2021 QCCQ 1004, 2021 QCCQ 1004

R. c. Côté 2021 QCCQ 1004 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL « Criminal and Penal Division » N° : 500-01-206870-203 DATE : February 8, 2021 ________________________________________________________________________ BEFORE THE HONORABLE JUSTICE ONORABLE PATR PATRICIA COMPAGNONE, J.C.Q. _______________________________________________________________________ HER MAJESTY THE QUEEN Prosecut or c.

PAUL ANDREW CÔTÉ Accused _______________________________________________________________________ SENTENCE [1] _______________________________________________________________________ [ 1 ] On the evening of May 19, 2020, police officers and firefighters respond to emergency requests concerning fires in five different garbage bins and waste containers located in and around the same area of downtown Montreal. [ 2 ] All five fires occur within a period of less than 75 minutes.

All are eventually extinguished. [ 3 ] Video surveillance footage from many different cameras on the streets where these fires are lit make it possible to understand that the accused, a homeless person, is the one lighting each of these fires, on purpose. [ 4 ] Damages vary from partially damaged garbage bins to containers being totally destroyed.

Thankfully, no one was harmed. [ 5 ] Having pled guilty to lighting these fires , the accused now has to be sentenced appropriately. [ 6 ] The Crown recommends the accused be sentenced to 13 months imprisonment while defense suggest he be sentenced to 8 months imprisonment. Both parties agree that a probation of three years with a follow-up with a probation agent is a must. THE ISSUE [ 7 ] What is the just and appropriate sentence to impose on the accused? ANALYSIS [ 8 ] The fundamental principles of sentencing are codified in sections 718 and following of the Criminal Code .

The goal of sentencing is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society [2] . [ 9 ] This goal is met by the imposition of sanctions intended to meet one or more of the following objectives: to denounce unlawful conduct [3] ; to deter the offender and others from committing offences [4] ; to separate offenders from society when necessary [5] ; to assist in rehabilitating offenders [6] ; to provide reparations for harm done to victims or to the community [7] and to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community [8] . [ 10 ] The Court must be mindful of the principle that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances [9] .

A sentence should also be similar to sentences imposed on similar offenders for similar offences [10] . [ 11 ] Also, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender [11] . [ 12 ] The objective gravity of offences is illustrated by the maximum penalty set out by the legislator.

Every person who intentionally or recklessly causes damage by fire or explosion to property that is not wholly owned by that person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years [12] . [ 13 ] Sentencing involves the exercise of a broad discretion by the courts in balancing all the relevant factors in order to meet the objectives being pursued [13] .

Proportionality is the cardinal principle [14] . [ 14 ] Because of the presence of multiple offences, the Court must first determine the appropriate sentence for each offence and decide whether they should be concurrently or consecutively. If the totality of the sentence then violates the rule of proportionality, adjustments must then be made [15] . Again, proportionality is paramount. [ 15 ] With respect to the degree of responsibility of the offender, the Court takes into account the aggravating and mitigating

circumstances summarized below. Aggravating circumstances [ 16 ] The conduct of the accused is not an isolated incident. The number of fires, five, is quite worrisome. [ 17 ] All of them are lit near office or apartment buildings. On the video footage tendered into evidence, we can even see pedestrians walking by the fires. There was definitely potential risk for the safety of others [16] . [ 18 ] The damages are not minimal, all garbage bins and containers having to be either repaired or replaced. In addition, costs related to the manual labor required to do this were also incurred.

Soot on the buildings near where the fires were lit had to be cleaned. This amounts to at least $2,386 in damages and costs. [ 19 ] Also, the accused has prior convictions [17] . His criminal career starts in 1989, when he is 20 years old. It flourishes until 2020, in September, when he is found guilty of an assault committed on the same day as the fires. [ 20 ] He has 11 prior convictions of different nature, some of them concern violence. [ 21 ] Another important and relevant circumstance is the fact this is not the first time the accused has committed arson.

In 2009, he is convicted to a 9 months conditional sentence for such an offense, following a pre-sentential custody of 126 days. The totality of the sentence then being 396 days. [ 22 ] Indeed, the accused is not discouraged by the justice system trying to be effective in prohibiting the repetition of his criminal behaviour. It certainly shows the accused was not on the road to rehabilitation. [ 23 ] Most certainly, his previous sentences did not have the desired effect of deterring him from reoffending [18] . It reveals a pattern of ongoing criminality.

Mitigating circumstances [ 24 ] The accused recognizes his responsibility by pleading guilty to the charges. [ 25 ] However, he wishes his responsibility be diminished because of his mental health problems. [ 26 ] Initially, the accused had the intention of presenting a defense of mental disorder. After an assessment of his mental condition by a psychiatrist, Dr.

France Proulx from Philipe Pinel Institute, the accused was deemed not to be suffering from a mental disorder at the time of the events so as to exempt him from criminal responsibility. [ 27 ] Still, following Doctor Proulx’s expert opinion, the accused suffers from a chronic psychotic disorder, having received a diagnosis of paranoid schizophrenia in 1994. Unfortunately, he also has a long-standing habit of abusing from marijuana, alcohol and cocaine. At the time of the events, the accused states, to Dr.

Proulx, and to the Court also, while testifying, that he consumed drugs found in the pocket of a jacket he also found previous to the events. [ 28 ] This alcohol and drug consumption problematic is most certainly a hindrance to the accused’s mental disorder. Nevertheless, knowing this can interfere with his health, he continues to abuse of these substances. Thankfully, his detention has had a beneficial effect on him regarding this aspect as he states being sober since his arrest. [ 29 ] The accused testified on two different occasions.

First when he asked for an assessment order regarding his mental condition and then during the sentencing hearing. [ 30 ] He testified regarding the events stating he could remember some of them. Mostly about the jacket and drugs he found and consumed before lighting the fires. He explains these events happened after the death of his father which is why he was angry and got inebriated. [ 31 ] At 52 years of age, he states he had to be taken off the streets, needing somebody else to take control of his life.

His testimony reveals he has been a homeless man in Montreal for three years now, being originally from Toronto. [ 32 ] He also has plans to go back to Toronto and rekindle with his siblings. Since he has no money, nor job or home, he would do this by asking his sister to send money through the mail to a CLSC worker so he could pay for a bus ticket back to Toronto. He also says his step-sister would have a guest room for him in her home.

Later on, in cross-examination, the Court learns the accused has not spoken to any of his siblings about any of this. [ 33 ] In this context, the plan to go back to Toronto falls more under the category of a wish than a plan. [ 34 ] The accused’s profile raises concerns for his ability to take himself in hand. The risk of recidivism definitely remains. [ 35 ] Yet, there seems to be a seed of motivation in the accused, possibly influenced by his desire to get out of custody and his newfound soberness.

This is a positive and relevant circumstance relating to the accused. [ 36 ] It can be said the accused’s situation, though dire, is not without hope. All depends on his motivation and ability to maintain his soberness throughout the course of his sentence and after his release. [ 37 ] Finally, the defense argues the accused did not plan nor use any type of accelerant to start these fires, all being lit on the spur of the moment.

Though it is correct to state no accelerants were used and there seems to be no premeditation, there is still some sort of planning in the sense the accused definitely takes his time to make sure the fires are lit while using his lighter and some paper when lighting them

in the garbage bins. The video footage is most revealing about this [19] . Appropriate sentence [ 38 ] Quite clearly, arson crimes pose great danger to our society. [ 39 ] Both Crown and defense have submitted authorities regarding sentencing in arson cases [20] .

None of them are exactly like the case at bar, it is why comparative approach has its limits [21] . [ 40 ] However, it is clear from all the case law submitted that a fit sentence is one that, while being individualized, will sufficiently promote denunciation and deterrence. [ 41 ] It is also clear that the Crown’s recommendation falls into the range of sentences for similar offences, which is usually between one and five years’ imprisonment [22] . [ 42 ] Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives.

However, they should not be considered “averages”, let alone straightjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case [23] . [ 43 ] The accused has also submitted arguments and authorities regarding addiction and mental illness as a mitigating circumstance [24] . [ 44 ] The Court agrees such difficulties are to be considered since proportionality is paramount.

However the Court must also be mindful of all other relevant circumstances regarding these difficulties. [ 45 ] More particularly, though aware of his mental illness and alcohol and drug consumption problems, the accused has still to address these issues in a concrete manner. His sobriety, intimately linked to his pre-sentence custody, is certainly fragile and embryonic.

The accused has not taken much significant steps to reduce the effect of these issues on his behavior when he will be eventually released. [ 46 ] A convincing demonstration of rehabilitation can certainly favor a sentence below the range of sentences usually imposed in such matters. Such is not the case here. [25] [ 47 ] Here, the accused has a lengthy criminal record and rehabilitation is a long way from being achieved. He has also served some prison time and a conditional sentence for the exact same offences.

The accused poses a real risk of reoffending. [ 48 ] However, the accused testified sincerely regarding his actions and criminal behavior, willing to recognize his responsibility and thankful for the opportunity his soberness in custody has given him to be more conscious of life. Even his physique has changed, being clean, nourished and drug free.

So, all is not without hope, he still has time to amend himself and address his health and dependency issues. [ 49 ] For the defense, the 59 days served by the accused before his appearance in the present case on July 17, 2020, regarding the assault charge for which he was found guilty on September 2, 2020, are to be counted into the totality of the sentence to be imposed.

It is one of the reasons defense suggest 8 months imprisonment, the totality of the sentence then being almost 10 months imprisonment. [ 50 ] The Court disagrees with this, the prison term to which the accused was sentenced concerning the assault charge having been completely served between May 19, 2020 and July 17, 2020, and the accused being detained in this particular file only since his appearance on July 17, 2020. [ 51 ] Given all the above-mentioned reasons, the Court finds the suggestion of the Crown, though lenient, of 390 days (13 months) imprisonment to be a fit and appropriate sentence on each arson count. [ 52 ] Though 390 days is a bit less than his last arson sentence in 2009, it takes into account the circumstances surrounding the commission of the offences and the particular situation of the accused.

Totality [ 53 ] Being mindful that totality of the sentence must not violate the rule of proportionality, the Court finds that the imprisonment sentences must be served concurrently. [ 54 ] After much consideration of all mitigating, aggravating and other relevant circumstances regarding the offences and the accused, the Court finds the total sentence of 13 months imprisonment, as suggested by the Crown justified under the rules of proportionality and totality [26] . [ 55 ] It is certainly a lenient sentence considering all the circumstances but it is appropriate to the particular situation of the accused and his mental health situation.

Notwithstanding this last particular fact, a stricter sentence could have easily been imposed on the accused. Pre-sentence custody [ 56 ] In reality, the accused has been detained since May 19, 2020; a total of 233 days of pre-sentence custody. [ 57 ] However, 59 days of this custody has already been counted as prison time served following the accused’s guilt on an assault charge at the Municipal Court of Montreal on September 2, 2020 [27] . [ 58 ] Subtracting 59 days from the 233 days of pre-sentence custody, 174 days are left.

[ 59 ] In actuality, the accused has been detained in this particular file since July 17, 2020, for a total of 174 days of pre-sentence custody. [ 60 ] The Crown and the accused agree that the credit of 1.5 days for each day spent in pre-sentence custody should apply. [ 61 ] Applying a credit of 1.5 days for each day of the 174 days spent in pre-sentence custody [28] , 261 days must now be subtracted from the accused’s sentence.

CONCLUSION FOR THESE REASONS, THE COURT: IMPOSES a sentence of 390 days (13 months) imprisonment on counts 1, 2, 4, 5 and 6; DIRECTS that all counts be served concurrently to each other but consecutively to any other; TAKES INTO ACCOUNT the 174 days of pre-sentence custody already served by the accused; GRANTS a credit equivalent to 261 days pursuant to section 719(3.1) C.c., on each count, leaving a remainder of 129 days imprisonment to be served on each count, concurrently; ORDERS, following the prison term, a probation for three years with the following conditions to respect: 1.

Notify the Court in advance of any change of name or address, and promptly notify the Court of any change of employment or occupation; 2. Keep the peace and be of good behaviour; 3. Appear before the Court when required to do so by the Court; 4. A follow-up with a probation officer for the duration of the probation; 5. Report himself to a probation agent within 72 hours of his release from prison and, after that, as often as required, in the manner and time requested by his probation agent. 6. Follow any recommendation made by his probation agent concerning his psychiatric health and/or dependency issues; 7.

Prohibition to possess any firearms, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance ; 8. Prohibition to possess any lighter, matches, and other incendiary products; ORDERS , pursuant to

section 487.051(3) C.c., that the accused provide samples of bodily substances that are reasonably required for the purpose of D.N.A. analysis; ORDERS , that all items seized be forfeited and disposed according to law. ____________________________ PATRICIA COMPAGNONE, J.C.Q. M e Isabelle Mercier Counsel for the Crown M e Fabrice Poirier Counsel for the accused Date of hearing : November 2 and December 22, 2020