R. v. Sharun Date:, 2017 BCPC 367

Citation: R. v. Sharun Date: 20171122 2017 BCPC 367 File No: 44326-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. STEFAN ALEXANDER SHARUN REASONS FOR SENTENCE OF HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M. J. BRECKNELL Counsel for the Crown: E. Yao Counsel for the Defendant: D. Jenkins Place of Hearing: Prince George , B.C. Dates of Hearing: June 27; September 6, 2017 Date of Judgment: November 22, 2017 INTRODUCTION [ 1 ] The Defendant, Stefan Alexander Sharun, has pleaded guilty to Count 1 on Information 44326 which alleges that on or about

February 21, 2016, at or near Prince George in the Province of British Columbia, he did intentionally or recklessly cause damage by fire or explosion to property, 1840 Spruce Street, knowing or being reckless to the fact that the property was inhabited or occupied, contrary to

section 433 (

a) of the Criminal Code . [ 2 ] In the late evening hours of February 21, 2016, Mr. Sharun started several fires in his suite of a 16 unit building in an attempt to commit suicide. Although there was extensive damage to his suite and some damage to other portions of the building, no one other than Mr. Sharun was injured due to the quick response of the City of Prince George Fire Rescue Services. [ 3 ] Prior to this incident, Mr.

Sharun had no involvement with the criminal justice system and had never had any interactions with the Royal Canadian Mounted Police (RCMP). [ 4 ] Relying on the case law presented during the sentencing hearing the Crown submits that an appropriate sentence for Mr. Sharun would be incarceration in the range of 18 months to 36 months with ancillary orders to provide a DNA sample and a standalone restitution order. If the Court was to sentence Mr. Sharun at the lower end of the range the Crown also seeks three years of probation. [ 5 ] Defence counsel submits that Mr.

Sharun should receive a suspended sentence and three years’ probation on the basis that there are “exceptional circumstances” as described in recent case law which would permit the Court to impose a sentence lower than the general range. [ 6 ] The Crown submits, in the alternative, that even if “exceptional circumstances” are found by the Court, the sentence should be up to 90 days incarceration to be served intermittently along with three years’ of probation. CIRCUMSTANCES OF THE OFFENCE [ 7 ] At the time of the offence Mr.

Sharun was the sole occupant of unit 104-1840 Spruce Street, an apartment complex composed of 16 units and home to approximately 25 people. [ 8 ] In the late evening hours of February 22, 2016, Prince George Fire Rescue Services (FRS) attended a structure fire at 1840 Spruce Street, and in particular, unit 104. [ 9 ] The fire emanated from unit 104 and when Fire Rescue personnel entered that unit they found Mr. Sharun unconscious under a table in the living room.

They removed him and turned him over to Emergency Health Services (EHS) paramedics who transported him to the University Hospital of Northern British Columbia (UHNBC) for treatment. [ 10 ] While at UHNBC, Mr. Sharun received oxygen treatment for smoke inhalation. While receiving treatment, Mr. Sharun advised an attending RCMP member that he started the fire in his unit in an effort to kill himself. Based on that admission a decision was made to admit him to the psychiatric ward of UHNBC for an involuntary psychiatric evaluation. There was no medical indication that Mr.

Sharun was under the influence of drugs or alcohol at the time he started the fire. [ 11 ] None of the other residents of 1840 Spruce Street nor any FRS personnel or other first responders were injured as a result of the arson. [ 12 ] Investigation of the arson by FRS personnel and RCMP members revealed several locations in unit 104 where there were “fire sets”; some of which had been ignited and some of which had failed to ignite. In addition, the doors and windows of unit 104 were sealed with duct tape from the inside.

Combustible items such as books were found on the stove elements with the stove knobs in the “on” position and in other locations around the unit. A small torch lighter was also located. [ 13 ] The damage arising from the arson was largely contained unit 104. The cost of repairing the damage and other ancillary expenses incurred by the building owner amounted to $37,191.07. MR. SHARUN’S CIRCUMSTANCES [ 14 ] Mr. Sharun’s personal circumstances are taken largely from the Agreed Statement of Facts, the Presentence Report, and the Psychological Report. [ 15 ] Although originally from Calgary, Mr.

Sharun has resided primarily in the Prince George area since 1999. He has no criminal record or any other criminal matters before the courts. As far as he is aware, none of his family or friends are involved with criminal activities. [ 16 ] He is the younger of two siblings and was raised in a loving and supportive family. He has few friends but he is close to the friends he has. [ 17 ] Mr. Sharun graduated from high school and subsequently took training to become a Red Seal chef. He worked as a chef for approximately seven years.

He has trained for, and received, a diploma in accounting and works in a local accounting office. He excelled at all of his academic endeavours obtaining very high grades in high school, during his chef’s training, and when pursuing his accounting diploma. [ 18 ] At the time of the offence, Mr. Sharun was working both as a chef and as an accountant with very little time to himself. He has subsequently left the restaurant industry and works full-time as an accountant.

He also volunteers with one of the local social service agencies as a cook on a monthly basis. [ 19 ] He is a social drinker and cannabis user, but does not suffer from any form of substance abuse. THE PRESENTENCE REPORT

[ 20 ] The topics discussed in the Presentence Report that have particular relevance to this decision include the following: a. Mr. Sharun’s employer describes him as a “bright, adaptable worker”. The employer plans to expand their business as a result of Mr. Sharun’s impressive employment record; b. at the time of the offence, Mr.

Sharun described struggling with high levels of stress and depression leading to what he described as a “psychotic break” arising from several stressors including losing his keys, having his car broken into, and higher than normal work stress; c. there is a family history of depression but no one in his family was aware of his deteriorating mental health before the offence occurred; d. Mr. Sharun resolved to kill himself by asphyxiation and determined that doing so by smoke inhalation was the easiest course of action; e. after the offence, Mr.

Sharun was referred for counselling through the Northern Health Authority's Community Acute Stabilization Team (CAST). He attended all of his appointments on time and as scheduled and was discharged by CAST on April 21, 2017, when his counsellor determined he required no further assistance; f. although he acknowledged the large amount of damage caused by the arson, Mr. Sharun minimized the situation in his suite describing it as “rundown and damaged” before he moved in; g. Mr.

Sharun accepted full responsibility for his actions, was aware of how the offence impacted the owner and the other residents of the apartment building, and expressed remorse for having put them at risk. Immediately upon his admission to hospital he asked about the safety of the other tenants. [ 21 ] The Presentence Report author recommended, in the event a period of community supervision was imposed, that Mr. Sharun be directed to counselling, be prohibited from possessing any incendiary devices and be made subject to a “Rogers” order.

THE PSYCHOLOGICAL REPORT [ 22 ] The topics discussed in the Psychological Report that have particular relevance to this decision include the following: a. despite using arson to attempt suicide, Mr. Sharun has no other history of suicidal ideation or self-harm. He was assessed using the SAD PERSONAS evaluation and was found to be a low risk for suicide at the time of the assessment; b. during his dealings with the psychologist, Mr. Sharun did not demonstrate any perceptual disturbances or overt psychiatric symptomology; c. during a time of mounting stress and likely some degree of psychotic decompensation, Mr.

Sharun made the decision to commit suicide by smoke inhalation. At that time he seemed to be task oriented and did not show any consequential thinking. He only became conscious of the likelihood that he could’ve hurt the other residents once he was admitted to hospital; d. intellectual screening utilizing the Shipley Institute of Living Scale (SILS) indicated an overall estimate of intellectual ability for Mr. Sharun at above average; e. personality testing utilizing the Personality Assessment Inventory (PAI) indicated that Mr.

Sharun’s clinical profile revealed no elevations that would suggest the presence of a clinical psychopathology. [ 23 ] In the clinical interview portion of the Report the psychologist says this about Mr. Sharun: Overall, Mr. Sharun has no history of aggression, criminality, or any other reason to raise concern. He has maintained a prosocial and unremarkable life with continual employment. Given that he has no history of fire setting and was able to provide a reasonable and believable account as to the reason for his extraordinary actions on the day of the incident, it is believed that this is a singular incident.

Mr. Sharun does not demonstrate any level of risk to the community that would be considered unmanageable. [ 24 ] The Report recommends that Mr. Sharun continue with counselling as directed by a community supervisor. MR. SHARUN’S PERFORMANCE ON BAIL [ 25 ] Mr. Sharun was released on a Recognizance soon after the offence. His bail required him to reside with his parents and to maintain his mental health under the terms of a “Rogers” order. Mr. Sharun has maintained full compliance with his bail conditions and his reporting requirements to the bail supervisor.

THE LAW The Criminal Code [ 26 ] The purpose and principles of sentencing are set out in sections 718 through 718.2 of the Criminal Code which read, in part:

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

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

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

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

d) to assist in rehabilitating offenders; (

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

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender,

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) 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. [ 27 ] The factors surrounding the making of probation or other ancillary orders are set out in sections 731 , 732 , 732.2 and 733.1 of the Criminal Code which read: 731

(1) Where a person is convicted of an offence, a court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission, (

a) if no minimum punishment is prescribed by law, suspend the passing of sentence and direct that the offender be released on the conditions prescribed in a probation order; or (

b) in addition to fining or sentencing the offender to imprisonment for a term not exceeding two years, direct that the offender comply with the conditions prescribed in a probation order. 732

(1) Where the court imposes a sentence of imprisonment of ninety days or less on an offender convicted of an offence, whether in default of payment of a fine or otherwise, the court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission, and the availability of appropriate accommodation to ensure compliance with the sentence, order (

a) that the sentence be served intermittently at such times as are specified in the order; and (

b) that the offender comply with the conditions prescribed in a probation order when not in confinement during the period that the sentence is being served and, if the court so orders, on release from prison after completing the intermittent sentence.

(2) An offender who is ordered to serve a sentence of imprisonment intermittently may, on giving notice to the prosecutor, apply to the court that imposed the sentence to allow it to be served on consecutive days. 732.2

(1) A probation order comes into force (

a) on the date on which the order is made; (

b) where the offender is sentenced to imprisonment under paragraph 731(1)(

b) or was previously sentenced to imprisonment for another offence, as soon as the offender is released from prison or, if released from prison on conditional release, at the expiration of the sentence of imprisonment; or…

(2) Subject to subsection (5),

(

a) where an offender who is bound by a probation order is convicted of an offence, including an offence under

section 733.1, or is imprisoned under paragraph 731(1)(

b) in default of payment of a fine, the order continues in force except in so far as the sentence renders it impossible for the offender for the time being to comply with the order; and (

b) no probation order shall continue in force for more than three years after the date on which the order came into force.

(3) A court that makes a probation order may at any time, on application by the offender, the probation officer or the prosecutor, require the offender to appear before it and, after hearing the offender and one or both of the probation officer and the prosecutor, (

a) make any changes to the optional conditions that in the opinion of the court are rendered desirable by a change in the circumstances since those conditions were prescribed, (

b) relieve the offender, either absolutely or on such terms or for such period as the court deems desirable, of compliance with any optional condition, or (

c) decrease the period for which the probation order is to remain in force, and the court shall thereupon endorse the probation order accordingly and, if it changes the optional conditions, inform the offender of its action and give the offender a copy of the order so endorsed. 733.1

(1) An offender who is bound by a probation order and who, without reasonable excuse, fails or refuses to comply with that order is guilty of (

a) an indictable offence and is liable to imprisonment for a term of not more than four years; or (

b) an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than 18 months, or to a fine of not more than $5000, or to both.

(2) An accused who is charged with an offence under subsection (1) may be tried and punished by any court having jurisdiction to try that offence in the place where the offence is alleged to have been committed or in the place where the accused is found, is arrested or is in custody, but where the place where the accused is found, is arrested or is in custody is outside the province in which the offence is alleged to have been committed, no proceedings in respect of that offence shall be instituted in that place without the consent of the Attorney General of that province. [ 28 ]

Section 433 (

a) of the Criminal Code states: 433(

a) Every person who intentionally or recklessly causes damage by fire or explosion to property, whether or not that person owns the 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; Case Law [ 29 ] The Crown provided the following cases to the Court, some of which were also relied upon by Defence counsel: a. R. v. Kaufman, 2009 BCCA 165 ; b. R. v. Cootes, 2011 BCCA 398 c. R. v. Ireland, 2011 ABPC 134 ; d. R. v. Day, 2013 BCCA 172 ; e. R. v. Clifford, 2015 BCSC 875 ; f. R. v. Voong. 2015 BCCA 285 ; g. R. v. Hemmerling, 2017 BCPC 10 ; h. R. v.

Borge, 2017 BCPC 58 . [ 30 ] In addition to the cases provided by counsel, the Court brought to their attention a decision, released after their initial oral submissions, of the British Columbia Court of Appeal: R. v. Leclerc, 2017 BCCA 228 , which addressed the issue of “exceptional circumstances” and invited further submissions on the topic. SUBMISSIONS Crown

[ 31 ] The Crown submissions on sentence can be summarized as follows: a. although “exceptional circumstances” is a finding of fact by the Court there are no exceptional circumstances in this case as demonstrated by the case law provided and in particular Leclerc ; b . although the presence of a psychiatric illness may affect the sentencing process in this case Mr. Sharun had no history of psychiatric illness prior to the arson although he has obtained some treatment and counselling subsequent to his arrest; c. the following aggravating factors are present;

i) the arson was deliberately set and was planned as evidenced by the taping up of the doors and windows and the multiple fire sets; ii) the apartment building contained multiple units and many residents; iii) the arson was started late in the evening when it could be expected that many of the other residents would be in bed or readying themselves for bed. d. the following mitigating factors are present;

i) Mr. Sharun has no criminal record; ii) he has shown genuine remorse; iii) he entered a guilty plea; iv) he is a somewhat youthful offender;

v) he has taken many concrete and positive steps to address his mental health concerns. Defence [ 32 ] Defence counsel submits that there are exceptional circumstances in this case to take it out of the usual sentencing range. Those exceptional circumstances as they pertain to Mr.

Sharun and as described in the case law include: a. he has no criminal history or any history of contact with the RCMP; b. he excelled academically at school, in his chef training, and in his accounting courses; he is a community volunteer; c. he has complied completely with strict bail conditions since the offence date; d. the offence was an attempted suicide poorly thought out.

It was not due to pyromania, vengeance or an attempt to harm others; e. he made some attempts to confine the arson to his suite alone and to produce smoke rather than flames to enhance the chances of his death by smoke inhalation rather than burning; f. although he is very intelligent and well-reasoned at the time of the offence he was suffering from an undiagnosed mental illness which was not recognized by him or his family; g. he was frightened by his actions and after his rescue he was immediately concerned about the safety of the other tenants. [ 33 ] Mr.

Sharun's psychological and psychiatric interventions since the offence were all fully complied with by him and include: a. a two-week stay in the psychiatric wing of UHNBC; b. taking prescription medication as directed by his psychiatrist until he was permitted to discontinue it; c. maintaining regular contact with his treating physician and psychiatrist and complying with their direction and medical advice; d. participating in and cooperating with CAST until discharged from that resource; e. maintaining a healthy lifestyle to combat and minimize stressors including:

i) reducing his workload to one full-time position; ii) engaging in more social and sporting activities with friends; iii) joining Toastmasters to become more involved in the community and becoming the treasurer of his local chapter. [ 34 ] Defence counsel also submits that there are many mitigating factors that support the community-based sentence for Mr. Sharun including:

a. he has pleaded guilty, accepted responsibility, expressed remorse and is prepared to pay restitution; b. he cooperated with the RCMP, Community Corrections, and his treating doctors; c. his relative youthfulness at age 27; d. his previously undiagnosed mental health issues are now recognized and have been fully addressed through treatment andcounselling; e. the psychological report notes him to be a low risk to reoffend; f. he had no malicious intent on committing the arson; it was a result of a mental health lapse; h. he has community support including his family and his employer. Mr.

Sharun [35] When given the opportunity to speak Mr. Sharun expressed deep regret for his actions and that he wanted to move forward andmake himself a better person. DISCUSSION Arson Offences [36] Arson offences have been the topic of judicial consideration and comment on numerous occasions.

Humankind's historicinteraction with and fear of fire, the great conflagrations that consumed many cities over the centuries, as well as the seemingrandomness of what fire destroys once started all seem to play a role in how arson offences are addressed in determining an appropriatesentence. [37] It is clear from the case law that the primary objectives in sentencing arson cases are denunciation and deterrence, both generaland specific. [38] In paragraph 15 of Day, the court referred to R. v.

K.H., (1994) (NB CA), 146 N.B.R. (2d) 372 (C.A.) withregard to the seriousness of arson and the unpredictability of fire at paragraph 6: 6. By any yardstick, arson is a serious offence. An adult is liable to imprisonment for 14 years. Fire, no matter how well-planned, isoften erratic and unpredictable and gives rise to unforeseen consequences. For sentencing purposes, arsonists are sometimes divided intofour types: pyromaniacs or persons who are mentally disturbed, those who burn for no special reason or grudge, vandals and those whoburn for financial gain.

KH and his two companions fall into the latter category which is generally considered to be the mostblameworthy type of arson is attracting the most severe punishment although there are ranges within each category. [39] In Ireland, the Provincial Court of Alberta commented in a similar fashion by referring to R. v. Fewer, [2004] N.J. No.433 (N.L.Prov. Ct.) where that court said: The primary principles of sentencing that must be applied in all cases of arson are those of general deterrence and denunciation.

Arsonobviously causes property damage, however, the seriousness of this offence exceeds well beyond any property damage that might occur. Fire is inherently dangerous and difficult to control. Setting fire to a building can have unintended and fatal consequences. There arevarious individuals in our society that have the unenviable task of being required to respond to fires. They risk their lives every time theydo so. Arsonists recklessly placed the lives and safety of such individuals at risk.

Therefore, the sentences imposed for this offence mustreflect this factor. [40] In Kaufman, the Court of Appeal referred to its earlier decision in R. v. Keber, 2005 BCCA 543 where it said at paragraph 7: 7. It is not uncommon for lengthy periods of probation to be imposed in cases where offenders have been convicted of arson and wherethere are concerns about rehabilitation and the protection of the public. Sentencing Ranges [41] Although courts regularly rely on “ranges” with regard to sentencing, each case must be determined on its own set ofcircumstances as they pertain to the events and the offender.

It is commonly accepted that sentences imposed in other cases may be oflimited assistance in determining a fit sentence. This was discussed by the Supreme Court of Canada in R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, where the Court said at paragraph 92:

[92] Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.

For those reasons, consistent with the general standard of review we articulated in Shropshire , I believe that a court of appeal should only intervene to minimize the disparity of sentences with a sentence imposed by the trial Judge is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes. and earlier at paragraph 81: The objective of denunciation mandates that a sentence should also communicate society’s condemnation of that particular offender’s conduct.

In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic core values as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v. Sergeant , “society, through the courts, must show its abhorrence of particular types of crime and the only way in which the courts can show this is by the sentences they pass”.

The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated.

In short, in addition to attaching negative consequences undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code . [ 42 ] The Supreme Court of Canada revisited the role of the sentencing judge in R. v. Nasogaluak, 2010 SCC 6 , where the court said at paragraph 43: 43.

The language in ss. 718 to 718.2 of the Code is sufficiently general to ensure that sentencing judges enjoy a broad discretion to craft a sentence that is tailored to the nature of the offence and the circumstances of the offender. The determination of a “fit” sentence is, subject to some specific statutory rules, an individualized process that requires the Judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case. (Citations deleted).

No one sentencing objective trumps the others and it falls to the sentencing Judge to determine which objective or objectives merit the greatest weight, given the particulars of the case. The a relative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences.

The Judge’s discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factors ensures that each case is decided on its facts, subject to the overarching guidelines and principles of the Code and the case law. [ 43 ] That concept was further addressed by the British Columbia Court of Appeal in Voong , at paragraphs 6 and 7 , where the Court said: [6] Imposing a sentence for criminal conduct is the purview of judges in the trial courts.

It is an individualized process, in that a sentence must be fashioned to take into account the circumstances of the offence, the circumstances of the offender, the moral blameworthiness of the offender, the principles of sentencing, and proportionality to the offence and the offender. [7] Much has been written about the philosophical principles that underlie our present-day sentencing ideology. For centuries, philosophers debated, and continue to debate, the role of punishment and the underlying ideology behind punishment.

As a result, the law has developed a number of sentencing principles, some conflicting, some ameliorating others, such as retribution and rehabilitation, and all that must be considered by the Judge who has to determine a “fit” sentence for the offender before him or her. It is not an easy task, and not a task that should come under microscopic scrutiny of the appellate court. [ 44 ] Although the sentencing principles of denunciation and deterrence are primary considerations in arson cases, the Court must also consider the circumstances of this case. Mr.

Sharun has no criminal record and although property was damaged no other person was injured. Therefore, the principles of rehabilitation and making reparations must also be weighed carefully. [ 45 ] The outcome in this case could have been far graver but the damage was contained through the quick action of FRS and no one, other than Mr. Sharun, was injured. Given what was ascertained by the experts in the psychological and psychiatric interventions after the event, Mr.

Sharun's undiagnosed mental health issues at the time reduced his moral culpability and hence the Court may find a reduced legal responsibility. [ 46 ] The Court accepts counsels’ description of the aggravating and mitigating factors in this case as being both fair and comprehensive. [ 47 ] However, when considering the provisions of the Criminal Code , Mr.

Sharun’s personal circumstances, his lack of criminal record, the aggravating and mitigating factors and the comparison of the circumstances in this case with the case law provided, the Crown's position on sentence is both within the appropriate sentencing range and just and appropriate absent any exceptional circumstances. [ 48 ] Before the consideration of exceptional circumstances, a sentence of two years less one day incarceration in a provincial prison

and two years of probation to follow would be the appropriate sentence in this case. Exceptional Circumstances [ 49 ] Cases in which exceptional circumstances are found are rare.

Not every case that has some, or even many, unique aspects meets the test as described in Leclerc and Voong, for a finding of unusual, special or exceptional circumstances. [ 50 ] It is incumbent upon a Defendant, as was done here, to raise the issue of exceptional circumstances and to provide submissions linking the facts of the case and the Defendant's personal circumstances to the factors that amount to exceptional circumstances as described by the Court of Appeal. [ 51 ] The onus falls to the Defendant, and not to the Crown, to satisfy the Court with regard to the existence of the exceptional circumstances and that they are sufficient to result in a sentence different from what the general outcome might otherwise be. [ 52 ] In Voong , the Court of Appeal, in addressing the issue of exceptional circumstances, discussed suspended sentences, conditional sentence orders, and probation as various tools a court can consider in arriving at a just and appropriate sentence.

On the topic of the deterrent effect of probation the Court said the following at paragraphs 37 through 39: [37] A probation order has primarily a rehabilitative objective; however, as the statutory terms refer to the purposes of “protecting society” and “reintegration into the community”, it is not limited to this objective. [38] What is required for the imposition of an optional condition in a probation order is a “nexus between the offender, the protection of the community and his reintegration into the community” (R. v.

Shoker, 2006 SCC 44 at paragraph 13 ). [39] A suspended sentence has been found to have a deterrent effect in some cases. Because a breach of the probation order can result in a revocation and sentencing on the original offence, it has been referred to as the “Sword of Damocles” hanging over the offender’s head.… [ 53 ] With regard to what factors may result in a determination of exceptional circumstances the Court said at paragraph 59: [59] …..

Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict, gainful employment, remorse and acknowledgment of the harm done to society as a result of the offences, as opposed to harm done to the offender as a result of being caught. This is a non-exhaustive list, but at the end of the day there must be circumstances that are above and beyond the norm to justify a noncustodial sentence.

It must be something that would lead a sentencing Judge to conclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by noncustodial sentence. However, Parliament, while not removing a noncustodial sentence for this type of offence, has concluded that CSO sentences are not available.

Thus, it will be the rare case where the standard of exceptional circumstances is met. [ 54 ] The concept of exceptional circumstances was recently referred to in Leclerc , where of the Court of Appeal noted those circumstances have also been described as unusual or special. In overruling the trial judge’s decision to grant co-accused Mr. Lamar a Conditional Sentence Order, the Court said at paragraphs 31 and 32: [31] In my respectful view, the Judge erred in his characterization of circumstances in respect to both Mr. Lamar and Mr. Leclerc as exceptional.

They are not circumstances that have any unusual or special aspect of any force. [32] Concerning Mr. Lamar, the Judge first referred to Mr. Lamar’s remorse, his lack of a prior criminal record, the reliance of Mr. Lamar’s mother upon his assistance, and the negative impact incarceration would have upon Mr. Lamar’s business and the employment of his employees. The circumstances simply are not exceptional, unusual or special. While remorse and lack of a criminal record are mitigating circumstances, they are common, and do not rise to any unusual level.

Nor do I consider that the negative affect of incarceration on Mr. Lamar’s family and employees described by the Judge can be characterized that way. Such negative consequences of this scale are common unhappy effects that often spill out from criminal conviction. [ 55 ] In this case the Court accepts Defence counsel's submissions concerning Mr. Sharun's circumstances.

Defence counsel submits that such circumstances are more than just different or unique and they meet and exceed the non-exhaustive list of factors to determine exceptional circumstances as described in Voong . [ 56 ] Although the arson was well thought out from the point of view of setting the stage for a smoke induced death for Mr. Sharun, it was the result of planning and implementation of events carried out by an undiagnosed 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. [ 57 ] Mr. Sharun has 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. [ 58 ] Taking all of these factors into account, the Court concludes Mr.

Sharun has gotten his otherwise unblemished life back on track and that there is no need to incarcerate him for the length of time an arson conviction would normally attract. [ 59 ] This is that type of rare case where the standard of exceptional, unusual, or special circumstances has been met. [ 60 ] There remains the issue of whether or not a finding of exceptional circumstances must result in a noncustodial sentence as in Voong or whether it could result in a custodial sentence of shorter duration or to be served in the community as was ordered in the trial decision of Leclerc .

It should be noted that in Leclerc the Court of Appeal found that those circumstances were not exceptional, special, or unusual and on that basis imposed a prison sentence. The Court of Appeal did not comment on whether a conditional sentence order instead of a prison sentence could amount to, in a rare case, an exceptional circumstance. [ 61 ] In this case it might be considered by some appropriate to impose some jail sentence even in light of a finding of exceptional circumstances as proposed by the Crown and its alternate submission. But what would that accomplish? The public is not in danger from Mr.

Sharun so long as he maintains his mental health, which by all indications he is doing. [ 62 ]

Section 718.2 (

e) requires the Court to consider all available alternative sanctions that are reasonable in the circumstances and consistent the harm done to victims or to the community. The victim here will be financially compensated by Mr. Sharun. The community would be better served by Mr. Sharun providing contributions, in excess of what is normally ordered for community work service. [ 63 ] Mr. Sharun does not require even a short intermittent prison sentence.

It would have minimal benefit to the community and the cost of administering such a sentence would be far more than requesting that Community Corrections supervise additional community work service for Mr. Sharun. [ 64 ] Therefore, 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. [ 65 ] In administering the community work service for Mr.

Sharun the Court urges Community Corrections officials to contact the Chief of the City of Prince George's Fire Rescue Service to see if that person would see some benefit to Mr. Sharun spending time with first responders to see on a first-hand basis the dangers and damages that fire can cause. DECISION Ancillary Orders [ 66 ] Count 1 on Information 44326-1 is a secondary designated offence. After considering the factors set out in

section 487.051 (3), the Court is satisfied that it is not in the best interest of the administration of justice to make an order in Form 5.04 authorizing the taking of samples of bodily substances from Stefan Alexander Sharun for the purpose of registration in the DNA national databank. [ 67 ] Although the maximum sentence for arson under

section 433 (

a) of the Criminal Code is life imprisonment, the Court declines to impose a firearms prohibition pursuant to

section 109 of the Code for the same reasons enunciated in Bogue . Sentence [ 68 ] Mr. Sharun, I am suspending the passing of sentence. You must comply with the conditions of a probation order for a term of three years. The conditions of the order are:

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

b) You must appear before the court as required to do so by the court;

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

d) You must report in person to a probation officer at 101-250 George St., Prince George, British Columbia by 3 p.m. today, November 22, 2017, and after that you must report as directed by the probation officer;

e) When first reporting to the probation officer you must inform him or her of your residential address and phone number. You must not change your address or phone number without advance written notice to your probation officer;

f) You must not leave British Columbia unless you have the advance written permission of the probation officer and you must carry the permission with you when you are outside the province;

g) You must not go to or be within 50 meters of 1840 Spruce St., Prince George, British Columbia, except while on the highway in a moving motor vehicle on your way to some other place;

h) You must attend, participate in and successfully complete any intake, assessment, counselling or program as directed by the probation officer. Without limiting the general nature of this condition the intakes, assessments, counselling or programs may relate to your mental health;

i) Having consented, you must do the following:

i) at the direction of your probation officer report to the Forensic Psychiatric Services or elsewhere for any intake, assessment,

counselling or treatment; ii) attend all scheduled appointments with your doctor, psychiatrist and counsellor; iii) take all medications prescribed to you; iv) give your doctor, psychiatrist, and counsellor a copy of this order;

v) provide your probation officer with the names, addresses and phone numbers of your doctor, psychiatrist and counsellor; vi) tell your doctor, psychiatrist, and counsellor that, if you do not follow any terms of this order, he or she is to inform your probation officer immediately; vii) if you decide not to follow these directions, you must immediately report to your probation officer when his or her office is open and tell your probation officer which directions you have declined to follow;

j) You must complete 100 hours of community work under the direction of the probation officer. Your community work service must be completed by September 30, 2019. Your community work service may be completed for the benefit of the St. Vincent De Paul Society and/or the City of Prince George Fire Rescue Services with the permission of those organizations and your probation officer;

k) You must pay restitution in the amount of $9,000 to the clerk of the court for the benefit of Intact Insurance Company, payable in monthly instalments of $300 each, payable on the first day of each month starting on January 1, 2018, and continuing until such time as the restitution of $9,000 is paid in full;

l) You must not possess any incendiary device, flammable product or explosive substance. This prohibition includes, but is not limited to, lighters, matches, jerry cans, fire accelerant and fireworks except with the written permission of your probation officer. If you are granted permission you must carry a copy of the permission when you possess any of these items outside of your residence.

m) You must apologize in writing to the residents of 1840 Spruce St. in a form satisfactory to your probation officer by January 31, 2018. The apology letter is to be delivered to the manager of that apartment building for posting in a public place within the building for a period of 60 days. [ 69 ] In addition to the restitution required as a term of the probation order, there will be a further order for restitution pursuant to

section 738 of the Criminal Code in favour of Intact Insurance Company in the amount of $28,191.07. Such amount is not payable before January 1, 2021, if the restitution payments required under the probation order are being maintained as ordered. In the event the restitution payments under the probation order are not paid in the required amount and on time, Intact Insurance Company can act on the stand alone restitution order immediately. [ 70 ] In the event Mr.

Sharun breaches any of the probation order terms, the Court urges the Crown to consider having him re-attend Court to be sentenced rather than pursue a Breach of Probation charge. ___________________________ M. J. Brecknell Regional Administrative Judge Northern Region Provincial Court of BC