Court File and Parties
Court File No.: St. Catharines - 2111-998-11-N1481-00
Date: 2014-01-14
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Kristoffer Jonah
Before: Justice D.A. Harris
Heard: September 20, 2013
Reasons for Sentence: January 14, 2014
Counsel:
- A. Brown, counsel for the Crown
- S. Kim, counsel for the Accused, Kristoffer Jonah
Reasons for Sentence
HARRIS J.:
Conviction and Charge
[1] Following a trial, I convicted Kristoffer Jonah of:
On or about the 5th day of April in the year 2011 at the City of Niagara Falls in the Central West Region did, not being the whole owner of property, namely real property situated at 25 – 7001 Casey Street, intentionally or recklessly cause damage by fire to the said property, contrary to section 434 of the Criminal Code of Canada.
[2] He is before me today to be sentenced.
Sentencing Submissions
[3] Crown counsel suggested that I should sentence him to imprisonment for one year, followed by two years of probation. He also asked that I make a DNA order and a stand-alone restitution order in the amount of $31,741.96 in favour of State Farm Insurance to cover the cost of the damage done.
[4] Counsel for Mr. Jonah suggested that I impose a conditional sentence of imprisonment for 18 months to two years less one day. He agreed that probation and a DNA order were appropriate.
[5] I find that this is not an appropriate case for a conditional sentence. My reasons for this are as follows.
Conditional Sentence
[6] The conditional sentence came into being when section 742.1 of the Criminal Code was proclaimed in 1996.
[7] The Supreme Court of Canada subsequently stated that "Parliament clearly mandated that certain offenders who used to go to prison should now serve their sentence in the community."[1]
[8] The Supreme Court of Canada stated further that an offender who meets the criteria of section 742.1 will serve a sentence under strict surveillance in the community instead of going to prison. His liberty will be constrained by conditions to be attached to the sentence. In case of breach of conditions, the offender will be brought back before a judge who may order him to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence.
[9] Section 742.1 lists five criteria that a court must consider before deciding to impose a conditional sentence. These are:
the offender must be convicted of an offence that is not specifically excluded under the legislation;
the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;
the court must impose a term of imprisonment of less than two years;
the safety of the community would not be endangered by the offender serving the sentence in the community; and
a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.
[10] The first four criteria are prerequisites to any conditional sentence. These prerequisites answer the question of whether or not a conditional sentence is possible in the circumstances. Once they are met, the next question is whether a conditional sentence is appropriate. That decision turns upon a consideration of the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.
[11] In Mr. Jonah's case, the first four prerequisite criteria have been satisfied.
[12] His offence was not excluded under section 742.1 at the time that he committed it.[2]
[13] Nor is it punishable by a minimum term of imprisonment.
[14] Both counsel agreed that I should impose a sentence of imprisonment for less than two years.
[15] Finally, I find that Mr. Jonah serving his sentence in the community, subject to appropriate conditions, would not endanger the safety of the community. He has no prior criminal record. He has stayed out of trouble since being charged with the current offence. I am satisfied that, with the appropriate safeguards in place, there is no danger that he would return to crime following the imposition of a conditional sentence.
Sentencing Principles
[16] That then leaves the question of whether a conditional sentence is appropriate in all of the circumstances of this case. In making this decision, as I said before, I must consider the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.
[17] The fundamental purpose of sentencing as expressed in section 718 is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
[18] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.
[19] The determination of an appropriate sentence involves attempting to apply a blend of the above principles including specific and general deterrence, denunciation and rehabilitation.
[20] I must specifically consider section 718.2(d) which provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".
[21] I must also consider the impact of section 718.2(e) which provides that "... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders."
[22] The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen[3] and said at para. 36 that section 718.2(e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.
[23] The Supreme Court also noted that section 718 now requires a sentencing judge to consider more than the longstanding principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender.[4] As a general matter restorative justice involves some form of restitution and reintegration into the community. A conditional sentence is much more effective than jail in achieving these restorative justice goals.
[24] I must also note that the Supreme Court of Canada expressly said in Proulx that a conditional sentence is "a punitive sanction capable of achieving the objectives of denunciation and deterrence" although it is not as effective as a sentence of real imprisonment.
[25] Before I can apply these principles of sentencing, I must look at the facts underlying the offence here and at Mr. Jonah's background.
The Offence
[26] Mr. Jonah was in a common-law relationship with LR for about six years. They had a daughter K who was five years old at the time of the offence.
[27] Mr. Jonah and LR were planning to marry but they began to argue over infidelities on both sides. This argument degenerated to the point that LR called off the wedding and Mr. Jonah told her to leave the house.
[28] She did leave the following morning taking K with her.
[29] At 8:37 a.m., Mr. Jonah sent her a text message that read "I won't be here when you get back. Tell the creep that I love her."
[30] Mr. Jonah referred to their daughter as "the creep" as a term of affection.
[31] Either before or after sending that text message, Mr. Jonah obtained a can of gasoline from the garage and spread gasoline on the floor of the master bedroom. He then lit the gasoline with a lighter in an attempt to harm himself.
[32] He experienced a change of heart however, and removed the gas can to the kitchen in an attempt to contain the fire. He also called 911 at 9:08 a.m. and reported the fire.
[33] Firefighters arrived at 9:13 a.m. and entered the house. The fire was extinguished by 9:17 a.m.
[34] There was burn damage in those parts of the house closest to the fire. There was smoke damage in other parts of the house.
[35] State Farm Insurance has requested restitution in the amount of $31,741.96 to cover the cost of the damage done.
[36] Mr. Jonah suffered injuries including:
- second degree burns to his nose and lips,
- heavy sooting around his mouth and nose,
- singeing of facial hair,
- first degree burns to his face, neck, shoulders, chest, abdomen, arms, back and legs,
- second degree burns to the soles of both feet and the palm of his right hand.
[37] He was taken to hospital by ambulance and treated there.
Background of Mr. Jonah
[38] I have been provided with a Pre-Sentence Report and a number of reference letters which provide me with the following information.
[39] He is now 38 years old.
[40] He does not have a prior criminal record.
[41] His parents separated when he was three years old. His father's alcohol abuse was a factor in that break-up. Mr. Jonah had little contact with his father from then until his father died as a result of a heart attack eight years later.
[42] Mr. Jonah described his upbringing as having been generally good and supportive with no incidents of abuse.
[43] He dropped out of school to work at age 17, but then did what he needed to obtain his high school diploma the following year.
[44] He has been employed steadily since then and has worked for the same company for the past nine years. His manager describes him as "a reliable and professional employee who is an essential part of the success of the establishment".
[45] He reported that he has used alcohol and drugs recreationally at times in his life but denied issues with substance use at the time or since.
[46] He has sought counselling to "help manage the stress that he was experiencing while awaiting sentencing."
[47] In his statement to police[5] he denied any mental health issues at all, let alone suicidal ideation.
[48] The Pre-Sentence Report indicates that his mother "was unaware of [him] having any history of mental health issues and said he has never expressed any suicidal ideation."
Analysis
[49] It goes without saying that arson is a very serious offence.
[50] This is reflected, amongst other ways, in the maximum sentence of imprisonment for 14 years.
[51] The Ontario Court of Appeal stated in R. v. Mirzakhalili that "this court has consistently held that conditional sentences are not appropriate for serious arson offences."[6]
[52] Renaud J. notes in R. v. Levere that the Court of Appeal does not say that conditional sentences "are not appropriate for all arson offences."[7]
[53] R. v. Mirzakhalili does suggest however that arson is always serious, in part because there is always the potential for someone to be injured. As stated at para. 9, "it needs to be underlined that arson always jeopardizes the lives of fire fighters and other emergency personnel who respond to fires".[8]
[54] On the other hand, the Ontario Court of Appeal affirmed the conditional sentence imposed in R. v. Levere[9] making it clear that a conditional sentence may be appropriate in some arson cases.
[55] Parliament has since spoken on that issue. The most recent amendments to the Criminal Code preclude imposing a conditional sentence with respect to an offence for which the maximum term of imprisonment is 14 years. This does not prevent me from imposing a conditional sentence in this case. It does however provide me with an indication of what Parliament currently considers to be an appropriate form of sentence for this particular offence.
[56] In any event, I agree with Crown counsel that evidence of longstanding mental health issues has been a consistent factor in those arson cases where a conditional sentence has been imposed.
[57] Mr. Levere was "going through a period of depression. He was suicidal. He contacted the Mental Health Crisis team. He was placed on a waiting list to see a psychiatrist unfortunately, and there was a period of self-imposed social isolation."[10]
[58] The facts regarding Mr. Jonah are different from that. There is no evidence of mental illness on his part. There is in fact a denial of any mental health problems. As I stated before, the position taken by Mr. Jonah in his statement to the police was that he was enjoying his life and that he had no reason to start the fire and in fact he had not done so.
[59] I rejected his evidence on this point and found that there were serious problems with his marriage at the time. It is my suspicion that anyone who would try to kill themselves in any fashion, let alone by setting fire to their home, must be mentally ill. I do not, however, have any evidence before me as to the existence of, let alone the nature and extent of any such mental health issues.
[60] I accept that this was an isolated incident that was out of character for Mr. Jonah and that he is not a danger to reoffend.
[61] I recognize that the biggest victim in this case is his daughter, who lost her home, her possessions and her life together with both her mother and father. I accept that this weighs heavily upon Mr. Jonah and that to that degree he is remorseful about what happened.
[62] He is still part of her life now both through financial support and in seeing her two days per week. Sending him to jail will eliminate his ability to pay support or to see her.
[63] I must however balance these factors against the very serious offence that Mr. Jonah committed.
[64] Mr. Jonah caused considerable damage to his family's property. This loss is borne not only by him but also by his then common law partner and by their child.
[65] He endangered the lives and the property of his immediate neighbours.
[66] He endangered the lives of the firefighters who responded to the call.
[67] I note that he did call 911 and report the fire himself, thereby reducing the degree of danger to all of these people.
[68] I note also that he was not charged with the more serious offence of arson endangering life, contrary to section 433(a) of the Criminal Code.[11]
[69] That does not change the fact however that at the time that he poured gasoline, a fire accelerant, on the bedroom floor in his townhome and lit that gasoline, he was creating a danger to others that had the potential to become totally out of control.
[70] I note also that while he feels bad about what has happened to his daughter and to others, he still denies any responsibility for what occurred. I recognize that this is not to be considered as an aggravating factor when determining the appropriate sentence. Had Mr. Jonah entered a guilty plea and accepted responsibility for his actions however,[12] I would have considered that to be a mitigating fact which might have led me to impose a sentence that was less severe than that which would otherwise have been appropriate. In the circumstances here, I will simply disregard this.
[71] After considering all of the above factors, I find that a conditional sentence would not be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.
[72] The need to denounce offences such as this one and to deter like-minded individuals from committing such offences calls for a jail term, albeit one shorter than that advocated by Crown counsel.
Sentence
[73] I sentence Mr. Jonah to imprisonment for six months, followed by two years of probation.
[74] The terms of probation are that he will:
keep the peace and be of good behaviour;
appear before the court when required to do so by the court;
notify the court or the probation officer in advance of any change of name or address;
promptly notify the court or the probation officer of any change of employment or occupation;
report to a probation officer within two working days of his release and, thereafter, be under the supervision of a probation officer or a person authorized by the probation officer to assist in the supervision of the offender, and report at such times and places as that person may require;
cooperate with the probation officer and sign any consents or releases necessary to permit the probation officer to supervise him and provide on request proof of compliance with any term of this order;
attend for and actively participate in, to the satisfaction of his probation officer, any assessment, treatment or counselling as required by his probation officer;
not associate or communicate directly or indirectly with, or attend within 20 metres of LR or any place known to him to be her residence or school or place of employment or worship except:
(a) through or in the presence of his lawyer or a peace officer
(b) when in court as a party or a witness with respect to legal proceedings
(c) with her written revocable consent delivered by her to a probation officer in his probation office
(d) through a mutually agreed upon third party for the purpose of arranging or exercising access to children
(e) by email for the purpose of arranging access to or otherwise discussing children, or
(f) pursuant to a Family Court order.
[75] I am not including any conditions with respect to access to their daughter. I am confident that Family Court, and Family and Children's Services can deal with this issue better than I can.
[76] I make an order authorizing the taking of any number of samples of one or more bodily substances, including blood, that is reasonably required for the purpose of forensic DNA analysis.
[77] I also make a stand-alone restitution order in the amount of $31,741.96 in favour of State Farm Insurance.
[78] In light of the time to be spent in jail, Mr. Jonah has eight months in which to pay the victim fine surcharge.
Released: January 14, 2014
Signed: "Justice D.A. Harris"
Justice D.A. Harris
Footnotes
[1] R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449 (S.C.C.) at p. 464.
[2] The Criminal Code has since been amended such as to preclude imposing a conditional sentence for this offence but Mr. Jonah is clearly entitled to be sentenced according to the law at the time that he committed the offence.
[3] Gladue v. The Queen, [1999] S.C.J. No. 19 (S.C.C.).
[4] Ibid, at para. 43.
[5] Introduced as evidence during the trial.
[6] R. v. Mirzakhalili, 2009 ONCA 905, [2009] O.J. No. 5464 (Ont. C.A.), at para. 3 with specific reference to R. v. Fox, [2002] O.J. No. 2496 (Ont. C.A.) and R. v. Hirnschall, [2003] O.J. No. 2296 (Ont. C.A.).
[7] R. v. Levere, [2010] CarswellOnt 10902 (Ont. C.J.), at para. 69.
[8] R. v. Mirzakhalili, supra at para. 9.
[9] R. v. Levere, 2011 ONCA 576, [2011] O.J. No. 3961 (Ont. C.A.).
[10] R. v. Levere, supra FN 7, at para. 59.
[11] This offence has a maximum sentence of imprisonment for life.
[12] I note that Mr. Levere pled guilty. So did every other accused in the cases cited before me where a conditional sentence was imposed.
