R. v. Smith, 2023 ONCJ 265

CITATION: R. v. Smith , 2023 ONCJ 265 DATE: 2023.06.21 Welland ONTARIO COURT OF JUSTICE BETWEEN: HIS MAJESTY THE KING — AND — MICHAEL SMITH Before Justice Fergus ODonnell Reasons for Sentence Delivered on 21 June, 2023 Mr. Graham Leach............................................................................................ for the Crown Mr. Ron Ellis................................................................... for the defendant, Michael Smith Fergus ODonnell J.: Overview 1 . Michael Smith has pleaded guilty to causing damage by fire and possession of incendiary materials, both on 3 August, 2021. Mr.

Leach for the Crown seeks a sentence of real jail in the range of six months, perhaps reduced somewhat in light of Mr. Smith’s personal details. Mr. Leach concedes that a conditional sentence is an available sentencing option, but disputes that it is a suitable one. Mr. Ellis contends on Mr. Smith’s behalf that a conditional sentence is both an available and a fit sentencing option. The Facts 2 . The facts of the case are as brief as they are peculiar and concerning. Mr. Smith was at the time a thirty-two-year-old with no criminal record, living in Welland.

His victim, Christopher Williams, was a stranger to him, living about one hundred metres from Mr. Smith’s home. There was no prior history between them at all. 3 . Around 10:15 p.m. on 3 August, 2021, Mr. Smith attended outside Mr. Williams’s home and threw a Molotov cocktail towards the house. It landed and, in keeping with its function, started a small fire, albeit on the sidewalk. Neighbours put out the fire with a hose and told Mr. Williams what had happened. When Mr. Williams came out, Mr. Smith was still across the road. When Mr. Williams challenged Mr. Smith about what he had done, Mr.

Smith launched a second Molotov cocktail, which exploded near Mr. Williams’s feet, forcing Mr. Williams to dive and roll, thereby avoiding injuries. 4 . Mr. Smith then left, but was tracked by a police dog back to his own yard, where a third Molotov cocktail was found, forming the basis for the second charge. Mr. Smith was cooperative with the police. The Reports About Mr. Smith 5 . I have the benefit of two reports about Mr. Smith. The first is a report from St. Joseph’s Hospital in Hamilton about whether or not there was a basis to conclude that Mr. Smith might be “not criminally responsible” (“NCR”).

The second is a pre-sentence report. 6 . The NCR report recounts that Mr. Smith not only has no previous record, but he also has no prior involvement with the criminal justice system. He had a history of anxiety and alcohol abuse in the years leading up to his offences. More immediately preceding the event, he had been living with roommates. He was stressed because the roommates had moved out, causing him financial distress. To add to that, one of the ex-roommates was also his ex-girlfriend. Mr.

Smith had suggested they break up because he was not good enough for her and he did not want his mental health struggles to affect her life. These two changes drove his stress level higher than normal. Mr. Smith said that he was drinking ten tall-boy beers and a bottle of whiskey daily and the night of the offence he had tried to commit suicide by the ingestion of pills and alcohol and through the mechanism of carbon monoxide. This was not his first suicide attempt over the years. Mr. Smith’s sister opines that Mr.

Smith has been deeply affected by the death of their father and by the seven-year break in contact with his son from a youthful relationship. 7 . Mr. Smith came from a broken family, including an abusive and alcoholic father. His mother also had alcohol issues, but did her best to support the children as a working single parent. The childhood environment as described by Mr. Smith’s sister, however,

was overall chaotic. Mr. Smith’s relationship with his brother is complicated because of Mr. Smith’s alcohol dependency, but his brother runs a contracting business and is willing to have Mr. Smith work for him if he can remain sober. Mr. Smith says he has lost countless jobs in the construction industry because of his alcohol use and from missing work a lot due to anxiety and breakdowns. 8 . The psychiatric assessment concluded that Mr. Smith suffered from a number of issues including depression, anxiety and alcohol and controlled substance abuse.

He was not entitled to a finding of being “not criminally responsible” because any failure on his part to appreciate the wrongfulness of his acts on 3 August, 2021 was the product of excessive alcohol ingestion and that possible consequence was entirely predictable as a result of Mr. Smith’s previous patterns. 9 . The pre-sentence report is consistent with the psychiatric report. It also tells of a period during which Mr. Smith was homeless for a couple of years on and off around the age of twenty-seven. It adds the fact that since the offences Mr.

Smith has been living in a trailer on his sister’s rural property. His mother and his sister and his sister’s children live in the house on the same property. His sister has set rules for his behaviour. He can work for his brother’s company, although there are tensions between Mr. Smith’s behaviour and his brother’s expectations at times. His brother recognizes that Mr. Smith has challenges and does appreciate that Mr. Smith is an asset as an employee when he is not under the influence of alcohol or controlled substances. The Appropriate Sentence 10 .

As noted above, the Crown seeks a sentence in the six-month range, perhaps moderated for mitigating factors, but one that should be served in real jail. The defence seeks a conditional sentence. 11 . I shall start by stating that there is nothing immoderate or unfair in Mr. Leach’s position. He in no way seeks to diminish the mitigating factors such as Mr. Smith’s guilty plea or his status as a first offender or his mental health and substance abuse challenges. The six-month submission as to the length of a fit sentence is not excessive. It is the seriousness of Mr.

Smith’s offences that underlies his submission that this is a case for real jail rather than a conditional sentence. My focus in sentencing, says Mr. Leach, should be on general deterrence and denunciation. 12 . I cannot quibble for a moment with Mr. Leach’s assertion that Mr. Smith’s conduct was very serious and that it is largely out of luck and/or Mr. Williams’s agility that things did not turn out much worse than they did.

At the same time, criminal sentencing determinations are driven not only by the general or specific riskfulness of the offender’s conduct but also by the actual and often serendipitous outcomes. For example, the impaired driver who misses killing the cyclist by a metre or two is as morally guilty as the impaired driver who kills the cyclist but does not face the same consequence by a large measure. 13 . It is a given that proportionality is the cardinal principle of sentencing. The Supreme Court’s use of a definite

article and as powerful a word as “cardinal” in espousing that principle and in giving it constitutional stature is no small matter at all. Proportionality involves balancing the seriousness of an offender’s conduct (including the actual consequences of that conduct) with the offender’s degree of moral responsibility. It means that every criminal sentence must be tailor-made around those two components.

Obviously, the objectives and tools of sentencing set out in the Criminal Code (including deterrence, denunciation, rehabilitation, reparations, etc.) are subordinate considerations in calculating a fit sentence, but those factors are passengers whereas proportionality is the driver of the process. 14 . In this case, there is no gainsaying Mr. Leach’s assertion about the seriousness of the offence. Fire is inherently dangerous, both for its potential to injure and to damage, but also because of its frightening unpredictability.

The combination of an easily spreadable accelerant like gasoline and a human target makes it even more serious. The use of such a mechanism against property or even more so against any living creature is inherently repugnant. I can think of a great many circumstances in which a sentencing judge would expend little thought on the availability of a conditional sentence for such conduct. I would expect that in such a case the length of sentence suggested by Mr. Leach would be a significant multiple of the suggestion he makes for Mr.

Smith and there are certainly examples of that in the cases put before me and referred to later in these reasons. 15 . Moving from the serious misconduct here to the question of moral responsibility, however, the prospect of a conditional sentence becomes much more viable. I suspect that it is in respect of the materiality of Mr. Smith’s specific level of moral responsibility to the ultimate sentence that Mr. Leach and I diverge. 16 . Allow me to say here that the parties are agreed that Mr.

Smith undoubtedly meets all but one of the requirements set out in the Criminal Code : a fit sentence would be under two years in length, there is no mandatory minimum jail sentence for the offences and neither of the offences is included in the now very short list of excluded offences in s. 742.1 of the Criminal Code . The requirement that the Crown relies on is that a conditional sentence can only be imposed if it would, “not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing….” set out in the Criminal Code .

Those purposes include denunciation, general and specific deterrence, rehabilitation, reparations, and, where necessary , the separation of offenders from society. 17 .

In addition to using the qualifier, “where necessary” to describe the use of jail in s. 718 , the Criminal Code in s. 718.2 states that, “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….” 18 .

Since its advent in 1996, the availability of the conditional sentence as a sentencing option in Canada has ebbed and flowed, through a combination of litigation and legislation. To borrow from Dr. King, as the conditional sentence starts its second quarter- century as part of our law, however long the “arc of the moral universe” may be, “it bends towards justice” and that is reflected in both recent court decisions on conditional sentences and Parliament’s recent expansion of its availability.

Although these developments may not determine the outcome in a specific case, they must form part of a judge’s assessment of the suitability of a conditional sentence in each case. Some previous decisions, in particular decisions much earlier in the trajectory of conditional sentences and those decisions that were coloured by a different direction from a different Parliament, may not retain the persuasive or binding force they had before the most recent legislative and judicial re-set. 19 . It also bears noting that the criminal law can be somewhat inconsistent in its expectations.

For example, if I am asked to determine the significance of a teardrop tattoo on a defendant’s face, I must insist on a sound scientific or other evidentiary basis for drawing any conclusions. When it comes to the efficacy of general deterrence, however, no similar standard applies; rather the theoretical validity of general deterrence as an effective suppressor of future crime is simply taken as an

article of faith. Having kept an open ear on this issue for decades, I have yet to come across any convincing evidence that general deterrence from the severity of sentences actually works (in contrast to what can be said about the certainty of apprehension as an effective deterrent of crime).

That being said, I cannot entirely dismiss the possibility, logical or illogical, proved or unproved, because the Court of Appeal and the Criminal Code do not allow that option. General deterrence, however, remains but one of the factors to be considered. 20 . I must also consider that s. 718 of the Criminal Code says that, “the fundamental purpose of sentencing is to protect society….” and that, along with general deterrence, s. 718 requires me to impose a sentence that deters the specific offender and assists in rehabilitating him.

Those objectives are at least co-equal with general deterrence and I must ask myself how a specific sentence will achieve each of those objectives. 21 . Dealing first with general deterrence, I must assume that for it to be effective the court’s decisions on sentence come within the ken of members of society generally, especially that portion of society whose moral compass and/or personal life circumstances might not suffice to deter them from crime regardless of what the courts do and say.

I must then assume that they are rational and discerning actors who can appreciate the nuances that go into a criminal sentencing. I must then determine to what extent a potential offender who does not have Mr. Smith’s mitigating characteristics might be encouraged or discouraged from committing a similar offence based on the sentence imposed. Into this I must also factor the direction of the Supreme Court of Canada in R. v. Proulx, 2000 SCC 5 to the effect that a conditional sentence can have a significant general deterrent and denunciatory effect (paragraph 67). 22 .

When considering the weight to be given to general deterrence, which is but one consideration on sentencing, I must also factor in specific deterrence and rehabilitation. Will a sentence of real jail, one that is to be used with restraint to begin with, advance or hinder those objectives?

It would be folly for me to think that jails are anything other than a criminogenic environment, universities of crime, factories into which the raw material of the substance-dependant first offender with emotional challenges is deposited and subjected to the influences, education and socialization of much more accomplished offenders, thus very possibly coming out of the process as less likely to be specifically deterred because he has been exposed to an environment in which criminality is more acceptable and less likely to be rehabilitated for the same reason.

In making these assessments, of course, I must remember that in the present case I am not sentencing a person who acted out of directed malice or who did the acts that Mr. Smith did for profit, but I am instead sentencing a person who while intoxicated (albeit voluntarily) engaged in totally irrational behaviour for no apparent motive or benefit. In determining the fit sentence for Mr. Smith, I do not for a moment suggest that there may be many, many arson-type offences for which real jail would be a fit sentence. One such example can be found in the Court of Appeal’s decision in R. v.

Mirzakhalili , 2009 ONCA 905 , a case involving a very significant arson for profit tied to an insurance fraud that is as different from Mr. Smith’s case as chalk is from cheese. 23 . I must also keep in mind that experience demonstrates the general failure of incarceration to rehabilitate offenders and reintegrate them into society.

Lest anyone think I am going out on a limb to make such a sweeping statement, it is not my statement, although I agree with it; to the contrary, the last thirteen words of the previous sentence should be in quotation marks as they are the exact words of the Supreme Court in Proulx, 2000 SCC 5 (at paragraph 20 ). Immediately after that observation, the Supreme Court cited the testimony of the then Minister of Justice, Alan Rock, to the effect that, ”A general principle that runs throughout Bill C- 41 is that jails should be reserved for those who should be there.

Alternatives should be put in place for those who commits offences but who do not need or merit incarceration.” 24 . I have considered the cases helpfully provided to me by Mr. Ellis and Mr. Leach, although I agree with their fair observations that no single one is particularly on point for Mr. Smith’s circumstances or the details of his crimes.

Those cases, listed at the end of these reasons, [i] cover a broad range of offence details, a broad range of backgrounds and a broad range of outcomes, some after a guilty plea, some after a trial; but even where there is no case right on point, it is always helpful to receive cases that provide a panorama of sentencing outcomes, including a few of these cases that provide their own summaries of numerous relevant sentencings within them. 25 . The cases filed by Mr.

Ellis demonstrate circumstances in which various judges in various provinces have found a conditional sentence for an arson type offence to be appropriate based on the particular circumstances before them. I should note, however, that I do not take the Hirnschall decision upon which he relies (citation in endnote) as constituting our Court of Appeal’s endorsement of the conditional sentence imposed by the trial judge; very much to the contrary, Hirnschall was one of those fairly common outcomes in sentencing appeals where the Court of Appeal did not interfere because, in effect it was too late.

In the circumstances before them, rectifying an unfit conditional sentence imposed at trial by sending the defendant to jail long afterwards would cause an unfairness after the fact. (I also note, that, insofar as the Court of Appeal disapproved of the fitness of a conditional sentence for arson, Hirnschall was a case of arson for profit like Mirzakhalili, above, and it was a sentence imposed after trial, not after plea.) 26 .

In the final analysis, while recognizing the guidance of other courts, including the Court of Appeal, as to circumstances in which a conditional sentence may or may not be fit, I must be guided primarily by the specific facts of these offences and the specific circumstances of this offender and not be overly influenced by any suggestion that conditional sentences are not suitable for “these types of offences”.

Coming back to Proulx again, I am reminded by the Supreme Court (at paragraph 81) that: Offence-specific presumptions introduce unwarranted rigidity in the determination of whether a conditional sentence is a just and appropriate sanction. Such presumptions do not accord with the principle of proportionality set out in s. 718.1 and the value of individualization in sentencing, nor are they necessary to achieve the important objectives of uniformity and consistency in the use of conditional sentences. Conclusion . 27 .

I am satisfied that a conditional sentence of imprisonment, combined with a substantial period of probation would be consistent with the “safety of the community” standard as defined by the Supreme Court in Proulx and would be consistent with the principles and purposes of sentencing as set out in the Criminal Code and in the relevant authorities on sentencing generally and arson sentencing in particular. A sentence of that type would in my view be the optimal synthesis of deterrence, denunciation, rehabilitation and reparations to the community. It will provide the optimal framework for Mr.

Smith, under the guiding hand of his supervisor and probation officer, to address the challenges he has yet meaningfully to address and thereby to minimize the risk of him re-offending, with the overhanging threat of serious consequences if he does not comply with the terms of the two orders. 28 . In its broad strokes the sentence will consist of the following: a . A fifteen-month conditional sentence, with the first twelve months under house arrest with exceptions, the last three months under a 9 p.m. to 6 a.m. curfew with exceptions and all under electronic monitoring.

b. A three-year probation order given the nature of the issues Mr. Smith needs to address.29. The conditional sentence order shall include terms prohibiting Mr. Smith from having any contact with Mr. Williams or frombeing within fifty metres of any place he knows Mr. Williams to be or to frequent, along with a requirement that Mr. Smith attendcounselling (including residential treatment under the conditional sentence), that he work or attend school and that he perform one-hundred-and-twenty-five hours of community service under each of the two orders, with an option for Mr.

Smith to do additionalhours during the conditional sentence in order to reduce the number remaining to be performed under the probation order. Released: 21 June, 2023 [i] The cases referred to by counsel were as follows: R. v. Alvarado, [2020] O.J. No. 5814 (ONCJ) R. v. A.F., 2021 BCJ No. 1892 (BCPC) R. v. Gabourie, [2021] O.J. No. 58 (ONCJ)\ R v Hirnschall, (ON CA), 2003 OJ No. 2296 (ONCA) R. v. Kwong, 2013 BCJ No. 79 R v Levere, 2011 ONCA 576 , 2011 OJ No. 3961 R v MacKendrick, 2007 BCJ No. 306 R v Warwick, 2021 BCJ No. 2863 R. v. Sharpe, 2008 AJ No. 424