mental illness or disability, a more lenient disposition than would otherwise be called for may well be appropriate to reflect a diminished level of criminal responsibility: R. v. Ramsay , 2012 ABCA 257 at para. 21 . [ 121 ] The Court writes as follows at paragraph [42]: When mental illness causes or contributes to the commission of an offence, it is a mitigating factor and the sentence may be reduced because the offender’s moral culpability is attenuated.

In these circumstances, general deterrence is a less weighty consideration because a mentally ill offender is not an appropriate medium for making an example to others: R. v. Belcourt , 2010 ABCA 319 at para. 8 . Nor does specific deterrence or severe punishment play a significant role in the determination of a fit sentence. The former is meaningless when an offender is out of touch with reality and the latter may be disproportionate to the offender’s degree of responsibility: R. v.

Batisse 2009 ONCA 114 at para. 38. [122] At paragraph [44] the Court states: When assessing a fit sentence, the judge should attribute a degree of moral culpability to the offender commensurate with the magnitudeof the mental illness and its overall role in the commission of the offence: Ramsay at para. 25. Where mental illness played a central role,the importance of deterrence and punishment should be given less weight and treatment and protection concerns should be increased:Batisse at para. 38.

This decreased emphasis on deterrence and punishment is consistent with the proportionality principle, which is thesine qua non of a just sanction; R. v. Safarzadeh- Markhali 2016 SCC 14 at para. 70. [123] In the end, the Court of Appeal allowed the sentence appeal. It reduced the sentence for the manslaughter from 10 years to sevenyears’ imprisonment and the sentence for the assault from 18 months to one years’ imprisonment. [124] In R. v.

Forner, 2020 BCCA 103, at para. [28], the Court states that its earlier decision in Badhesa recognized that mental illnessmay reduce moral culpability even where it indirectly contributed to the commission of the offence. [125] In R. v. Pentilla, 2020 BCCA 63, a fraud case involving a breach of trust, the Court of Appeal considered whether the sentencingjudge erred in failing to treat the offender’s acknowledged gambling addiction as a mitigating circumstance.

At paragraph 68, the Courtemphasized the importance of considering whether an offender has a medically recognized disorder and, if so, whether that disordercaused or contributed to the commission of the offence. It rejected the idea that a diagnosed gambling disorder could never amount to amitigating circumstance. [126] It is an error to conclude that an offender’s moral blameworthiness for committing an offence is automatically reduced because heor she had a mental illness or other cognitive limitation at the time of the offence. [127] In R. v.

Milne, 2021 BCCA 166, at paragraph 45, the Court of Appeal states as follows: Cases involving mental illness are inevitably and intensely fact-driven. While the presence of a mental illness at the time an offence iscommitted is part of the relevant context, it is not automatically a mitigating factor. Rather, in each case, the judge must make adetermination based on the whole of the evidence on whether, and, if so, to what extent, the mental illness contributed to the criminalconduct and if it diminished the offender’s moral culpability: Badhesa at paras. 35, 43-44; Pond at para. 38.

SENTENCING CASE LAW [128] Under s. 434 of the Criminal Code, Mr. Warwick is liable to a maximum punishment of fourteen years imprisonment. There is nomandatory minimum sentence. [129] Counsel provided the Court with a significant number of arson sentencing decisions. The cases relied upon by the Crown are asfollows: • R. v. Laforge, 2020 BCSC 1269 • R. v. Dennis, 2018 BCPC 270 • R. v. Powell, 2018 BCPC 295 • R. v. Leer, 2017 BCPC 235 • R. v. Li, 2020 BCSC 113 • R. v. Clifford, 2015, BCSC 875 • R. v. Nguyen, 2016 BCCA 381 • R. v. Parsons, 2020 CarswellNfld 269, and • R. v.

Roswell, (NL SC), 2002 CarswellNfld 71 [130] The defence provided the Court with the following cases: • R. v. MacKendrick [2007] BCPC 35 • R. v. Ligato [2009] ONCJ 405 • R. v. NC [2010] QCCQ 11448 • R. v. Morgan-McDougall [2011] ONCJ 119 • R. v. Levere [2011] ONCA 576 • R. v. Kwong [2013] BCPC 8 • R. v. Hart [2015] ONCA 480 • R. v. Nendick [2017] BCPC 253

• R. v. Bogue [2017] BCPC 58 • R. v. Sharun [2017] BCPC 367 • R. v. Bertrand Diamond [2019] QCCQ 1884 • R. v. Monias [2019] MBPC 35 • R. v. Nicholas [2020] ONSC 1701 , and • R. v.

Morin-Duchesne [2020] QCCQ 6605 [131] I have reviewed and considered all of the cases provided by Crown counsel and defence counsel. [132] It is clear from the case law that Canadian courts view the offence of arson as a very serious one and that denunciation anddeterrence are the primary objectives of sentencing in arson cases. [133] The sentences imposed for the offence of arson range from suspended sentences to federal custodial sentences.

Conditionalsentence orders have sometimes been imposed when available. [134] As is almost always the case, while the sentencing decisions provided are helpful, none are directly comparable to the case beforeme. [135] In Mr. Warwick’s case, I find the following statement at paragraph 92 of the Supreme Court of Canada’s decision in R. v.

M.(C.A.), (SCC), [1996] 1 S.C.R. 500 to be particularly apt: [92] Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and asimilar crime will frequently be a fruitless exercise of academic abstraction. [136] I will now refer to a number of the cases provided by Crown counsel. In doing so I will note some of the principles and factorsconsidered. [137] In the recent case of R. v. Laforge the offender drove his vehicle into a 7- Eleven convenience store in Salmon Arm. He took ajerry can out of the backseat and poured it on his car.

He announced that he would be lighting the place on fire and waited for theemployees and customers to leave the store. He then lit a fire which spread quickly causing extensive damage to the store and to thevehicles of two employees and to the scooter of a patron. [138] Mr. Laforge was of Metis heritage and had been diagnosed with a schizophrenic illness. He said he didn’t want to hurt anyone andknew he might go to jail as a result of his actions but he felt it was important to draw attention to his struggles.

He hoped that the Courtmight assist him in obtaining information to substantiate his delusional beliefs. [139] The forensic psychiatrist who assessed him considered him to a moderate to high risk to reoffend. [140] In his decision, at paragraphs 47 and 48, Mr. Justice Marchand reviews some of the important principles which emerge fromarson cases as follows: Arson is a serious offence.

The maximum punishment of 14 years imprisonment reflects that fire is erratic, unpredictable and may giverise to unforeseen consequences such as extensive property damage, serious personal injury and/or death: Sharun at para. 38 citing R. v.K.H., (1994) (NB CA), 146 N.B.R. (2d) 372 (C.A.). Protection of the public, denunciation and deterrence, bothgeneral and specific, are the primary sentencing objectives: Leer at para. 124; Sharun at para. 37.

For sentencing purposes, arsonists can generally be divided into four types: pyromaniacs or persons suffering from mental illness; peoplewho burn for no special reason; vandals; and people who burn for revenge or financial gain. Of these, persons who are suffering frommental illness are often considered to have the lowest level of moral blameworthiness while those who commit arson for revenge orfinancial 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. [141] As of the date of Mr. Laforge’s sentencing hearing he had been in custody for 548 days. The Crown and defence jointly submittedthat he be sentenced to a time served sentence of 27 months plus three years of probation. Justice Marchand did not accept the jointsubmission and imposed a sentence of 18 months jail followed by three years’ probation. He said that it was regrettable that Mr. Laforgehad served significant dead time in custody that he would never recover.

I note that a conditional sentence order was not an availablesentencing option at that time. [142] In R. v. Dennis, the offender, who was intoxicated, trashed a hotel room in the Sandman Hotel in Kamloops and set fire to hisgrandmother’s suitcase. In doing so he put the other occupants of the hotel at risk. Fortunately, the hotel’s sprinkler system functioned toextinguish the fire and no one was injured or killed. [143] Mr. Dennis had a record for violent offences and breaches. He had finished parole 71 days before and was found to be at risk forfuture violent acts.

He received a jail sentence of two years less the 681 days he had already served. [144] In R. v. Powell, the offender started a fire in his apartment in a rooming house in Vancouver that had approximately 50 residents.Fortunately, no one was hurt. However, it caused a lot of property damage and fear to other residents. Mr. Powell had a long history ofmental illness and drug abuse. On the day in question, he was apparently either intent on committing suicide or intent on bring attentionto himself.

[ 145 ] Judge Meyers found that Mr. Powell’s moral blameworthiness was not eliminated due to the mental health issues but that it certainly did reduce his moral culpability. [ 146 ] The Crown sought a sentence of at least 18 months jail. The defence sought a suspended sentence. Judge Meyers imposed a 15 month jail sentence. I note that at that time a conditional sentence order was not available. [ 147 ] In R. v. Leer , the offender lit a candle and started a fire in a townhouse in which she and her mother lived. The fire started shortly after 8 pm.

After 911 was called the police arrived and began evacuating the residents from the three attached units. Fortunately, there was no loss of life or injuries. However, some family pets perished. [ 148 ] Ms. Leer lit the fire because she wanted to move and was angry with her mother. She was 18 and had no prior record. She was mentally ill and had been diagnosed with borderline personality disorder and alcohol use disorder. [ 149 ] The fire caused 1.1 million dollars damage to the building alone. Other residents filed victim impact statements.

They all described the fear and anxiety the fire caused and continued to cause them. All lost their personal belongings and had to relocate. Some had no insurance. One family who had no insurance estimated their loss in the six figures and lost their beloved cat. [ 150 ] Judge Koturbash noted certain aggravating factors. They are as follows: 1. The type of structure damaged (a multi- family dwelling). 2. The time of day. The fire started shortly after 8 pm when one could expect people to be indoors and even potentially asleep. 3. The extent of the damage. 4. The arson was motivated by anger and revenge. 5.

The risk posed to the residents of the building. 6. The psychological and financial impact to the victims. 7. The risk posed to firefighters. A floor collapsed. 8. Loss of family pets. [ 151 ] Ms. Leer had spent 306 days in pre-sentence custody. The Crown sought a sentence of four to five years imprisonment. The defence argued for a three year sentence. Judge Koturbash imposed a sentence of 1189 days imprisonment followed by three years’ probation. [ 152 ] In R. v. Wei Li , the offender was convicted by a jury after trial. He intentionally set fire to the garage of a duplex he owned in Esquimalt.

He did so to intimidate his tenant and/or to force him off the property. The garage and the duplex were damaged and the tenant’s personal property within the garage was destroyed. The offender was a 49 year old electronic engineer with no criminal record. Mr. Justice Baird imposed a sentence of two years in a federal penitentiary. [ 153 ] In R. v. Clifford , the offender was found to have destroyed trees and intentionally set fire to a garage containing a car, family momentos and other possessions which were located on an acreage owned by the Deardens. The Deardens are the parents of Mr.

Clifford’s former partner and mother of their child. The arson occurred at about 12:30 am when Mr. Dearden was asleep in the residence. It is clear that the arson was motivated by anger and revenge. Mr. Justice MacIntosh described what Mr. Clifford planned and did to the family as “vengeful, malicious, insidious, frightening and menacing” He was 49 and a veterinarian. He had no criminal record. [ 154 ] Justice MacIntosh stated that Mr. Clifford’s vengeance must be denounced and deterred and imposed a three year jail sentence upon him. [ 155 ] In R. v. Nguyen , the accused was convicted after trial. Ms.

Nguyen intentionally set fire to a salon operated by a company of which she was the principal. She planned her actions in advance. The only evidence going to motive suggested that of financial gain. She set the fire in spite of the significant risk it posed to neighbouring businesses and innocent people. She had no criminal record. [ 156 ] The trial judge imposed a sentence of 21 months’ imprisonment and one year of probation. Ms. Nguyen appealed her conviction and sentence. The Court of Appeal dismissed her conviction appeal and found that the trial judge did not err in refusing to impose a conditional sentence.

The trial judge had found that a conditional sentence would not be consistent with the predominant consideration of general deterrence. [ 157 ] I have considered the cases provided by defence counsel. They are cases in which suspended sentences and conditional sentences were imposed. I will refer those decisions which I find to be most applicable. [ 158 ] In MacKendrick , the offender stole 11 puppies from a breeder. He sold most of them. Eventually 10 of the 11 puppies were returned to the original owner.

In a separate incident, he, in the company of others, set fire to a shed which was adjacent to a 100-year-old heritage barn occupied by the Langley Community Services Society. Very quickly the fire spread from the shed to the barn and quite rapidly the barn was totally destroyed by the fire. The loss of the heritage barn used by the Society was devastating to the delivery of community services in Langley. These services included services to families and children, including counselling and supervised access visits.

In addition the Society offered drug and alcohol abuse counselling, assistance for immigrants and refugees as well as services for those suffering with poverty and mental illness. The cost to reconstruct the barn would exceed one million dollars. [ 159 ] At the time of sentencing Mr. MacKendrick was 21 years of age. He was assessed by a psychiatrist with having schizoaffective disorder and needed ongoing psychiatric treatment. He had limited insight into his behaviour and did not express remorse for his actions.

[ 160 ] Because of the considerable loss to the Langley community caused by the arson, a sentencing circle was held to allow a conversation between Mr. MacKendrick and his victims in the community. He told the circle that he used material he got from home to make what he described as a Molotov cocktail to start the fire. He said he could not recall who actually lit the fire. He was unable to express any particular reason why the fire was lit but assured those present that he did not intend to direct anger or hatred towards anyone. [ 161 ] Mr.

Justice Ball noted that, as the law currently stood in British Columbia, the range of sentence for arson is between nine months and three years, and that such sentences are normally followed by a period of probation. [ 162 ] Justice Ball imposed an 18 month conditional sentence order for the arson and a concurrent six month conditional sentence order for the theft of the puppies. The conditional sentence order which applied to the arson included a term of house arrest for the first eight months, a Rogers order and a requirement that Mr. MacKendrick perform 40 hours of community work service.

The 18 month conditional sentence order was followed by three years of probation. [ 163 ] In Ligato , the offender broke the front window of a hair salon and tossed in a Molotov cocktail. A fire started which caused approximately $150,000 in damage. During the offence he was wearing a balaclava and rubber gloves. He was 28 years old, married and had a young child. He had no criminal record. He stated that the arson was not his idea and that he was paid $1000 for his role. [ 164 ] On sentencing he received an 18 month conditional sentence order followed by two years of probation.

The judge would have imposed a 22 month conditional sentence order had Mr. Ligato not served four days of pre-trial detention and been on bail with a restrictive curfew for 21 months. [ 165 ] In N.C ., the offender set fire to a building which included 12 housing units occupied by about 20 tenants. Tenants had to be evacuated and lost their property. Most were uninsured. There were elements of premeditation. The offender was very intoxicated when firefighters arrived. She had been struggling with depression and suicidal thoughts.

The Québec court imposed a suspended sentence accompanied by three years of probation. [ 166 ] In Hart , the offender set fire to a carport which ended up setting fire to the attached home where five people resided. No one was injured. Fortunately the consequences were not more serious. Mr. Hart was 20 years old at the time of the offence and had both a youth record and a history of mental health issues. The sentencing judge imposed a suspended sentence with three years’ probation.

The Crown appealed and submitted that the trial judge overemphasized the issue of mental illness and prospects for rehabilitation in deciding on a noncustodial sentence. The Court of Appeal dismissed the appeal and found that the record supported the judge's conclusion that: “To now impose a custodial sentence would likely destroy any progress that has been made by Mr. Hart with respect to his mental health and in my view would serve no genuine societal interest.” [ 167 ] In Bogue , Mr. Bogue, while in a drug induced psychosis, set four separate fires to a house that he was renting in Sechelt.

The fire was significant. It caused $315,000 damage and destroyed Mr. Bogue’s car which blew up during the fire. The fire put the neighbours at risk. Fortunately no one was injured. [ 168 ] Judge Merrick, at paragraph [24], refers to the MacKendrick case for the proposition that the range of sentence for arson is between nine months and three years, and where permitted, followed by a lengthy period of probation. [ 169 ] At paragraph [27], Judge Merrick states that he is satisfied that Mr.

Bogues’s mental health problems played a central role in the commission of the offence and that deterrence and punishment assume less importance in cases of mentally ill offenders. [ 170 ] The Crown sought an 18 month jail sentence followed by three years’ probation. The judge concludes, at paragraph [37] that, while such a sentence could be appropriate, due to Mr.

Bogue’s mental illness, the primary sentencing consideration should shift from deterrence to treatment as the best means of protecting the public and ensuring the offence is not repeated. [ 171 ] He decided, despite the seriousness of the offence and the aggravating factors, to impose a suspended sentence with three years’ probation. I note that a conditional sentence order was not an option at that time. [ 172 ] In Sharun , Mr. Sharun started several fires in his suite within a 16 unit building in an attempt to commit suicide.

Although there was extensive damage to the suite and some damage to other portions of the building no one other than Mr. Sharun was injured due to the quick response of fire fighters. [ 173 ] The Crown sought a jail sentence in the range of 18 months to 36 months, followed by three years’ probation if a jail sentence at the lower end of the range was imposed. The defence suggested a suspended sentence. [ 174 ] Mr. Sharun had no criminal record. At the time of the offence Mr. Sharun was working both as a chef and an accountant with little time for himself.

He described himself as struggling with a high level of stress and depression leading to what he called a “psychotic break”. [ 175 ] At paragraph [56] Judge Brecknell states: Although the arson was well thought out from the point of view of setting the stage for smoke induced death for Mr. Sharun, it was the result of planning and implementation carried out by a diagnosed mentally ill individual who neither considered, nor wished, any potential harm to others. Given the psychotic break arising from his mental illness Mr.

Sharun’s actions attract a lower level of moral and legal culpability. [ 176 ] At paragraph [57] he states: Mr. Sharun had no criminal record, he has taken significant and objectively identifiable steps to maintain his mental health, he has gainful employment with a supportive employer, he has shown remorse for his actions both immediately after the incident and in his

statements to the Court, he has acknowledged the potential harm to others that could have resulted from his actions, he is described by the psychological expert as being a low risk to reoffend and he has been a contributing member of society including being a regular community volunteer. [ 177 ] Judge Brecknell imposed a suspended sentence with three years’ probation order.

At paragraph [64] he states that “although it may be open to consider a prison sentence less than the normal sentencing range after a finding of exceptional circumstances it is not a necessary, just or appropriate sentence in this case”. [ 178 ] Historically, a conditional sentence order was available for those who committed the offence committed by Mr. Warwick. In 2012, amendments to the Criminal Code precluded the imposing of a conditional sentence order in cases where the maximum sentence for an offence is 14 years. [ 179 ] In April 2021, in the case of R. v. Chen, 2021 BCSC 697 , Mr.

Justice Schultes found this provision of the Criminal Code to be unconstitutional. [ 180 ] Since the Chen decision was rendered, the Crown in British Columbia has been taking the position that conditional sentence orders are again available as a sentencing option in cases, such as this one, where the maximum sentence is a period of imprisonment of 14 years. [ 181 ] In accordance with

section 742.1 of the Criminal Code , a court that imposes a sentence of imprisonment of less than two years may order the offender to serve the sentence in the community in accordance with a conditional sentence order if satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 . [ 182 ] As I stated earlier, defence counsel submits that, in this case, the Court should impose a conditional sentence order of two years less a day followed by a three year period of probation. [ 183 ] Crown counsel acknowledges that a conditional sentence order is available in the present case but, as I have said, submits that it would not be appropriate. [ 184 ] The leading decision with respect to conditional sentences is that of the Supreme Court of Canada in R. v.

Proulx , 2000 SCC 5 . [ 185 ] At paragraph 127, Mr. Justice Lamer, writing for a unanimous Court, summarizes the important aspects of his reasons in 13 points. I have considered all of the points and will quote points 1,3,8 and 12: 1. Bill C-41 in general and the conditional sentence in particular were enacted both to reduce reliance on incarceration as a sanction and to increase the use of principles of restorative justice in sentencing. 3.

No offences are excluded from the conditional sentencing regime except those with a minimum term of imprisonment, nor should there be presumptions in favour of or against a conditional sentence for specific offences. 8. A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be.

There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future. 12. No party is under a burden of proof to establish that a conditional sentence is either appropriate or inappropriate in the circumstances. The judge should consider all relevant evidence, no matter by whom it is adduced. However, it would be in the offender’s best interests to establish elements militating in favour of a conditional sentence.

ANALYSIS Having considered the evidence, including the psychiatric/ psychological reports and the statements which Mr. Warwick made to the police and others and the applicable case law, I must assess Mr. Warwick’s degree of moral culpability for committing the arson . In doing so, I will consider the following questions: 1. At the time he committed the offen

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