R. v. Stephenson, 2011 ONCJ 484

COURT FILE No.: Toronto 327946 DATE: 2011·10·08 Citation: R. v. Stephenson , 2011 ONCJ 484 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — BRIAN RAY STEPHENSON Before Justice P. Robertson Heard on June 14, August 9 and 23 and September 6, 2011 Reasons for Sentence released on September 8, 2011 Jason Balgopal ........................................................................................................... for the Crown Mohammed Syed ......................................................................... for the accused Brian Stephenson ROBERTSON, J.: [ 1 ] Mr.

Stephenson entered his pleas on June 14, 2011. Since that time sentencing has been delayed for a number of reasons – to allow for the preparation of a pre-sentence report, to receive a Victim Impact Statement and to receive submissions, including those of Mr. Stephenson himself. [ 2 ] Mr. Stephenson entered pleas to arson, knowing that the property was occupied (s. 433(a)), possession of incendiary material, mischief to property over $5000, mischief to property under $5000, and failing to comply with a probation order, by failing to keep the peace. [ 3 ] These offences arose over a short period of time.

On November 8, 2010 Mr. Stephenson splashed a can of turpentine, a flammable liquid, over the walls of a room in which he resided and threatened to ignite the liquid. On November 10, two days later he made good on this threat, when he punctured an aerosol can, spraying the contents on his bed and igniting the flammable substance. After alerting the residents that he had set a fire, he fled in a pre-arranged taxi.

The result was the total loss of property valued at $210,000 dollars. [ 4 ] Luckily no one died or was injured in the ensuring blaze. [ 5 ] Any sentencing begins with an assessment of the mitigating and aggravating factors. MITIGATING FACTORS [ 6 ] Mr. Stephenson, through his counsel, indicated early on that this matter would resolve by way of a guilty plea. As stated above he entered his plea back in June.

The cost of a trial in terms of both administrative costs and time have been saved, the cost to participants in terms of time, money and the anxiety of testifying have also been avoided; and perhaps most importantly, I accept the guilty plea as an indication of remorse. [ 7 ] Although I have found Mr. Stephenson guilty of arson under s. 433 of the Code, on the basis that he intentionally set a fire knowing that the property was either “inhabited or occupied”, it is not disputed that after setting the fire, he immediately notified the occupants of what he had done.

I accept that he did not intend anyone to be hurt by his actions and took steps to minimize the possibility of that happening. Despite this however, there remained a serious and real risk that people could have been seriously injured or killed. The seriousness of this crime is reflected in the fact that the maximum sentence for this offence is life. AGGRAVATING FACTORS [ 8 ] Mr. Stephenson’s actions were not isolated. They spanned three days. His acts were planned and deliberate. They were not spontaneous. [ 9 ] Mr. Stephenson has a criminal record.

Although there is nothing on his record of the type of offences to which he has been convicted, Mr. Stephenson nevertheless has a most unenviable record for a 30 year old. He has numerous convictions from 1995 to 2002, followed by a hiatus until 2008. Since then he has been convicted annually.

[10] The damage caused was significant - $210,000. [11] The effects on the property owner, Mr. Zakir Hossain, has been significant and although the Court questions that all ofthe impacts outlines in his Victim Impact Statement can be related to the accused, it is clear that the fire had far more than just a financialimpact. OTHER CONSIDERATIONS [12] Mr. Stephenson has spent a considerable amount of time in pre-trial and pre-sentence custody. I am urged by Mr. Syed togranted credit for much of this time on a 1.5:1 ratio. Mr. Syed advances more than one rationale for doing so. Firstly, Mr.

Stephensonfound his incarceration at the Don Jail to have been difficult. In his statement on sentencing he advised me that he had observed inmateto inmate violence, had to assist in the clean-up of the ensuring results and has been subject to frequent lockdowns, limited yardprivileges and at times, been subject to 3 people to a cell designed for 2 inmates. [13] Although the defence called no evidence on sentencing to substantiate Mr. Stephenson’s statements, I am willing toaccept his word that he did not find his stay at the Don Jail to have been pleasant. Jails are generally toxic environments.

Frankly, theyare not designed to be pleasant in either their design or their operation. [14] I don’t wish to minimize the negative experiences of incarceration. They are very real, but I do not see Mr. Stephenson’experience to have been exceptional. I accept his word that he found his detention at the Don Jail to be unpleasant, but I do not haveevidence of prolonged overcrowding, or continuous lockdowns caused by the authorities, such as a labour dispute or shortage of staff. Inote that Mr.

Stephenson was able to engage in numerous programs at the Don and due to his positive work ethic, was able to engage invarious employment programs. [15] The second reason advanced by the defence for giving enhanced credit is that Mr. Stephenson’s parole eligibility isunaffected by his pre-trial custody; i.e. his parole eligibility date is calculated upon being sentenced and does not give consideration tothe time served before sentencing.

Whereas a person serving sentence receives credit for 1.5 days for each day served towards hissentence, a person’s pre-sentence custody is not computed by Corrections in calculating the person’s release date. Mr. Syed urges uponme the decision of my brother Green, J. in R. v. Johnson 2011 ONCJ 77 , [2011] O.J. 822 (O.C.J.) wherein he accepts that thisdisparity justifies the granting of credit beyond 1:1, on the ratio of enhanced credit of 1.5:1 for all pre-trial custody on the basis of thelack of earned remission. [16] As I have stated in previous judgments, I do not accept this as correct.

If this were the case, all convicted parties, all ofwhom statutorily receive earned remission when serving sentence, would be subject to receiving enhanced credit on a 1.5:1 ratio for anypre-trial custody.

This is completely contradictory to the clearly stated intention of Parliament in the recent amendments to the CriminalCode, restricting credit for time served before sentencing except in exceptional cases to a 1:1 ratio – i.e., 1 day of credit for each dayserved before sentencing. [17] I cannot reconcile this aspect of Johnson wherein the Court endorses enhanced credit for a circumstance, earnedremission, that applies to every offender, when Parliament’s clear intention is to restrict pre-trial credit to a ratio of 1:1 but in exceptionalcircumstances, or to use the language of the

section of the Code, s. 719 (3.1), “if the circumstances justify it.”. Followed to its logicalconclusion, given that earned remission applies to all offenders, the “circumstances” would always justify enhanced credit. Credit on theratio of 1:1 would never apply. Given the clear language of the Criminal Code amendments, that can’t be correct. [18] I prefer the reasoning of Justice Harris in the cases of R. v. Larochelle 2011 ONCJ 339 , [2011] O.J. 2985 and R.v. Bridgeman [2011] O.J. 1215.

What Harris, J. identifies in these two cases is that there is a difference between the time served incustody before a plea is entered and the time served, after plea, but awaiting sentence. Even then, credit, enhanced or not, is notautomatic. Their remains circumstances where no credit for any time served in advance of sentencing on the basis of the loss of earnedremission should be granted; for example, in the case of a person who due to his or her record is not a candidate for release and isunlikely to be released before their full sentence is served.

I accept however, generally, most inmates will both earn remission and bereleased on a date before their full sentence is completed, on a date calculated on being credited for 1.5 days for every day served. [19] The distinction made by Justice Harris in Larochelle and Bridgeman is between the time served before plea, a period oftime controlled by the accused, versus the time served after a plea but before sentencing, time that is controlled frequently by the Court. In this latter period the accused has little control.

It is a period frequently dictated by the Court, awaiting the receipt of variousdocuments needed by the judge to fashion the appropriate sentence; e.g. pre-sentence reports, victim impact statements or documents orevidence requested by the Court to assist it in sentencing. In light of the different treatment afforded these two different periods, I think itwise to use different terms to maintain the distinction between them.

I like to refer to the time served before plea or a finding of quiltfollowing trial, as constituting “pre-trial” custody, and the time served following trial and conviction or after plea but before sentencingas “pre-sentence” custody. [20] Before I address the treatment of these two distinctive periods, I wish to address Mr. Syed’s submission that the latter ofthese two time periods, the period following plea should not commence when the plea was entered but when the defence advised theCourt, in this case – me at a judicial pre-trial, that the accused was contemplating a plea. Mr.

Syed submits that as early as January 25,the defence indicated that the case was likely to resolve by way of plea and that this was demonstrated by the accused waiving his 11(b)rights from that time. [21] Although the defence makes a strong argument for using the date when the plea was contemplated as opposed to the datethe plea was entered, I am not persuaded that this period should be treated in the same way as the time period following the entering of aplea or conviction, a period over which the Court has almost exclusive control in determining when the sentence will be imposed.

I donot dispute that early on, it appeared that the case would likely be resolved by way of a plea but until a plea is entered, the accusedremains in control of the time period. [22] In this case, Mr. Stephenson did enter a plea, consistent with his previously stated intention, as communicated by counsel

to the Court in pre-trial discussions. Although this time the accused ultimately did plead guilty, resolution discussions which are held without prejudice to the accused changing their minds, are not of the same nature as the time period following the finding of guilt and where the Court is awaiting receipt of sentencing materials. In the absence of a plea, there is never a guarantee that the matter will resolve.

The matter remands in the control of the accused. [ 23 ] I am not persuaded that enhanced credit should be given to the time served during which the accused contemplates a guilty plea. [ 24 ] Following a plea or after the finding of guilt, the same rationale does not apply. This time is controlled by the Court, such as in this case, a pre-sentence report was ordered and additional documentation and submissions was sought by the Court. If Mr.

Stephenson had been sentenced on June 14 th when he entered his plea, the time served since that date to today’s date would have been calculated on a ratio of 1.5:1 in calculating his release date. [ 25 ] In

summary therefore, in application to the case of Mr. Stephenson, he was arrested on October 23, 2010 and served a total of 235 days until he entered his plea on June 14, 2011. He should be credited on a ratio of 1:1 for a total of 235 days of pre-trial credit. After June 14 th , matters were delayed pending receipt of court ordered reports and to accommodate receipt of reports sought by the crown. This time period runs from June 14 to today’s date, a total of 86 days. I grant credit for this period on an enhanced basis of 1.5:1, for the equivalent credit of 129 days. In total therefore, I grant Mr.

Stephenson a total credit for time served in both pre-trial and pre-sentence custody, the equivalent of 364 days. PRINCIPLES OF SENTENCING [ 26 ] The paramount principles of sentencing for these offences are specific deterrence, general deterrence and denunciation.

Given the accused’s response during pre-trial incarceration (i.e. his extensive involvement in the limited programs available to him in a detention facility) and his past behaviour while under probationary supervision, i.e. generally positive, rehabilitation is also an applicable sentencing principle, though it is clearly secondary to the other sentencing principles. [ 27 ] I have been provided a number of cases by both the crown and the defence and although all cases turn on their own unique facts, there is little dispute that the appropriate sentencing range for these offences is high reformatory to low penitentiary. [ 28 ] Mr.

Balgopal urges upon me that the appropriate sentence for Mr. Stephenson is a sentence of 2 years minus time served. Mr. Syed submits that a sentence in the 15-18 month range is appropriate, again to be adjusted for time served. Given what I am prepared to credit Mr. Stephenson for his time served, the crown seeks a period of further incarceration of basically a year, while the defence submissions adjusted for the credit I am prepared to grant, would result in an additional period of incarceration of 3 to 6 months. Both parties agree that Mr.

Stephenson has a number of significant underlying problems which explain not only these offences, but also likely provide an explanation to most, if not all of his criminal record. Both Mr. Balgopal and Mr. Syed urge me to impose a lengthy probationary period with terms structured to address the numerous demons that are at the root cause of Mr. Stephenson’s criminal behaviour – past, present and if not addressed, likely future. [ 29 ] I agree with both parties that a maximum probationary term of 3 years is appropriate. APPLICATION OF THE PRINCIPLES [ 30 ] Mr.

Stephenson has many demons caused by years of abuse from an early age. He had no reliable family structure growing up. His father was virtually non-existent in the family dynamic. His mother was a drug addict in an abusive relationship, ill- equipped to raise a family. The accused and his brothers had front row seats to the drug use by his mother and others who frequented the home. The accused saw his mother beaten on many an occasion by her companion. Finally the CAS stepped in. After 9 months, Mr. Stephenson was returned to his mother.

Unfortunately, the CAS’ involvement led to the boys being assigned a Big Brother. He turned out to be a sexual predator and for years, the accused and his brothers suffered often daily sexual abuse. Predictably, when Mr. Stephenson got old enough to resist and old enough to survive on his own, he left the home and lived in shelters or on the street. Again predictability, this led to both his long standing drug abuse and his related criminal record. [ 31 ] Mr.

Stephenson has never addressed the psychological scars from the sexual abuse or the anger from being abandoned to fend for him at an early age or from the breach of trust first by his mother and her abusive relationships or the breach of trust by the government organization that was supposed to protect him. [ 32 ] In addition to the underlying causes, the symptoms have not been addressed. Mr. Stephenson is a drug addict, with little to no formal counselling to address his problems. Mr. Stephenson has proven resilient to accepting counselling.

This might explain why some see him as stubborn and wishing to learn things his own way as opposed to being open to discussing the sexual abuse or addressing his drug addictions. Given his past, this is not at all surprising. [ 33 ] Although Mr. Stephenson’s personal history provides a sympathetic insight as to why it is that he finds himself again before a criminal court, it is also an explanation for why the crown, defence and the probation officer all agree that Mr.

Stephenson presents a continuing risk to community safety until the underlying causes to his criminality are addressed – until he confronts his demons, no matter how painful that will be. Without doing so, the future looks dim. [ 34 ] The ray of hope in all of this is that Mr. Stephenson is neither stupid nor without motivation at times. He has had limited success with some probation officers.

He has the ability to work hard as is demonstrated in his survival on the streets, his formation of his own construction company in the past, his dogged determination in pursuing financial compensation for the sexual abuse suffered by himself and his brothers, to his more recent involvement in numerous programs offered at the Don Jail. I am convinced that Mr. Stephenson has the tools within himself to address his demons. But I am also equally convinced that without accepting professional help. Mr. Stephenson is likely doomed to a life of crime, drugs and likely psychiatric harm.

[ 35 ] Although Mr. Stephenson has had marginal success in addressing his problems in a community setting, his support in the community is not strong. He has shown himself to display poor judgment as is evidenced by him, to use the vernacular – “blowing this financial award” of $385,000 in 5 months – contrasted with the handling of their awards by his bothers – one who purchased a house – the other who obtains the money via an annuity. [ 36 ] Mr. Stephenson has shown little or no insight into dealing with his drug addictions.

He appears to be hell bent on solving his problems on his own without the intervention of professionals. His compliance with past probation orders has been mixed. He needs professional help and had been reluctant in the past to accept such help. For these reasons, he continues to pose a significant threat to society and will continue to do so, so long as he fails to get professional help. [ 37 ] Mr. Stephenson has made greater progress while in incarceration.

He appears better equipped to do so in a controlled custodial setting which will first hopefully provide him the basic tools necessary to move forward towards living in the community, once released, crime free. THE SENTENCE [ 38 ] The paramount principles of sentencing are specific and general deterrence and denunciation. Rehabilitation is important but it is secondary to the other sentencing principles. The seriousness of the offences is demonstrated in that the offence of arson carries the maximum sentence of life. Despite Mr.

Stephenson’s warning to other occupants in the house to the fire that he set, their lives remained in danger. His acts were not spontaneous and even though his thoughts were clouded given that at the time of setting the fire he was coming down from his consumption of drugs, he still had an operating mind, knew what he was doing was wrong and comprehended the danger he was creating by setting the fire, as evidence by the fact he alerted the other tenants to the danger. The damage to the residence and contents was significant - $210,000. Although I am urged to impose a compensation order, the chance of Mr.

Hossain collecting any monies from Mr. Stephenson is likely an illusion. Mr. Stephenson’s criminal acts were of an escalating nature. All of the criminal acts were committed while on probation – which is further aggravating. [ 39 ] In weighing these principles, I believe the appropriate sentence is one of 2 years less a day. In light of pre-trial and pre- sentence credit, the sentence of incarceration will be reduced to one of 12 months. That sentence should be recorded as 12 months on the offence of Arson – Disregard for Human Life, s. 433 (

a) of the Code, on top of time served of 321 days credited as 364 days, 12 months concurrent on the offence of Mischief over $5000 and 3 months concurrent on each of the offences of Mischief Under $5000 and Possession of Incendiary Material. These sentences are to be served concurrent to the other sentences. The sentence on the final offence of Fail to Comply- Probation - will be 30 days concurrent to the other offences for a total of 12 months.

Although some of these offences occurred at a different time than the arson and therefore should principally be consecutive, in addressing the principal of totality, I have made the sentences concurrent. [ 40 ] Following release Mr. Stephenson will be subject to a probation order of 3 years subject to the following terms:

a) Report forthwith and thereafter as required

b) Take counselling for drug abuse

c) Take psychiatric counselling and participate fully in psychiatric assessments

d) Take psychological counselling and participate fully in psychological assessments including but not limited to one on one counselling for past sexual abuse

e) Take anger management counselling

f) Take any other counselling as directed by your probation officer

g) Sign any and all releases as required by probation to monitor your compliance and your progress in any such counselling

h) Possess no weapons as defined by the Criminal Code

i) Possess no explosive or incendiary device

j) Not to be within 100 metres of 63 Limevale Crescent, Toronto

k) Have no contact directly or indirectly with Mr. Zakir Hossain except through counsel [ 41 ] In addition to the probationary term, I make the following ancillary orders. [ 42 ] There will be a

section 109 order for life. [ 43 ] There will be a free standing restitution order in the amount of $210,000 to the credit of Mr. Zakir Hossain. [ 44 ] The arson offence is a secondary designated offence. There will be a DNA order for the taking of a sample of your blood Mr. Stephenson. That will be taken today by a qualified individual with a sterile lance – the purpose of which is to compare your DNA to that of any DNA in an outstanding crime or any crime in the future where DNA is located. [ 45 ] Now as to where Mr. Stephenson should serve his sentence, of course that is ultimately in the hands of Corrections.

At the highest I can but make a recommendation on the sentencing order. I am advised by Mr. Balgopal of the availability of the drug rehabilitation program at Brampton OCI. I am also to understand that one on one counselling is available to an inmate at OCI in regard

to sexual abuse – although that program is not specifically directed at victims of sexual abuse. I understand that provided Mr. Stephenson is not disqualified because of lack of motivation or behavioural problems inconsistent with the concentration required for the program, a sentence of 1 year is of sufficient length to be admitted into this drug rehab program. What Mr. Stephenson gets out of the program will in large part be based on what he is willing to put into the program. [ 46 ] As regard to addressing the root cause of Mr.

Stephenson’s problems with the criminal justice system, I do not disagree with both the crown and Mr. Syed that it seems to be centred on the unresolved issues surrounding his victimization by his Big Brother. I agree that until Mr.

Stephenson seeks professional help for this abuse he will continue to commit crime and will continue to pose a threat to the community. [ 47 ] Although some progress may be able to be made while serving sentence at OCI, particularly with respect to the issue surrounding drug abuse, much may have to wait for your participation at the Pinewoods Centre in Durham as regard to the residual effects of the sexual abuse. Mr. Syed advises me that this facility is uniquely able to address the childhood sexual abuse, the drug abuse and the mental health issues – all of which are present in Mr. Stephenson.

I am lead to believe that treatment at the Centre is first commenced on an inpatient basis, followed by continued treatment as an out-patient. [ 48 ] I do not believe that I have the authority to direct that the accused be counselled at Pinewood as an inpatient. I do believe however that it would be beneficial for Mr. Stephenson to start as an inpatient and that is my recommendation, but I believe that is as far as I can go in directing the Centre in how to conduct their treatment of Mr. Stephenson. [ 49 ] Therefore, I will add the following probationary term - Mr.

Stephenson is to be directed to attend as an inpatient, if appropriate, upon release from serving sentence to the Pinewood Centre for assessment, treatment and counselling for childhood sexual abuse, drug abuse and mental health issues and to continue such counselling and treatment as directed and sign all releases as required to allow probation to monitor your progress and compliance with any such assessments, treatment and counselling. [ 50 ] Finally, in light of the availability of the drug rehab program at OCI and the fact that on its face it would appear Mr.

Stephenson qualifies for this program, I will endorse the sentencing order that it is recommended that Mr. Stephenson serve his sentence at OCI. [ 51 ] Thank you counsel for your submissions and attention to this matter. [ 52 ] And to you Mr. Stephenson – a final word. You are intelligent. You have been through a lot with many people letting you down along the way, which no doubt explains why you think you can go it alone in addressing your demons. You need professional help. This order will give you that opportunity. Take it.

Without it you very much likely are going to continue to get into trouble, fuelled by a drug habit increasingly out of control, which will lead you to the commission of further criminal offences. Released: September 8, 2011 Signed: “Justice P. Robertson”