Her Majesty the Queen v. Klair [Indexed as: R. v. Klair]

71 O.R. (3d) 336

[2004] O.J. No. 2320

Docket No. C38923

Court of Appeal for Ontario,

Feldman, Sharpe JJ.A. and McCombs J. (ad hoc)

June 3, 2004

Criminal law -- Sentence -- Arson -- Life imprisonment -- Elderly first offender pleading guilty to arson causing bodily harm to four-year-old grandson after deliberately starting gasoline fuelled fires and leaving child in house -- Victim suffering horrendous and devastating injuries -- No psychiatric evidence called and offender offering no explanation for actions -- Trial judge characterizing offence as one of "stark horror" based on consequences to complainant and sentencing accused to life imprisonment -- Accused's actions showed disregard for child's safety but facts agreed to did not indicate fire deliberately set for purpose of inflicting injuries -- Accused's conduct not rising to level of blameworthiness sufficient to justify life imprisonment and "stark horror" classification to be avoided -- Appropriate sentence 12 years' imprisonment less four years' credit for two years' of pre-trial custody resulting in eight-year sentence.

Criminal law -- Sentence -- Principles -- Life imprisonment -- Elderly first offender pleading guilty to arson causing bodily harm to four-year-old grandson after deliberately starting gasoline fuelled fires and leaving child in house -- Victim suffering horrendous and devastating injuries -- No psychiatric evidence called and offender offering no explanation for actions -- Trial judge characterizing offence as one of "stark horror" based on consequences to complainant and sentencing accused to life imprisonment -- Accused's actions showed disregard for child's safety but facts agreed to do not indicate that fire deliberately set for purpose of inflicting injuries -- "Stark horror" classification to be avoided since Supreme Court decision in R. v. Cheddesingh -- Discussion of factors that justify sentence of life imprisonment -- Accused's conduct not rising to level of moral blameworthiness to justify life sentence nor do other appropriate factors -- Trial judge erring in inferring that accused suffering from mental disorder based solely on circumstances of this offence although there are cases in which may draw such inference without psychiatric evidence -- Appropriate sentence 12 years' incarceration less four years' credit for two years of pre-trial custody for total of eight years. [page337]

The appellant, who was then 70 years old, was babysitting his four-year-old grandson when he started three fires in the house using gasoline as an accelerant and then walked away from the house. Several of the downstairs tenants were at home and one of them managed to rescue the child and douse the flames that covered him. The child suffered horrendous and devastating injuries as a result of the fire. He suffered excruciating pain from second and third degree burns to about 60 per cent of his body. He lost his left ear, all the digits on his left hand, two fingers on his right hand and two toes. He had significant scarring and was in poor mental condition. The appellant accepted responsibility for the offence. He pleaded guilty to arson causing bodily harm contrary to s. 433 of the Criminal Code. He had no criminal record and was an active member in his local Sikh community, where he was respected as a hardworking person of high morals and good character. The accused denied that he intended to harm the victim and expressed remorse, but offered no explanation for his conduct. No psychiatric evidence was called. The trial judge found that the offence could properly be characterized as one of "stark horror". He recognized that in most "stark horror" cases, the violence, brutality or cruelty precedes or is contemporaneous with the conduct component of the external circumstances of the crime, rather than the consequences to the victim. However, he relied upon the horrific consequences to the victim in this case as the key component to his finding of stark horror. He inferred some form of mental disorder on the part of the accused as the only reasonable explanation for his conduct. He observed that, while expert evidence is often presented to show that the accused is a continuing danger to society to justify life imprisonment for "stark horror" cases, it is not always required. He sentenced the accused to life imprisonment. The accused appealed.

Held, the appeal should be allowed.

Per Sharpe J.A. (McCombs J. concurring): The trial judge erred by placing undue emphasis upon the consequences of the offence, that is, the horrific consequences to the victim, and giving insufficient attention to the actual circumstances of the offence and the blameworthiness of the accused. While the accused deliberately started the fire, he did not deliberately cause the victim to suffer his devastating injuries. The defence position that the accused had not intended to harm the victim was not challenged at trial.

Since the Supreme Court of Canada decision in R. v. Cheddesingh, the term "stark horror" should be avoided as unhelpful. A maximum penalty such as life imprisonment is only appropriate if the offence is of sufficient gravity and the offender displays sufficient blameworthiness. In this case, the severe consequences to the victim were not accompanied by conduct that rose to a level of blameworthiness sufficient to justify a sentence of life imprisonment. To impose a life sentence upon a first offender for unintended consequences, even where those consequences were caused recklessly, would amount to a significant and unwarranted shift in the law of sentencing and invite life sentences in a significant number of cases involving dire but unintended consequences and where the sentence could not be justified on the basis of the blameworthiness of the accused. The accused had not demonstrated a pattern of violent behaviour and there was no indication, apart from the offence itself, that he had any propensity to violence.

The court outlined a non-exhaustive list of factors that might justify the imposition of life imprisonment including cruelty, brutality or unusual violence; terrorizing and torturing the victim over a period of time; intentional, prolonged, repeated violence against the victim; acts needlessly repeated or lack of feeling suggesting a sadistic intent to cause terror or torture; intentional infliction of [page338] pain, fright, panic that is tantamount to torture solely for gratification or other perverse reasons; cruelty and callousness not frequently encountered; or, deliberate infliction of brutal, disfiguring, life threatening injuries. Cheddesingh requires both that the offence be of "sufficient gravity" and that an offender "displays sufficient blameworthiness" before a life sentence is appropriate. An application of those principles to this case does not justify the imposition of the maximum sentence of life sentence.

Psychiatric evidence is not always required to sustain a life sentence. In some cases, the offence is so bizarre and shocking that it is quite appropriate to infer from the circumstances of the offence itself that the accused poses an ongoing danger to the public. However, where the circumstances of the offence are not sufficient, psychiatric evidence will be required. This case fell into the latter category, and the inference of mental disorder was not available.

The appropriate sentence in this case was 12 years' imprisonment. The accused was entitled to credit for two years of pre-trial custody on a two-for-one basis. The sentence was varied to eight years' imprisonment.

Per Feldman J.A. (dissenting): It was a mischaracterization of the trial judge's reasons to state that he based his sentence primarily on the horrific consequences of the arson to the victim, rather than on the blameworthiness of the accused, or to conclude that this was a shift that would lead to a large number of life sentences where the conduct of the accused is not sufficiently blameworthy to merit such a sentence. First, the trial judge limited the circumstances when the consequences may be a factor to a charge where the maximum penalty is increased to reflect the effect of the criminal conduct on a victim, such as in s. 433 of the Code. Second, although the trial judge included the consequences to the victim as part of his "stark horror" analysis, his primary focus was on the blameworthiness of the conduct of the accused. The trial judge made no error in law or principle and his judgment was entitled to deference.

APPEAL by the accused from a sentence imposed by Watt J., [2002] O.J. No. 4006 (S.C.J.) for arson causing bodily harm.

R. v. Cheddesingh, [2004] 1 S.C.R. 433, [2004] S.C.J. No. 15, 2004 SCC 16, J.E. 2004-789, 186 O.A.C. 184, 182 C.C.C. (3d) 37, 19 C.R. (6th) 35, affg (2002), 2002 49362 (ON CA), 60 O.R. (3d) 721, [2002] O.J. No. 3176, 162 O.A.C. 151, 168 C.C.C. (3d) 310 (C.A.), apld R. v. Charlebois, [1987] O.J. No. 886, 22 O.A.C. 235 (C.A.); R. v. Horvath (1982), 1982 3838 (ON CA), 2 C.C.C. (3d) 196 (Ont. C.A.); R. v. Lieug, 1995 1393 (ON CA), [1995] O.J. No. 2424, 82 O.A.C. 317 (C.A.); R. v. Mesgun (1997), 1997 623 (ON CA), 36 O.R. (3d) 739, 48 C.R.R. (2d) 286, 121 C.C.C. (3d) 439 (C.A.), varg [1993] O.J. No. 952 (Prov. Div.), distd R. v. Brown (2001), 2001 NFCA 8, 152 C.C.C. (3d) 26 (Nfld. C.A.); R. v. Edwards (2001), 2001 24105 (ON CA), 54 O.R. (3d) 737, 155 C.C.C. (3d) 473, 45 C.R. (5th) 177 (C.A.), consd Other cases referred to Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 219 Sask. R. 1, 211 D.L.R. (4th) 577, 286 N.R. 1, 272 W.A.C. 1, [2002] 7 W.W.R. 1, 30 M.P.L.R. (3d) 1, 2002 SCC 33, 10 C.C.L.T. (3d) 157; R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, 194 N.R. 321, 105 C.C.C. (3d) 327, 46 C.R. (4th) 269; R. v. McArthur, 2004 8759 (ON CA), [2004] O.J. No. 721, 184 O.A.C. 108, 182 C.C.C. (3d) 230, 19 C.R. (6th) 38 (C.A.); R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, 129 D.L.R. (4th) 657, 188 N.R. 284, 102 C.C.C. (3d) 193, 43 C.R. (4th) 269; R. v. Varga (2001), 2001 8610 (ON CA), 88 C.R.R. (2d) 10, 159 C.C.C. (3d) 502, 48 C.R. (5th) 387 (Ont. C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 433, 434, 718, 718.1 [page339] Authorities referred to Manson, A., Law of Sentencing (Toronto: Irwin Law, 2001)

Mark J. Sandler, for appellant. Paul Lindsay, for respondent.

[1] SHARPE J.A. (MCCOMBS J. concurring): -- The appellant pleaded guilty to one count of arson causing bodily harm and was sentenced to life imprisonment. He seeks leave to appeal, and if leave is granted, appeals his sentence to this court.

Facts

1. Circumstances of the offence

[2] In the early afternoon of September 20, 2000, the appellant, at the time 70 years old, was at his son's home babysitting Rajvir Klair, his four-year-old grandson. Some of the downstairs tenants were at home, although it is not clear whether the appellant was aware of their presence. Shortly after 2 p.m., the appellant started three fires in the bedrooms of his son's house using gasoline as an accelerant. After setting the fires, he walked away from the house. One of the tenants heard smoke alarms and the cries of Rajvir and came upstairs. She could not enter the house to rescue Rajvir because of the intensity of the fire. Rajvir was screaming "monster, monster". After putting her own child in a safe place, the tenant managed to coax Rajvir outside and to douse the flames that covered him.

[3] The appellant returned to the house the next day. He was highly intoxicated. He asked if Rajvir had been saved and, when told that Rajvir was alive, said "Thank God." He stated that he had tried to hang himself with his turban. There were no physical signs of any such attempt, but the appellant was not wearing his turban when he was arrested.

[4] Rajvir suffered horrendous and devastating injuries as a result of the fire. He suffered excruciating pain from second and third degree burns to about 60 per cent of his body. He has already undergone approximately 20 operations and further surgery is expected. Rajvir has almost no use of his right arm and limited movement of his left arm. He lost his left ear, all digits on his left hand, two fingers on his right hand and two toes. He has significant scarring and at the time of sentencing was in poor mental condition. [page340]

2. Circumstances of the appellant

[5] The appellant came to Canada from India in 1982. He remains in Canada as a landed immigrant. He worked as a labourer until he retired about ten years ago. He was married in India over 40 years ago and has four children. The appellant has no prior criminal record and was an active member in the local Sikh community. He offered letters on the sentencing hearing to the effect that he was well regarded and respected in his community as a hardworking person of high morals and good character.

[6] The appellant has accepted responsibility for the offence. However, he offered no explanation whatsoever for his conduct. At the sentencing hearing, he denied that he intended to harm his grandson and expressed his remorse.

Reasons of the Trial Judge

[7] The trial judge accepted the Crown's submission that the offence could properly be characterized as one of "stark horror" justifying the imposition of life imprisonment. The trial judge stated "[i]t is difficult to fathom a more callous disregard for human life . . .". He based this finding on the deliberate setting of the multiple fires, the breach of trust involved in the appellants' abandonment of Rajvir inside the burning home, the terrible injuries the child suffered and the complete lack of an explanation for the appellant's conduct. The trial judge recognized that in most "stark horror" cases"the violence, brutality or cruelty precedes or is contemporaneous with the conduct component of the external circumstances of the crime, rather than the consequences to the victim." However, in the end, he relied upon the horrific consequences upon Rajvir as the key component to his finding of stark horror [at paras. 72-73]:

In many crimes, like this one, the external circumstances of the offence, however, include both conduct, in this case causing damage by fire to property, and consequences, causing bodily harm to another person. And it is the consequences of the conduct that account for the more severe punishment. . . .

There seems no reason in principle, at least where the consequences of conduct are included in the external circumstances of a crime, to restrict "stark horror" to the conduct requirement, and ignore the consequences that often reflect the nature of that conduct. In other words"the stark horror of the crime itself" includes the stark horror associated with its consequences, as well as the conduct.

(Emphasis in original)

[8] The trial judge was plainly troubled by the lack of explanation and inferred some form of mental disorder. At one point in [page341] his reasons, he noted [at para. 26]: "There is no suggestion of any major mental illness or situational disorder as the root cause of his uncharacteristic behaviour" (emphasis in original). However, later on he found that the conduct was "consistent only with a mental condition that is badly out of whack" [para. 76] and that "[t]he only reasonable conclusion is that there is at work here a mind that is not whole, unhealthy, and untreated" [para. 81]. The trial judge observed that while expert evidence is often presented to show that the accused is a continuing danger to society to justify life imprisonment for "stark horror" cases, it is not always required.

Issues

[9] The appellant raised the following issues on appeal:

1. Did the trial judge err by imposing life imprisonment on the basis that the offence was one of "stark horror"?

2. Did the trial judge err with respect to the need for psychiatric evidence?

Analysis

1. Did the trial judge by imposing life imprisonment on the basis that the offence was one of "stark horror"?

[10] It is well established that a high degree of deference is to be accorded sentencing decisions by trial judges. Absent an error in principle or failure to consider a relevant factor, this court will not intervene unless the sentence is demonstrably unfit, clearly unreasonable, or represents a substantial and marked departure from sentences customarily imposed for similar offenders committing similar offences: R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, 105 C.C.C. (3d) 327; R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, 129 D.L.R. (4th) 657. The trial judge gave lengthy and carefully crafted reasons for judgment and this court is bound to accord a high degree of deference to the sentence he imposed. However, for the following reasons, it is my respectful view that the trial judge erred in principle by imposing the maximum sentence of life imprisonment and, because of that error in principle, we are required to intervene.

[11] In my view, the trial judge erred by placing undue emphasis upon the consequences of the offence and insufficient attention to the actual circumstances of the offence and the blameworthiness of the appellant. To be more precise, in my view, the trial judge erred by sentencing the appellant to life [page342] imprisonment primarily because of the horrific consequences to Rajvir. The appellant intentionally started the fire. However, on the basis of the charge to which he pleaded guilty, and on the facts upon which the Crown relied in the sentencing proceedings, he did not deliberately cause Rajvir to suffer his devastating injuries. Indeed, the defence position that he did not intend to harm Rajvir was not challenged at trial. The appellant pleaded guilty to an indictment alleging that he "unlawfully did intentionally or recklessly cause damage by fire to property . . . and did thereby cause bodily harm to Rajvir Klair". He did not plead guilty to attempted murder. The offence to which he pleaded guilty did not include the element of intentional infliction of bodily harm. On the facts admitted by the appellant and relied upon by the Crown, he was plainly guilty of manifest disregard for the safety of the victim, but he was neither charged with, nor did he admit to intentionally causing the horrific harm suffered by Rajvir.

[12] After the trial judge delivered his reasons, and indeed after the oral argument of this appeal, the Supreme Court of Canada released its decision in R. v. Cheddesingh, 2004 SCC 16, [2004] 1 S.C.R. 433, [2004] S.C.J. No. 15. We have received written submissions with respect to this judgment where McLachlin C.J.C. stated [at para. 1], for a unanimous court

. . . terms such as "stark horror""worst offence" and "worst offender" add nothing to the analysis and should be avoided. All relevant factors under the Criminal Code, R.S.C. 1985, c. C-46, must be considered. A maximum penalty of any kind will by its very nature be imposed only rarely (see A. Manson, Law of Sentencing (2001), at p. 106) and is only appropriate if the offence is of sufficient gravity and the offender displays sufficient blameworthiness.

[13] I will return to the facts of Cheddesingh below, but I note here that the Supreme Court affirmed the life sentence that had been imposed by the trial judge on the basis of the "stark horror" category.

[14] In the case at bar, the trial judge relied exclusively on the "stark horror" category to justify the life sentence and there was no suggestion that apart from the "stark horror" principle, there was any other basis to justify a life sentence. While the term "stark horror" must now be avoided as unhelpful, the term was used to delineate factors common to a particular type of case for which the maximum life sentence is appropriate. The trial judge based his decision upon those cases and it is still useful to consider them to gauge the gravity of the offence and the blameworthiness of the offender required to justify the maximum sentence of life imprisonment.

[15] While I do not suggest that there is a fixed or inflexible set of factors, cases of this kind that have been found to justify the [page343] imposition of the maximum sentence of life imprisonment (formerly the "stark horror" cases) have presented one or more of the following features:

-- cruelty, brutality, unusual violence

-- terrorizing and torturing victim over a period of time

-- intentional, prolonged, repeated violence against victim

-- acts needlessly repeated or lack of feeling suggesting sadistic intent to cause terror or even torture

-- intentional infliction of pain, fright, panic that is tantamount to torture solely for gratification or other perverse reason

-- cruelty and callousness not frequently encountered

-- deliberate infliction of brutal, disfiguring, life threatening injuries

[16] It is significant that Cheddesingh requires both an offence of "sufficient gravity" and an offender "who displays sufficient blameworthiness". The severe consequences to Rajvir were certainly very grave, but those severe consequences were not accompanied by conduct that rose to a level of blameworthiness sufficient to justify a sentence of life imprisonment. Counsel for the respondent was unable to point us to any case in which a life sentence has been imposed upon a first offender for unintended consequences, even where those consequences were caused recklessly. To do so would, in my view, amount to a significant and unwarranted shift in the law of sentencing and invite life sentences in a significant number of cases involving dire but unintended consequences and where the sentence could not be justified on the basis of the blameworthiness of the accused. As I do not consider the circumstances of the present case to warrant such a change, and as I do not consider it possible to justify a sentence of life imprisonment for this offender for this offence, I would allow the appeal, set aside the sentence of life imprisonment, and in its place substitute a substantial custodial sentence.

[17] The seminal judgment in this area is that of Martin J.A. in R. v. Horvath (1982), 1982 3838 (ON CA), 2 C.C.C. (3d) 196 (Ont. C.A.). The accused had subjected his female victim to a prolonged and sadistic attack. He gained access to her apartment on the pretext of wanting to rent it, then bound, gagged, choked and stabbed her before finally slitting her throat. Martin J.A. observed that there were [page344] two broad categories in which the maximum life sentence was available: first, offences of stark horror, and second, pattern-of-violent-behaviour cases. This must now be read in the light of Cheddesingh and the principle that as "sentencing is an inherently individualized process" that cannot be achieved on the basis of solely fixed or pre-determined categories: R. v. M. (C.A.), supra, at p. 567 S.C.R.; R. v. Varga (2001), 2001 8610 (ON CA), 159 C.C.C. (3d) 502, 88 C.R.R. (2d) 10 (Ont. C.A.) at p. 527 C.C.C.; R. v. McArthur, 2004 8759 (ON CA), [2004] O.J. No. 721, 182 C.C.C. (3d) 230 (C.A.).

[18] The appellant has certainly not demonstrated a pattern of violent behaviour. He has no prior convictions of any kind and there is nothing in the record, apart from the offence in question, to indicate that he has any propensity to violence. I will return below to the significance of the absence of psychiatric evidence, but I simply note here that none was presented to indicate that the appellant poses a risk to public safety because of some mental condition or disorder.

[19] To return to Horvath, Martin J.A. wrote that the extremity of the offence itself was sufficient to justify the life sentence. Cautioning that it was not "an exclusive definition" Martin J.A. stated, at p. 205 C.C.C., that "Mr. Justice Ritchie's graphic phrase 'the stark horror of the crime'" had been used to describe offences "accompanied by unusual features of brutality or cruelty" for which a life sentence could be appropriate. Martin J.A. added [at p. 207 C.C.C.]:

The cruelty and callousness which mark the conduct of the appellant are, fortunately, not frequently encountered, and apart altogether from the psychiatric evidence, clearly indicate a disturbed and dangerous personality.

[20] He concluded, at p. 207 C.C.C., that the offender's "utter lack of feeling for the victim is consistent only with an abnormal personality, and portends peril to others while he remains in his present state".

[21] Horvath has been followed in many cases, several of which I review below. The startling feature of these cases attracting the maximum penalty of life imprisonment has been the brutality and cruelty of the actions of the accused. Considered in light of the Cheddesingh decision and the dual requirements of an offence of sufficient gravity and an offender of sufficient blameworthiness, the facts of these cases continue to warrant the imposition of a life sentence. In each case, the actions of the accused are exceedingly brutal and cruel, rendering them "sufficiently grave" on their face. Moreover, in each case the accused intended these consequences, thereby becoming "sufficiently blameworthy" for them. In no case do the consequences alone, unaccompanied by brutal or [page345] cruel conduct intentionally inflicting the consequences, convert the offence to one for which a life sentence is appropriate.

[22] In R. v. Charlebois, [1987] O.J. No. 886, 22 O.A.C. 235 (C.A.), the accused entered the victim's apartment, grabbed her hair and repeatedly stabbed her in the face. He slit her throat from ear to ear, cutting her voice box. Her wounds were brutal, disfiguring and life threatening. Charlebois left the apartment, but returned. As the victim lay helpless, he stabbed her in the back. Charlebois then left the victim to drown in her own blood. The court found that "[i]t would be difficult to devise a scenario which could be worse" and imposed a life sentence.

[23] In R. v. Lieug, 1995 1393 (ON CA), [1995] O.J. No. 2424, 82 O.A.C. 317 (C.A.), the accused attended at the victim's place of employment with a hammer, a knife and a bottle of sulphuric acid. He struck the victim several times with the hammer. The victim tried to escape to the bathroom, at which point the victim's employer tried to intervene. Lieug threatened him with the knife and told him that he intended to kill the victim. He then knocked down the bathroom door and spread sulphuric acid across the victim's body, resulting in third degree burns. The trial judge noted the nature of the assault, its planning, gravity and intensity and noted the absence of remorse and found that that the victim would remain in danger if the appellant were ever freed. This court upheld the life sentence.

[24] Another leading decision is R. v. Mesgun (1997), 1997 623 (ON CA), 36 O.R. (3d) 739, 121 C.C.C. (3d) 439 (C.A.) [varg [1993] O.J. No. 952 (Prov. Div.)]. Mesgun coaxed his ex-fiancée into his car and asked her to return to the relationship. She refused. He began a savage assault with a knife. For a period of 30 minutes, Mesgun slashed and stabbed the victim in her face, neck, arms and wrists. He tried to strangle her and gouge out her eyes. When he thought she was dead, he punched her repeatedly in the face. When he realized she was still alive, he attempted to stab her again. The victim opened the car door and fell out. Mesgun drove away, leaving her to die on the street. The trial judge stated, at [para. 4]: "I am of the view that no case of attempted murder could exceed the brutality and cruelty of this case." This court agreed that Mesgun's intentional, prolonged and repeated stabbing of the victim, his attempt to gouge out her eyes, his attempt to strangle her lacerated neck and his abandonment of her on the road to die all exemplified unusual features of brutality justifying the imposition of life imprisonment.

[25] Finally, in Cheddesingh itself, the accused broke into two apartments before breaking into the victim's apartment in a senior citizen's residence. He announced his intention to rape [page346] the 76-year-old female occupant and then entered into a discussion about whether he would follow through. He told her that he had a razor and tried to suffocate her. He then sexually assaulted the victim, digitally penetrating her, performing cunnilingus and violently raping her. The victim suffered severe lacerations to her vagina, requiring a blood transfusion. She died one month later from cirrhosis associated with vaginal trauma. The trial judge categorized the offence as one of stark horror. He based his finding on Cheddesingh's torturous discussion of whether or not he would rape the victim; the brutal violation of the victim's fundamental rights of privacy and security; the victim's membership in a vulnerable class of persons; the fact that the offences continued over a period of two to three hours; and the fact that the offence debased the victim's life. The life sentence was upheld on appeal by this court ((2002), 2002 49362 (ON CA), 60 O.R. (3d) 721, 168 C.C.C. (3d) 310 (C.A.)) and, as I have noted, on appeal to the Supreme Court of Canada.

[26] In my view, the conduct of the appellant in the present case, while entirely deplorable, simply cannot be equated to the type of senseless brutality and cruelty found in Horvath, Cheddesingh and the other cases to which I have referred. In each of these cases, the justification for the imposition of the maximum penalty of life imprisonment was that severe and horrific harm had been deliberately inflicted upon the victim. In the present case, the appellant exposed his victim to the risk of similar harm, and for that he must be severely punished. However, I cannot agree that it would be justifiable to sentence him on the same basis as if he had deliberately and callously inflicted the harm.

[27] I now turn to two decisions, one from this court and the other from the Newfoundland Court of Appeal, refusing to impose life sentences. A comparison of the circumstances of the present case is, in my view, revealing. In both cases, life sentences were refused for crimes that, from the perspective of the blameworthiness of the offender, I would consider to be more shocking and horrific than the one at issue in this appeal.

[28] In R. v. Edwards (2001), 2001 24105 (ON CA), 54 O.R. (3d) 737, 155 C.C.C. (3d) 473 (C.A.), the appellant pleaded guilty to the attempted murder of his spouse. They were living separately. Edwards, the victim, their son, and two of their son's friends went for dinner. Later that evening, the victim went into the master bedroom. She turned around and Edwards grabbed her neck, called her a "fucking bitch", and poked at her eyes. Edwards choked the victim until she became unconscious. When she regained consciousness, she was bleeding. One of her eyeballs was hanging out of its [page347] socket. Rosenberg J.A. held that the facts of the case did not bring it within the parameters of stark horror and that in the absence of psychiatric evidence demonstrating that the appellant suffered "from a mental disorder that shows he or she represents a continuing danger to the public and that there is little likelihood of successful treatment" [para. 69], the imposition of life imprisonment could not be justified.

[29] In R. v. Brown (2001), 2001 NFCA 8, 152 C.C.C. (3d) 26 (Nfld. C.A.), the accused and the victim had a three-year relationship and a newborn daughter. They separated prior to the birth of their child. Brown was angry that the victim would not allow him to see the child. He broke into the victim's residence at night. Brown stabbed and hit her, inflicting over 20 stab wounds to her body and extensive trauma to her face and head. The victim's injuries were serious and extremely painful. Brown showed no emotion in his statements to the police. Despite this horrible attack, the Newfoundland Court of Appeal concluded that the trial judge erred in imposing a life sentence and substituted a sentence of 14 years. Steele J.A. noted specifically at p. 47 C.C.C. that the case lacked "an intent or attempt to inflict pain, fright or panic -- suffering tantamount to torture -- solely for his or her gratification or for some other perverse reason".

[30] In my view, these comments are equally applicable to the facts of the present case. Simply put, the offence at issue here does not exhibit the important common features of the cases in which the maximum penalty of life imprisonment has been imposed under the now-defunct "stark horror" category: there was no terrorizing or torturing over a period of time; there was no prolonged or repeated violence against the victim; there were no needlessly repeated acts suggesting sadistic intent; and there was no indication that the arson was for the purpose of gratification or any other perverse purpose. The circumstances of this offence reveal shocking consequences for the victim. However, as the appellant did not deliberately cause those consequences, the maximum penalty of life imprisonment should not have been imposed.

2. Did the trial judge err with respect to the need for psychiatric evidence?

[31] While the appellant expressed remorse for the harm Rajvir suffered, he offered no explanation for his conduct and the lack of any explanation plainly troubled the trial judge. As I have already noted, the trial judge found that the appellant's conduct was "consistent only with a mental condition that is badly out of whack" [page348] and that "the only reasonable conclusion is that there is at work here a mind that is not whole, unhealthy, and untreated".

[32] As the passages I have quoted above from Horvath, Charlebois and Mesgun indicate, psychiatric evidence is not always required to sustain a sentence of life imprisonment in cases of this type. In some cases, the offence is so bizarre and shocking that it is quite appropriate to infer from the circumstances of the offence itself that the appellant poses an ongoing danger to the public. On the other hand, as in Edwards, where the circumstances of the offence are not sufficient, psychiatric evidence will be required.

[33] While the trial judge inferred that the appellant must suffer a form of mental disorder, there is no explicit finding in his lengthy and carefully crafted reasons of the nature of that disorder or that it meant the appellant posed a continuing serious threat to public safety. In the end, I do not read the reasons of the trial judge on this point as advancing the case for a life sentence on the basis of the mental disorder from which he assumed the appellant suffered. If I am wrong and the trial judge indeed did consider that the mental disorder he attributed to the appellant rendered him sufficiently dangerous to tip the balance in favour of a sentence of life imprisonment, then I respectfully say that there is no evidence in this case capable of supporting that inference. As I have already explained, the conduct of the appellant falls well short of the shocking brutality exhibited in Horvath, Charlebois and Mesgun and it follows that the inference of mental disorder properly drawn in those cases was not available on the facts of this case.

Disposition

[34] Accordingly I would grant leave to appeal, allow the appeal and set aside the sentence of life imprisonment.

[35] The Criminal Code, R.S.C. 1985, c. C-46, s. 718, states that "[t]he fundamental purpose of sentencing is to contribute . . . to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions . . ." and then sets out a number of sentencing objectives. The objectives pertinent to the present case are denunciation, deterrence, separating the offender from society, rehabilitation and the promotion of a sense of responsibility in the offender and acknowledgement of the harm done to the victim and to the community. Section 718.1 provides that "[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." [page349]

[36] This was a serious crime with disastrous consequences and the objectives of denunciation, deterrence, separating the offender from society and acknowledging the harm done to the victim and to society clearly call for a significant penitentiary sentence. The appellant intentionally set the fires and he exposed his victim to a startling risk of physical harm and death. As noted by the trial judge, the appellant's breach of trust as the victim's grandfather and babysitter is an aggravating factor. However, as stated by Prof. Manson in the passage from The Law of Sentencing (Toronto: Irwin Law, 2001), referred to in Cheddesingh, supra: ". . . the imposition of a maximum sentence is, and ought to be, rare. Few situations arise where a lesser term will not adequately protect society and also reflect an appropriate degree of denunciation."

[37] Factors weighing in the appellant's favour are his age and previously unblemished record, his plea of guilty and his acceptance of responsibility for the harm he has caused.

[38] In my view, a fit sentence for this offender and this offence is 12 years. The appellant is entitled to credit for two years of pre-trial custody. At trial, the Crown argued against the usual two-for-one credit as the appellant had delayed the proceedings while he tried to arrange financial restitution for the loss of his son's home. As the trial judge imposed a life sentence, he did not deal with this submission. I agree with the appellant's submission that in the circumstances of this case, he should not be denied the usual credit for pre-trial custody. Accordingly, the sentence I would impose after taking pre-trial custody into account is eight years.

[39] FELDMAN J.A. (dissenting): -- I have read the reasons for judgment of Sharpe J.A., and find that I am unable to agree with his finding that the determination of the appropriate sentence by Watt J. must be set aside by this court. In my view, Watt J. made no error in law or principle and his judgment deserves the deference of this court in accordance with R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, 129 D.L.R. (4th) 657.

[40] The sentence of life in prison was imposed following a fairly brief sentencing hearing where the appellant pled guilty to the offence of intentionally or recklessly causing damage by fire to property, thereby causing bodily harm to Rajvir Klair, his four-year-old grandson (s. 433(b) of the Criminal Code). Section 433 provides:

433. Every person who intentionally or recklessly causes damage by fire or explosion to property, whether or not that person owns the property, is guilty of an indictable offence and liable to imprisonment for life where [page350]

(a) the person knows that or is reckless with respect to whether the property is inhabited or occupied; or

(b) the fire or explosion causes bodily harm to another person.

[41] Following the reading of the facts and the plea, counsel for the Crown and defence, both very experienced, each made their submissions with respect to sentence. No pre-sentence report was prepared or filed, nor was any psychiatric evidence presented. In his submissions, Crown counsel noted that he was not in a position to compel the accused to submit to a psychiatric evaluation for the purpose of sentencing. The only evidence provided on the sentencing was one character reference letter from a member of the community. The appellant's counsel stated in submissions that the appellant did not intend to harm his grandson. However, when the appellant was asked if he wanted to say anything, he said only: "I'm very sorry. I don't think I want to say anything more."

[42] Crown counsel at trial made a strong submission for a sentence of life in prison on the basis that the offence was one of stark horror. In the alternative, if a definite sentence were to be imposed, he suggested a term of ten years. Appellant's counsel at trial submitted that a fit sentence was two years less a day in reformatory.

[43] Watt J. reserved his decision for two weeks. On the day set for sentence, the Crown filed a victim impact statement from the appellant's son, the father of the victim, which described the horrific consequences of the fire to their beloved child, as well as the devastating effect on the life of the parents, including their financial fears for the future care of the child.

[44] Watt J. then gave his reasons for imposing a sentence of life in prison. His reasons are a model, well organized and well articulated. They are 23 pages in length and fully describe the circumstances of the offence including the effects on the victim, the circumstances of the offender, the positions of the parties including a complete précis of each counsel's submissions, and an analysis of the principles of sentencing and their application to this case.

[45] In considering whether to impose a life sentence, Watt J. had to determine whether this case was one that could be categorized as an offence of "stark horror", in accordance with the then current jurisprudence. He focused on the need for unusual brutality, violence and cruelty in the commission of the offence as the basis for a finding of stark horror. However, he also concluded that where, as with s. 433, the Criminal Code charge provides for life in prison because of the consequences to the victim, the court [page351] may consider the consequences to the victim as part of its stark horror analysis. Watt J. put it this way at paras. 72 and 73 of his reasons:

It is fair to say that in most of the cases where reliance has been placed on the "stark horror" branch of Hill [v. The Queen (No. 2), 1975 38 (SCC), [1977] 1 S.C.R. 827] to justify a sentence of life imprisonment, the violence, brutality or cruelty precedes or is contemporaneous with the conduct component of the external circumstances of the crime, rather than the consequences to the victim. In many crimes, like this one, the external circumstances of the offence, however, include both conduct, in this case causing damage by fire to property, and consequences, causing bodily harm to another person. And it is the consequences of the conduct that account for the more severe punishment. Compare, for example, sections 433 and 434 of the Criminal Code.19

There seems no reason in principle, at least where the consequences of conduct are included in the external circumstances of a crime, to restrict "stark horror" to the conduct requirement, and ignore the consequences that often reflect the nature of that conduct. In other words"the stark horror of the crime itself" includes the stark horror associated with its consequences, as well as the conduct.

[46] My colleague considers it an error for the trial judge to have based the sentence imposed primarily on the horrific consequences of the arson on the little boy, rather than on the blameworthiness of the appellant. He also expresses the concern that this is a shift that will lead to a large number of life sentences where the conduct of the accused is not sufficiently blameworthy to merit such a sentence. With respect, I disagree both with my colleague's view of the trial judge's analysis and with his concern. First, the trial judge limits the circumstances when the consequences may be a factor to a charge where the maximum penalty is increased to reflect the effect of the criminal conduct on a victim, such as in s. 433 of the Code. Second, although the trial judge includes the consequences to the victim as part of his stark horror analysis, his primary focus is on the blameworthiness of the conduct of the appellant. [page352]

[47] Watt J. explained in the above-quoted paragraphs why he concluded that on this particular charge (s. 433), where the consequences of the arson expand the scope of the maximum sentence to life in prison, those consequences can also be considered in the stark horror analysis for the purpose of imposing the appropriate sentence. This limited application of the consequences of the crime answers the "floodgates" concern of my colleague. Then, in making his ultimate finding that this was a case of stark horror, while the trial judge considered the unspeakable effects of the crime on the little boy, he emphasized the blameworthy conduct of the appellant, its brutality and cruelty, at paras. 79-82:

For my part, I cannot imagine much conduct that is any more starkly horrific than deliberately setting three fires in a residence, with full knowledge that the floor where the fires were set was occupied by a four-year-old child, a member of a vulnerable class of persons and one to whom the fire-setter stood in loco parentis. And not just setting fires, but using an accelerant to speed up the ignition and burning process. If he knew the tenants were home, he put their lives at risk as well. And if he didn't, he was most fortunate to escape a conviction for murder.

To underscore his brutality, he simply walked away, deliberately shutting his eyes to whether his grandson burned to death, suffocated, or both.

There is no motive for this crime. And there is no explanation. The only reasonable conclusion is that there is at work here a mind that is not whole, unhealthy, and untreated.

And the consequences? A little boy is assigned a place in a freakish hell. This is stark horror, at least according to my reckoning.

[48] In my view, the trial judge made no error in his consideration of the stark horror analysis. It is clear that he focused on the blameworthiness of the appellant's conduct in making the finding of stark horror and imposing the maximum sentence. Of course, after the recent Supreme Court decision in R. v. Cheddesingh, 2004 SCC 16, [2004] S.C.J. No. 15, where the court stated that terms such as "stark horror""worst offender" and "worst offence" should be avoided, the cogency of the stark horror analysis and the applicability of the case law on which it was based are less important than the court's consideration of all the relevant factors in the Code, and the court's adherence to the principle that: "A maximum penalty of any kind will by its very nature be imposed only rarely (see A. Manson, Law of Sentencing (2001), at p. 106) and is only appropriate if the offence is of sufficient gravity and the offender displays sufficient blameworthiness. As is always the case with sentencing, the inquiry must proceed on a case-by- case basis" (para. 1). [page353]

[49] Watt J. fully considered all of the Code factors. He was also clearly satisfied that the appellant's deliberate conduct, knowing what he was causing to happen to his helpless grandson, was significantly blameworthy conduct that warranted the maximum penalty. Sharpe J.A. minimizes the blameworthiness of the appellant's conduct on the basis that, in accordance with his plea to the offence under s. 433, he did not intentionally inflict harm on the child. However, Watt J. was entitled to view the conduct of the appellant as indicative of the maximum blameworthiness for this offence. While babysitting the four- year old child, the appellant deliberately set the fire with gasoline in three places plus he left the stove on and walked out of the house when the child was burning,20 with no thought of saving the child. There was no suggestion of intoxication or any other factor that would negate the ordinary inference that a person intends the natural consequences of his actions. His inquiry on his return about whether his grandson had survived, demonstrated that he was aware of what could have happened to the child. Watt J. found, as quoted above, that the appellant "deliberately shut[] his eyes to whether his grandson burned to death, suffocated, or both".

[50] Watt J. also considered the fact that there was no expert evidence in this case that the appellant represented a continuing danger, as there has been in many of the stark horror/life sentence cases. He concluded that the circumstances of the offence indicated, without the need for expert testimony, that the appellant has a personality disturbance or other mental disorder.

[51] He distinguished on two bases this court's decision in R. v. Edwards (2001), 2001 24105 (ON CA), 54 O.R. (3d) 737, 155 C.C.C. (3d) 473 (C.A.) at para. 70 where the court suggested that the absence of expert testimony about the prognosis for successful rehabilitation during a fixed term "told against" the imposition of a life sentence on the basis of stark horror. He noted first, that in that case, Crown counsel on appeal did not press the stark horror argument; second, the court did not say that there must always be expert evidence on the accused's prognosis for ongoing danger if there is only a fixed term sentence, but only that there will often be such evidence. Watt J. commented that expert evidence cannot be a requirement of a finding of stark horror, because an accused cannot be compelled to participate in a psychiatric evaluation, and [page354] the opinion of a psychiatrist without such an evaluation may add nothing to the court's assessment.

[52] Based on the circumstances of the crime itself, together with the appellant's failure to give any explanation for his actions, Watt J. was satisfied, without expert evidence, that the appellant did have some mental problem that required treatment. Without this treatment, the court could not be assured that he did not represent an ongoing danger to the public or to a segment of it.

[53] My colleague disputes the trial judge's inference of mental disorder. In my view, the trial judge was entitled to draw the inference on the bases that he described. The drawing of inferences is the province of the trial judge: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, 211 D.L.R. (4th) 577. I also agree with Watt J. that in circumstances where the accused elects not to participate in a psychiatric assessment, it would be problematic if the court were precluded from drawing inferences from the circumstances that would allow it to impose the appropriate sentence.

Conclusion

[54] This was a most difficult sentencing decision. The horrific aspects of the crime were not limited to its nature as a deliberate arson. The relationship of the young boy and his grandfather had previously been one of love and trust. The father of the boy was betrayed by his own father. The actions of the appellant were completely unexplained, leaving all involved with continuing unease, as well as despair. The ongoing pain and suffering of the boy is unspeakable. The emotional and financial hardship on the parents is unfathomable. On the other hand, the appellant is an elderly man with no criminal record and a previously good reputation in the community.

[55] The experienced and learned trial judge gave reasons that are lucid and deal with each issue, balancing all of the statutory factors in the context of the relevant case law and the factual circumstances. It is clear that he recognized that the penalty of life imprisonment is to be imposed only rarely. In my view, he made no errors of law or principle and his decision that this was one of those rare cases deserves the deference of this court.

Appeal allowed.