R. v. Alvarado, 2020 ONCJ 621

ONTARIO COURT OF JUSTICE CITATION: R. v. Alvarado , 2020 ONCJ 621 DATE: December 22, 2020 BETWEEN: HER MAJESTY THE QUEEN — AND — OSCAR LICEA ALVARADO Before Justice Sandra Bacchus Sentence K. Bartoska .......................................................................................... counsel for the Crown J. Lopez .......................................................................................... counsel for the Defendant Bacchus, J.: Overview [ 1 ] On October 18, 2019, Mr. Licea Alvarado started a fire in his girlfriend’s apartment located at 1234 York Mills Road in Toronto. Mr.

Licea Alvarado locked the door of the apartment and blocked the entrance door with piled up furniture. Fire personnel forcefully breached the apartment door and located Mr. Licea Alvarado in the apartment, unconscious, with an active fire burning. The Fire Marshall determined that the fire had started on the couch and spread laterally, jetting across the apartment and causing the plaster to collapse from the walls and ceiling. [ 2 ] The fire caused approximately $73,000. in damage. The cost of building repair was covered by insurance leaving the building owner out of pocket for the $2500. deductible. [ 3 ] Mr.

Licea Alvarado was admitted to hospital and treated for smoke inhalation. [ 4 ] No one other than Mr. Licea Alvarado, suffered any injuries as a result of the fire. [ 5 ] Mr. Licea Alvarado was in an intoxicated state at the time he set the fire. His urine analysis and toxicology screen were positive for alcohol, cocaine, cannabis and crystal methamphetamine. (CAMH report Exhibit 1 page 5). [ 6 ] Mr. Licea Alvarado set the fire in an attempt to kill himself.

Prior to setting the fire he contacted his girlfriend’s daughter and told her he was alone in the apartment and that he was going to kill himself. [ 7 ] On August 25, 2020, Mr. Licea Alvarado plead guilty to one count of Arson Endanger Life contrary to

section 433 (

a) of the Criminal Code . [ 8 ] The crown seeks a sentence of two years less a day, less credit for Mr. Licea Alvarado’s pre-sentence custody, and three years of probation. The crown also seeks a restitution order and DNA. The defense seeks a suspended sentence and probation given the length of Mr. Alvarado’s presentence custody, immigration consequences to Mr. Licea Alvarado, and arguing that a sentence reduction because of the Covid-19 pandemic, is appropriate in this case.

Range of Sentence [9] The fundamental principles of sentence set out in

section s. 718 of the Criminal Code require that the sentence imposeddenounces the offense, acts as a form of specific and general deterrence, and promotes the rehabilitation of the offender. [10] In order to achieve these sentencing goals the sentence must be proportionate to the gravity of the offense and the moralculpability of the offender; and it must be consistent with the range of sentences imposed in similar cases. [11] The maximum sentence for Arson is life. [12] Sentences for the offense of Arson Disregard Life generally range from upper reformatory prison sentences to penitentiarysentences in the range of 5 years depending on mitigating and aggravating factors of the particular case. (R v.

Bos, 2016 ONCA 443; R v.Fournel, 2012 ONSC 375 , 2012ONSC 375; aff’d 2014 ONCA 305). Aggravating and Mitigating Factors [13] The aggravating factors in this case are the following: - Mr. Licea Alvarado set a fire in a building that he would have known was occupied with many other tenants; - The residents of the building had to be evacuated and Mr. Licea Alvarado placed many innocent people in jeopardy by his actions; - Mr.

Licea Alvarado exacerbated the dangerousness of the situation he created by both locking and barricading the apartment door inorder to impede his rescue; - The fire itself was serious and caused substantial damage to property. [14] There are however numerous mitigating factors to consider as follows: - Mr. Licea Alvarado plead guilty and is remorseful for his actions. - Mr. LIcea Alvarado has no criminal record. - Mr. Licea Alvarado has job skills and has an offer of employment upon his release. (Pre-Sentence Report, Exhibit 2, page 4). - Mr. Licea Alvarado is a permanent resident.

Counsel submits that he will likely be deported as a result of the fact that he has pleadguilty to an indictable offense for which his sentence will be more than 6 months. [15] The most compelling mitigating factor I find is that Mr. Licea Alvarado suffers from mental illnesses that inform his commissionof this offense. [16] Mr. Licea Alvarado had attempted to commit suicide approximately four times before he committed this offense. In September2019, Mr. Licea Alvarado was apprehended under the Mental Health Act. [17] In June 2020, post this offense, Mr.

Licea Alvarado attempted to hang himself in his cell at the Toronto South Detention Centre(TSDC). [18] Mr. Licea Alvarado was assessed by Dr. Amin Ali at CAMH for the purpose of this sentencing. Dr. Ali has diagnosed Mr. LiceaAlvarado with Substance Use Disorders and Substance Induced Psychosis that likely contribute to his depressive symptoms. [19] Mr. Licea Alvarado is currently being treated with antipsychotic medication. [20] Mr.

Licea Alvarado’s substance and alcohol abuse issues began when he was a child and have had a detrimental impact on hislife including as a contributing factor to the dissolution of his first marriage and his estrangement from his young daughter. [21] Mr. Licea Alvarado has been prescribed medications during past hospital admissions but has not taken medication while in thecommunity or had any significant patient follow up. [22] Mr. Licea Alvarado states that he is willing to comply with treatment. [23] There is no evidence that Mr. Licea Alvarado has been recalcitrant in cooperating with treatment in the past.

For example, I notethat in March 2020, Mr. Licea Alvarado voluntarily presented himself to CAMH emergency department to receive treatment for cocaineand alcohol use disorders. (CAMH report - Exhibit 1 p. 5) [24] Rather the preponderance of the evidence supports a finding that past community treatment options have not been firmly in placefor Mr. Licea Alvarado. [25] Dr. Ali states that Mr. Licea Alvarado would benefit from follow up with a mental health provider and possible continuedmedication management, as well as further assessment. ((CAMH report - Exhibit 1 p. 10) Sentence (Before Credit)

[ 26 ] Having reviewed the cases and considering mitigating and aggravating factors, I find that the appropriate sentence in this case, before consideration of pre-sentence custody and any Covid credit or Covid related sentence reduction, is a sentence of 15 months jail. [ 27 ] Unlike cases imposed on the higher end of the range of sentence for Arson Disregard Life, Mr. Licea Alvarado did not have an intended victim or a specific desire to use the fire to harm anyone other than himself. [ 28 ] In R v. Leslie, 2018 O.J.

No. 346, 2018 ONSC 41 , the offender was a resident at a men’s shelter that housed 350 residents. The offender lit a bed sheet on fire and threw it at another resident who had angered him. The sheet missed the resident but landed on two mattresses causing other beds to catch fire. The shelter had to be evacuated. The offender was convicted after trial of Arson Disregard Life along with other offenses related to the fact that he repeatedly stabbed the victim after setting the fire. [ 29 ] Like Mr. Licea Alvarado, the offender in Leslie was subsequently diagnosed with a mental illness that informed his actions.

However, unlike Mr. Licea Alvarado, Mr. Leslie had threatened and was trying to harm a victim by setting the fire and he had a criminal record. The sentence imposed in Leslie in relation to the Arson offense was two years jail. [ 30 ] In R v. Yuan , 2013 O.J. No. 2691 , the offender was youthful, had no criminal record and was sentenced to 12 months in jail. The facts in Yuan are far more serious than Mr. Alvarado’s case in that Mr.

Yuan threatened another resident in the shelter where they were residing then lit the victim’s bunk on fire while the victim was sleeping in it as he attempted to hold the victim down. The victim was able to escape unharmed. The residents of the shelter were evacuated. The mattress which had been engulfed in flames was extinguished before the fire personnel arrived. There was no injury to the victim despite the alarming facts. Mr. Yuan suffered from complex mental illnesses. [ 31 ] Mitigating factors that distinguish Yuan supra from Mr. Licea Alvarado’s circumstance are as follows: Mr. Yuan’s youth; that Mr.

Yuan had been under psychiatric care prior to committing this offense but had stopped taking his medication; that Mr. Yuan received counselling and community and psychiatric services in the community while on bail; that the actual damage caused by Mr. Yuan in setting the fire appears to have been less serious than the damage caused by Mr. Licea Alvarado given that the intervention of fire personnel was not required to extinguish the fire set by Yuan. [ 32 ] In R v Johnston, 2014 OJ No. 3590 , the offender set fire to items and clothing in the living room of his apartment.

The apartment was on the sixth floor of a residential apartment building with many units and the offender had locked the door delaying entry of the firefighters. The offender told firefighters that he did not want to live. The damage to the apartment was $8500. The offender had no criminal record. He did have addiction issues and underwent counselling in advance of sentencing. The court imposed a15 month jail sentence. [ 33 ] The fire Mr. Licea Alvarado set caused significant property damage. It impacted the ceiling and walls of the unit; smoke reportedly billowed from the building.

It is reasonable to infer that the fire set by Mr. Licea Alvarado was far more serious and more dangerous than the fire in Johnston supra . [ 34 ] However, unlike the offender in Johnston , Mr. Licea Alvarado plead guilty and is entitled to credit on this basis. In addition, the serious nature of Mr. Licea Alvarado’s mental health issue is a significant factor in this case that diminishes Mr. Licea Alvarado’s moral culpability. Credit [ 35 ] Mr.

Licea Alvarado has been in custody a total of 179 days from June 6, 2020, to December 22, 2020, and a further 3 days on other charges for which he is entitled to credit on consent of the parties. The total pre-sentence custody at a rate of 1.5 to 1 is 273 days or 9 months and 3 days. Mr. Alvarado is entitled to such credit. [ 36 ] In appropriate circumstances Mr. Licea Alvarado may also be entitled to credit for harsh conditions in the institution that he has experienced as a result of Covid factors. [ 37 ] There is no evidence before me of specific lockdown days or unique hardship experienced by Mr.

Licea Alvarado while in jail. There is also no evidence that Mr. Licea Alvarado suffers from any physical condition that would make him more susceptible to severe illness or greater risk of harm if he were to contract the Covid-19 virus. [ 38 ] For these reasons I decline to enhance any of Mr. Alvarado’s pre-sentence custody specifically to reflect harsh conditions he endured during his time in custody.

SENTENCE REDUCTION [ 39 ] Central to the consideration of whether a sentence should be reduced to reflect the collateral consequence of incarceration during this time of a global pandemic is the fundamental principle that reducing the sentence will not result in a sentence that is disproportionately lenient or drastically outside the appropriate sentencing range: “…it cannot turn an inappropriate sentence into an appropriate one or justify dispositions that would place the public at risk”. ( R. v.

Hearns, 2020 ONSC 2365 para. 23 ) [ 40 ] Currently Toronto, Peel and York Region are in lockdown and effective December 26, 2020, the provincial government has mandated a lockdown for the entire province in an attempt to curb the second wave of the virus.

[ 41 ] As of December 4, 2020, the date this sentencing hearing was adjourned, the evidence before me was that the TSDC had been largely effective in controlling the spread of the virus in its institution and had not experienced any significant outbreaks. (TSDC Information Note dated November 30, 2020 – Exhibit 3). [ 42 ] However, following the adjournment of this sentencing hearing the health and safety status of the TSDC with respect to the management of the spread of the virus within the institution changed significantly. A serious outbreak in the jail was reported in the media.

I invited counsel to file further evidence or make further submissions if they wished given this apparent change in status. [ 43 ] The crown filed an updated Information Note dated December 15, 2020, confirming that an outbreak of the Covid-19 virus had been declared at the TSDC by Toronto Public Health on December 9, 2020 (Exhibit 4). The Note states that of the current population of 953 inmates, 34 inmates and 8 staff have tested positive for Covid-19.

This is a marked difference from the state of the jail as of November 30, 2020, where the Information Note previously filed by the crown, identified only one positive Covid-19 inmate and six staff who had tested positive. [ 44 ] The updated Information Note details specific measures that the institution has and continues to undertake to control the spread of the infection including: reducing the number of inmates on a unit to about half the capacity and requiring inmates who are newly admitted to the institution to quarantine for two weeks in a separate place from the housing units. [ 45 ] According to the updated Information Note inmates are not locked in their cells and can spend time in the yard.

Further, according to the Note, programming and professional visits are continuing, however personal visits have been cancelled as part of the Covid-19 red zone response. Visits are available only in special circumstances. [ 46 ] Mr. Lopes advises of significant delays over the past week in his attempts to get in touch with his client at the TSDC to discuss the impact of the outbreak protocol on him specifically. [ 47 ] Although there is no evidence before me that Mr.

Licea Alvarado or his unit have been specifically impacted by the increase in positive cases at this time, I find it reasonable to conclude that time spent in custody when the institution has now had to move to even more restrictive protocols to attempt to curb the spread within its own walls, makes the conditions of incarceration exceptionally harsh. [ 48 ] I cannot say and do not conclude without evidence that Mr. Licea Alvarado’s mental health has been impacted.

It is not beyond reason or experience to say that there are those who might feel safer in the confines of a jail rather than in the community even at this time. I do agree however that the loss of programming and personal visits and the restriction or elimination of in person professional visits is a consequence leading to unduly harsh circumstances of incarceration. [ 49 ] Understandably there is no known date when these restrictions will end for the institution let alone the community at large. [ 50 ] In my view a reduction in Mr.

Licea Alvarado’s sentence is warranted at this particular time with TSDC in outbreak protocol and Toronto and Peel in the grips of a second wave of the virus, under a mandated lockdown soon to expand to the entirety of the province of Ontario. [ 51 ] A sentence of 12 months incarceration will adequately reflect the need for denunciation for this serious offense while also taking into account Mr. Licea Alvarado’s diminished moral culpability in light of his mental illness and the harsh circumstances currently of his incarceration.

Sentence [ 52 ] The global sentence therefore is 12 months jail less pretrial custody of 9 months and 3 days. Mr.

Alvarado is to serve 2 months and 27 days to be followed by three years of probation. [ 53 ] A copy of the CAMH report Exhibit 1 will be appended to the probation order. [ 54 ] The terms of the probation are as follows: statutory terms; report by phone within 3 business day of his release and then thereafter as required; reside at an address approved of by probation services; not to attend 1284 York Mills Road in the city of Toronto; to attend for an assessment and any counselling indicated by the assessment with respect to: mental health issues, substance and alcohol abuse, learning strategies, life skills; to seek work or attend school; not to possess explosive substances or incendiary devices unless under supervision for purposes of your employment; to pay restitution in the amount of $2500; payments will commence on June 1, 2021 at a rate of no less than $100 a month until the restitution is paid in full.

Mr. Licea Alvarado is to sign releases so that probation services can monitor his compliance with counselling and assessment. [ 55 ] There will be a free-standing restitution order of $2500. [ 56 ] I order that a sample of Mr. Licea Alvarado’s DNA be taken pursuant to

section 487.04 (d)(

i) of the Criminal Code . This is a secondary designated offense and I consider it an appropriate order to make given the nature of the offense. [ 57 ] I will order that Mr. Licea Alvarado pay a Victim fine Surcharge of $200. Mr. Licea Alvarado has 1 year to pay this fine. Released: December 22nd, 2020

Justice Sandra Bacchus