R. v. Mason (H.J.), 2012 MBCA 71

Citation: R. v. Mason (H.J.), 2012 MBCA 71 Date: 20120622 Docket: AR 11-30-07552 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Richard J. Chartier Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin BETWEEN : HER MAJESTY THE QUEEN ) A. J. Kavanagh ) for the Appellant Respondent ) ) E. A.

Thomson - and - ) for the Respondent ) ) HOWARD JAMES MASON ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) June 22, 2012 CHARTIER J.A. (for the Court): 1 The accused has applied for leave to appeal and, if granted, to appeal his sentence. 2 The accused deliberately set fire to a couch in a rooming house where nine people lived and then left without alerting anyone to the fire. While six of the residents were able to escape injury, two others died and a third sustained burns to over 55 per cent of her body.

The accused turned himself in to police and pled guilty to two counts of manslaughter and one count of arson causing bodily harm. 3 The Crown sought a life sentence on the manslaughters, while the accused submitted that a sentence in the range of eight and one-half to ten years was appropriate. The sentencing judge imposed the maximum sentence of life imprisonment on each of the manslaughter counts and ten years concurrent on the arson cause bodily harm count. At the time of sentencing, the accused had already spent over four years in pre-sentence custody.

In her reasons, the sentencing judge correctly noted that, because the accused was being sentenced to life imprisonment, this period of pre-sentence custody would count toward his period of parole eligibility (see s. 746 of the Criminal Code ). 4 The accused appeals against the maximum sentence of life imprisonment on the ground that it is harsh and excessive. 5 The facts were set out by the sentencing judge as follows (at paras. 3-9): The facts are chilling. Mason was a participant at a drinking party in a rooming house with seven suites located at 402 Elgin Avenue, in Winnipeg.

For some reason not clearly articulated, he decided to set fire to a couch in the suite where he was while everyone else was passed out and then left the building without alerting anyone or setting off the fire alarm. The fire spread, two persons died, and one was seriously injured. Through luck, a number of other persons in the rooming house were able to get out before the fire spread, or the loss of life could have been much worse. The rooming house was heavily damaged. Nobody who lived there had contents insurance, and the residents suffered a total loss of their possessions.

Mason turned himself into police on December 24, 2006, and confessed to having started the fire. He told police that he was full of anger and wanted to hurt people. He also commented that it did not matter who he hurt. A number of the comments show that his actions were deliberate. A representative sampling follows: p. 17 - “I just got full of anger eh ... wanted to hurt some people” p. 27 - “that night I just wanted to fuckin’ do something.” ... “fuckin’ lighter’s a fuckin’ deadly weapon eh?” p. 34 - Q: “What were you hoping was the end result?” A: “rubby death” These comments are also, given Dr.

Somers’ report, indicative of someone who operates at a reduced intellectual level. The victim impact statements of Sandra Vaillant and Joseph Bradburn show that the two deceased had loving families who have suffered emotional distress as a result of the death of their loved ones. The victim impact statement of Linda Romanyshyn discusses how she was in hospital for five months as a result of her injuries. To date, she has had close to 30 surgeries and blood transfusions and physiotherapy, but is left with permanent scarring on her body.

Fifty-five percent of her body was burned, and she lost fingers as a result of the fire. She has suffered, and continues to suffer, tremendously. Mason comes before the court with an unenviable record. He was convicted in 1977 of set fire and in 2001 of arson. His record is replete with violence with ten convictions for assault, one for possess weapon dangerous to the public peace, three for robbery and one for rioting. His record contains many breaches of court and probation orders and many parole violations. As a result of his record, he has spent most of his adult life in jail.

He has already done three prior terms in the penitentiary. The first incarceration in a federal penitentiary occurred in 1986 when he was sentenced to 30 months. He managed to stay out on parole for a mere two weeks before revocation and then later only four days before parole was again revoked. In 1994, he was sentenced to two years; again, his behaviour on parole was less than enviable. Finally, in 2001, he was sentenced to two years for arson. In that case, he lit a rug hanging from the back deck at the rear of a house where his estranged spouse was living.

In that case, he also indicated that he got mad and that his temper got away from him. I am advised that the pre-sentence report prepared for the court at that time demonstrated that he minimized and rationalized his actions. In a stunning lack of insight, he purported to forgive his victim for putting him in jail. As a result of that conviction, parole was denied, as the Parole Board felt that his release plans were not realistic and that he was a high risk to re-offend. The parole predictions were prescient.

It is apparent that for many years Mason has had unresolved problems with alcohol and chemical substances and that he was consistently either unable or unwilling to deal with those problems. In 2001, the Parole Board found that his reintegration potential in the community was low and that his risk for the community was not manageable with the plan he put forward. Dr. Somers prepared a psychological assessment of Mason. The report describes someone who has limited intelligence and therefore limited ability to understand the consequences of his actions or control them.

He has been diagnosed as having an anti-social personality disorder. Dr. Somers describes him as a versatile and persistent offender, which certainly seems to adequately sum up his criminal record to date. He is diagnosed as someone with feelings of entitlement who will continue to act out distress for the balance of his days. He is someone who finds it difficult to take responsibility for his actions. And finally, Dr.

Somers confirms that he is a high risk factor in the community. 6 A maximum sentence is no longer simply reserved for the “worst offender, worst offence.” A sentencing judge may impose the maximum prison term when it is fit and just in the circumstances ( see R. v. Solowan , 2008 SCC 62 at para. 3 , [2008] 3 S.C.R. 309 ).

Moreover, and as was explained by Fish J. for a unanimous court, the decision to impose a maximum sentence is owed the same great deference as any other sentence and appellate intervention is justified “ only where the trial court applied the wrong principles or the sentence was clearly excessive in the circumstances” (at para. 10) . 7 The circumstances surrounding these offences can only be described as horrendous.

Moreover, the accused’s situation is very disconcerting, not only because of the callousness of his actions in this case, but also because the record evidences minimal prospects for rehabilitation, lack of empathy and insight, as well as repeated and continuous aggressive behaviour spanning his entire adult life. The accused has also failed to restrain this behaviour and has been unable or unwilling to address substance abuse and

anger management problems. While he has recently been diagnosed as a vulnerable person, that information was before the sentencing judge and she clearly took it into account. 8 We also note that this was his third arson-related offence and that there has been a clear escalation in the seriousness of this conduct. Unquestionably, his degree of moral blameworthiness is very high.

In our view, it was certainly open to the sentencing judge, on the evidentiary record before her, to conclude that the accused could not be deterred and that, out of public safety concerns, the time had come to physically remove and separate him from society and to put controls in place for the remainder of his life. 9 The accused has not demonstrated that the sentencing judge erred in principle or that the sentence was harsh and excessive.

We are all of the view that the sentence respects both the fundamental sentencing principle of proportionality and the “fundamental purpose of sentencing – the maintenance of a just, peaceful and safe society through the imposition of just sanctions” (see R. v. Ipeelee (M.) , 2012 SCC 13 at para. 37 , 428 N.R. 1 ).

Moreover, we are all of the view that, in the particular circumstances of this case, the imposition of the maximum sentence of life imprisonment is not unfit, let alone “clearly excessive.” It reflects the gravity of the crime and, more particularly, does not exceed the accused’s moral culpability. 10 While leave to appeal sentence is granted, the appeal is dismissed. J.A. J.A. J.A.