Court File and Parties

Court File No.: St. Catharines - 2111-998-12-WR0059 Date: 2012-12-03 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Richard Coulthurst, Justin Lee, Michael Theberge, Randy Weaver

Before: Justice D.A. Harris

Heard on: July 17, 2012; August 23, 2012; October 23, 2012

Reasons for Sentence: December 3, 2012

Counsel:

• A. Brown, for the Crown
• J. Bothwell, for Richard Coulthurst
• M. Peterson, for Justin Lee
• M. DelGobbo, for Michael Theberge
• Randy Weaver, in person

Reasons for Sentence

HARRIS J.:

Charges

[1] All four accused were charged that on or about August 22, 2010 at the City of Port Colborne, they did intentionally or recklessly cause damage by fire to real property situated at 3499 Snider Road knowing that or being reckless with respect to whether the said property was inhabited or occupied contrary to s. 433(a) of the Criminal Code.

[2] Mr. Weaver was also charged that at the same time and place he did with intent to commit an indictable offence have his face disguised by means of wearing a ski mask over his face contrary to s. 351(2) of the Criminal Code.

[3] Finally, Mr. Weaver was also charged that at the same time and place he failed to comply with the term of a probation order requiring him to keep the peace and be of good behaviour contrary to s. 733.1(1) of the Criminal Code.

[4] A preliminary hearing was held with respect to these charges. At the end of the preliminary hearing, I indicated that I intended to order that all of the accused stand trial in the Superior Court of Justice. Before making that order however, I invited all parties to participate in an exit pre-trial. Everyone agreed and a pre-trial took place over a number of days. This culminated in the four accused entering guilty pleas to the above charges.

[5] In addition, Mr. Theberge entered a guilty plea to the charge that between February 11, 2011 and March 31, 2011, he attempted to obstruct justice by instructing Ashley Lewis to not provide evidence at court.

[6] Finally, Mr. Lee entered a guilty plea to the charge that on September 13, 2010, he broke and entered a business and committed theft. Crown counsel elected to proceed summarily with respect to this offence.

[7] All four men are before me today to be sentenced with respect to all of these offences.

Application by Mr. Weaver to Strike His Plea

[8] During the sentencing hearing, Mr. Weaver called a number of witnesses to testify regarding conditions in the Niagara Detention Centre and also made submissions as to what would be the appropriate sentence here. At one point, he expressed dissatisfaction with the process and indicated that he wished to strike his pleas. I put the matter over to allow him to argue such an application. Ultimately, after hearing his argument, I dismissed the application, indicating that I would provide written reasons later.

[9] I intend to deal with that issue here before proceeding with my reasons for sentence.

[10] In R. v. Dallaire, [2011] O.J. No. 1722, the Ontario Court of Appeal stated that the onus is on a person seeking to set aside a guilty plea to show that the plea was not informed, voluntary or unequivocal.

[11] In R. v. Easterbrook, [2005] O.J. No. 1486, the Court of Appeal said at para. 5 that the standard is that of a balance of probabilities.

[12] In R. v. Moser, [2002] O.J. No. 552 (S.C.J.), Hill J. elaborated on the requirements for a valid plea at paras. 31 through 34 where he made the following statements:

"To be valid, the plea must be unequivocal - the circumstances should not be such that the plea was unintended or confusing, qualified, modified, or uncertain in terms of the accused's acknowledgement of the essential legal elements of the crime charged".

"A plea of guilty must be voluntary in the sense that the plea is a conscious volitional decision of the accused to plead guilty for those reasons which he or she regards as appropriate".

"Finally, a guilty plea's validity depends on the plea being informed".

[13] Mr. Weaver is representing himself. He does not have the benefit of receiving advice from his own lawyer. On the other hand, he has been a frequent visitor to criminal courtrooms. He has entered guilty pleas in the past. It was clear from watching him question witnesses and make submissions during the preliminary hearing that while Mr. Weaver is no lawyer, he understands the court process.

[14] Mr. Weaver knew what Crown counsel was alleging. He also knew what Crown counsel was asking in the way of punishment. This had all been canvassed at some length before the pleas were entered.

[15] Mr. Weaver knew that Crown counsel was prepared to accept guilty pleas from the other three accused whether Mr. Weaver did so too or not. At one point Mr. Weaver had indicated that he did not wish to enter a plea. I then indicated that I would commit him for trial in the Superior Court after the others were dealt with. We then proceeded to arraign Mr. Coulthurst, Mr. Lee and Mr. Theberge. At that point Mr. Weaver indicated that he had changed his mind again and that he too wished to be arraigned and to enter his plea along with the others.

[16] I conducted a plea comprehension inquiry in court. It went as follows:

[THE COURT:] Now, Mr. Weaver, with respect to all of these charges. First of all you understand that you have the right to retain and instruct counsel to represent you; right?

MR. WEAVER: Yes.

THE COURT: You and I are both well aware of the fact that you have attempted to do so and as a result of long standing disagreement now between you and Legal Aid Ontario you have not been able to retain counsel; is that correct?

MR. WEAVER: That is correct, sir.

THE COURT: Do I understand that you are prepared to proceed today in the absence of counsel?

MR. WEAVER: Yes, I am, sir.

THE COURT: Okay. You heard what I said to the other gentlemen about the process that we've gone through already and again you had the same election. Do I understand that you wish to re-elect to be tried in the Ontario Court of Justice? In other words, before me today with respect to all three charges; is that correct?

MR. WEAVER: That is correct, sir.

THE COURT: I will endorse then that there is a re-election by all four accused. Now, Mr. Weaver, I just want to go through a few things with you. You understand that with respect to all of these offences you have the right to plead not guilty and to require the Crown to prove the case against you beyond a reasonable doubt; do you understand that?

MR. WEAVER: Yes, I do.

THE COURT: You understand that by entering a guilty plea you are admitting the essential elements of the offence and giving up the right to trial then; do you understand that?

MR. WEAVER: Yes.

THE COURT: You know that there is not going to be a joint submission. You know what the position of the Crown is with respect to sentence; correct?

MR. WEAVER: That's correct, sir.

THE COURT: You are aware of the fact that I am the one who has the final say as to what the sentence is in this case; do you understand that?

MR. WEAVER: Yes.

THE COURT: And that I will certainly hear from both Mr. Brown and I will hear from you, but in the end I will be the one who decides what sentence is appropriate for you; do you understand all that?

MR. WEAVER: Yes, sir.

[17] This was supplemented by the following comments by Crown counsel, myself and Mr. Weaver:

MR. BROWN: I'm sorry, Your Honour. Before the plea is received, I have as you know, prepared a volume of materials which will form the basis of the facts that are being admitted to. I appreciate the Court has gone through the exercise of 606 and I will be reading into the record the summary of that. Mr. Weaver, along with counsel, have been provided with the summary of that. So that there is clarity, infinite clarity with respect to the facts that are being admitted to, counsel have reviewed the Agreed Statement of Fact, Mr. Weaver has been provided with the same Statement of Fact and counsel have had their client acknowledge same in writing with respect to the summary of fact that will be filed with the Court. Mr. Weaver, given his recent change of position this morning has not yet signed any such acknowledgement. I put that on the record.

THE COURT: You've seen the facts, Mr. Weaver?

MR. WEAVER: Yes, I have, sir.

THE COURT: And I gather that you were agreeing to those facts for the purpose of the plea?

MR. WEAVER: Sir, I am just going to let the Courts know that I have no recognition….

THE COURT: Are you accepting that those facts are correct?

MR. WEAVER: I was too drunk and to….

THE COURT: I am not going to be asking you what you know or what you don't know. I am going to be asking you whether you agree that the Crown can prove these facts against you beyond a reasonable doubt and whether you are accepting, for purposes of a plea, that they happened. I just went through the fact that you will be admitting the essential elements of the offence if you are entering the plea. If not don't bother. Do you understand that?

MR. WEAVER: Yes.

THE COURT: Are you going to be admitting the facts as put forward by the Crown?

MR. WEAVER: Yes.

THE COURT: With respect to count one, you understand that charge?

MR. WEAVER: Yes.

THE COURT: How do you plead, guilty or not guilty?

MR. WEAVER: Guilty.

THE COURT: With respect to count two, do you understand that charge?

MR. WEAVER: Yes, sir.

THE COURT: How do you plead, guilty or not guilty?

MR. WEAVER: Guilty.

THE COURT: With respect to count three, do you understand that charge?

MR. WEAVER: Yes.

THE COURT: How do you plead, guilty or not guilty?

MR. WEAVER: Guilty.

[18] While Mr. Weaver stated in his application that he did not agree with the facts as alleged, it quickly became clear that while he might be quibbling over certain minor details, he was not denying the substance of the charges. On the contrary, he began to apologize to the victim in this case in open court during the course of the application to strike the plea.

[19] I note also the obvious, that I heard the evidence during the preliminary hearing. The case against Mr. Weaver was a strong one. He can be seen on videotape hurling Molotov cocktails against the residence of the victim. He is masked at the time but his identity was amply established by means of his DNA and his statements to others.

[20] Despite Mr. Weaver's protestations to the contrary, there was no doubt in my mind that his pleas had been informed, unequivocal and voluntary. Had I experienced any such doubt, I would have allowed his application. In the circumstances however there was absolutely no valid reason for me to strike those pleas and I declined to do so.

Sentencing

[21] I have been presented with joint submissions with respect to the appropriate sentences for Mr. Coulthurst and Mr. Theberge. Counsel for Mr. Lee has urged me to impose a sentence somewhat outside the range proposed by Crown counsel. The position taken by Mr. Weaver is substantially different from that of Crown counsel.

[22] I propose to proceed in the following fashion.

[23] First I will review the facts of the case.

[24] Then I will review the law in general.

[25] Finally, I will address the personal backgrounds of each accused, their respective positions and then I will determine the appropriate sentences. In the case of Mr. Weaver this will include an assessment of the appropriate credit he should be given for pre-sentence custody.

The Facts

[26] The victim in this matter is Ian Thomson, who resides at 3499 Snider Road in Port Colborne. The home is located in a semi-rural area in the Niagara Peninsula. Ian Thomson resides alone. There has been a documented history of disputes with his neighbour which have from time to time involved the attendance of the Niagara Regional Police. As a result, Mr. Thomson installed approximately 12 video surveillance cameras on his property which cameras are also equipped with audio recording ability. These cameras captured the incident which followed. The evidence suggests that none of the four accused persons knew the victim directly.

[27] Sometime during the months of July or August 2010, Mr. Weaver was approached by Richard Coulthurst to do a job involving an alleged pedophile in the City of Port Colborne.

[28] The alleged pedophile was the victim in this matter, Ian Thomson of 3499 Snider Road, Port Colborne. There is no basis for the allegation that Ian Thomson is a pedophile.

[29] Mr. Weaver was provided information regarding Mr. Thomson among which included that he had taken photographs of Mr. Thomson's neighbour's teenage daughter.

[30] Documents including police reports and a map showing the location of Mr. Thomson's address were provided to Mr. Weaver by Mr. Coulthurst.

[31] Mr. Weaver understood that the job was to intimidate Mr. Thomson so that he would move. The method to accomplish this was not immediately determined. Ultimately Mr. Weaver determined the residence was to be attacked with Molotov cocktails.

[32] Mr. Coulthurst offered Mr. Weaver monetary compensation for completing this job. Evidence suggests that up to $5,000 was to be paid for "the job" with half up front and half upon completion.

[33] Mr. Weaver approached Justin Lee and Michael Theberge to assist in the completion of this job. Justin Lee and Michael Theberge were associates of Mr. Coulthurst and Mr. Weaver. Mr. Lee and Mr. Theberge often worked for Mr. Weaver and were involved in the drug subculture. Mr. Theberge is the nephew of Mr. Coulthurst. Over a period of several weeks, several discussions were had about doing "the job". Mr. Lee and Mr. Theberge agreed to participate.

[34] Approximately three weeks prior to this incident, Michael Theberge drove Justin Lee and Randy Weaver in his red Saturn to the area of 3499 Snider Road, Port Colborne. At this time, Mr. Weaver pointed out Mr. Thomson's residence to Mr. Lee and Mr. Theberge.

[35] On Sunday, August 22, 2010 in the early morning hours, Justin Lee and Michael Theberge attended 25 Saturn Drive, Unit 250, Port Colborne. Mr. Lee and Mr. Theberge were provided a hockey bag containing clothes belonging to Randy Weaver by Ashley Lewis, the then girlfriend of Mr. Weaver. Some of these clothes were worn by Mr. Weaver in the arson that followed.

[36] On Sunday, August 22, 2010 in the early morning hours, Mr. Lee, Mr. Theberge and Mr. Weaver met at Richard Coulthurst's residence, located at 38 Centennial Drive in the City of Welland.

[37] While at Mr. Coulthurst's residence, Mr. Lee and Mr. Theberge were directed to wash out beer bottles in the kitchen sink. Mr. Lee subsequently washed several Brava brand beer bottles. This was done in an attempt to eliminate any forensic evidence on the bottles.

[38] On Sunday, August 22, 2010 in the early morning hours, Michael Theberge drove Justin Lee and Randy Weaver in his red Saturn to the area of Forkes and Snider Road in the City of Port Colborne.

[39] Mr. Theberge drove to the far west end of Forkes Road and parked his vehicle in a turnaround area at the end of the road. At this location, Mr. Lee and Mr. Weaver filled 12 Brava brand beer bottles with gasoline and inserted pieces of bed sheets into the mouths of the bottles, making 12 Molotov cocktails.

[40] Mr. Theberge then drove southbound on Snider Road, passing by the victim's address at 3499 Snider Road, Port Colborne.

[41] The video and audio surveillance cameras document what took place. Mr. Theberge turned his vehicle around at the cul-de-sac at the south end of Snider Road. Mr. Theberge subsequently drove northbound on Snider Road passing by the Thomson residence for a second time.

[42] Mr. Theberge subsequently parked his red Saturn just north of the victim's residence along the east side of the roadway, beside a bush area.

[43] Mr. Lee, Mr. Theberge and Mr. Weaver exited the vehicle at approximately 6:37 a.m. and approached 3499 Snider Road, Port Colborne on foot.

[44] Mr. Weaver walked eastbound down Mr. Thomson's driveway with Mr. Lee and Mr. Theberge following behind. Mr. Theberge remained at the end of the driveway near the road.

[45] Mr. Lee carried a cardboard bottle carrier containing six Brava brand beer bottles, Molotov cocktails.

[46] Mr. Weaver carried another cardboard bottle carrier also containing six Brava brand beer bottles, Molotov cocktails.

[47] Mr. Weaver's face was initially uncovered, but later covered with a black ski mask.

[48] Mr. Weaver directed Mr. Lee to the north of the driveway, while Mr. Theberge remained in the general area of the top of the driveway located at Snider Road.

[49] At this time the victim of this incident, Ian Thomson was asleep in his bedroom.

[50] Mr. Weaver attended the backyard of 3499 Snider Road and lit one of the Molotov cocktails that he had been carrying and threw it at the rear of the residence, striking the siding between the bathroom window and the master bedroom window. The bedroom window was open. Some damage was done to the siding, deck and a nearby hot tub.

[51] Mr. Thomson was awakened by the explosion from the Molotov cocktail and came to his bedroom window which overlooked the backyard of the home.

[52] Mr. Weaver began to yell at Mr. Thomson, calling him a "fucking goof", "you ready to die" and stated that "you better fucking move or you're gonna fucking die eh".

[53] All parties knew or were reckless as to whether the residence was occupied.

[54] Mr. Weaver attempted to retrieve his lighter to light a second Molotov cocktail but was unable to find his lighter, which he had dropped. Mr. Weaver called out to Mr. Theberge for a lighter however Mr. Theberge did not provide Mr. Weaver with one as requested.

[55] At this time, Mr. Lee was positioned at the north-east corner of the home and threw a Molotov cocktail into the dog run at the north-west corner of the home. The dog run contained two dogs. The Molotov cocktail singed one of Mr. Thomson's Huskies and frightened both dogs.

[56] Mr. Lee threw a second Molotov cocktail which struck a jut out along the north wall of the home. Mr. Lee subsequently lit all four remaining Molotov cocktails at once in the carry case. These bottles burned in the case on the ground and were not thrown.

[57] Mr. Weaver left the backyard of 3499 Snider Road and approached Mr. Lee at the north-west corner where Mr. Weaver was able to light the second of his Molotov cocktails. Mr. Weaver was able to obtain a light from Mr. Lee.

[58] Mr. Weaver then proceeded to the front of the home where he threw a lit Molotov cocktail. This Molotov cocktail struck the kitchen window of the home and resulted in the window breaking.

[59] The kitchen curtains were scorched and melted as well as the siding and frame of the window. Three bags of charcoal located directly under this window also caught on fire as did the wooden deck.

[60] Mr. Thomson exited the front door of his residence with a handgun and discharged three rounds, resulting in Mr. Lee, Mr. Theberge and Mr. Weaver fleeing leaving the remaining Molotov cocktail bottles at the scene. Mr. Thomson proceeded to extinguish the small fire on his front deck with a garden hose and he called 911. Police and fire personnel attended. No physical injuries were suffered by Mr. Thomson.

[61] Mr. Theberge drove Mr. Lee and Mr. Weaver back to Mr. Coulthurst's residence at 38 Centennial Drive, Welland.

[62] Mr. Theberge, Mr. Lee and Mr. Weaver informed Mr. Coulthurst as to the events at the victim's residence. They then celebrated. Mr. Lee and Mr. Theberge were to get a nominal amount of money for their role in the arson.

[63] The damage to Mr. Thomson's residence was approximately $10,000.

[64] The facts with respect to Mr. Theberge's attempt to obstruct justice are that Mr. Theberge was released on a recognizance of bail with respect to the arson charge. One term of his recognizance prohibited any communication with Ashley Lewis, a potential witness in the case. Despite this, Mr. Theberge spoke to her and told her she needed to keep her mouth shut about the arson and suggested that certain males would find out if she did not.

[65] The facts with respect to the break and enter charge against Mr. Lee are as follows. On September 13, 2010, Mr. Lee and three others went to the LCBO in Welland at 4:39 a.m. They used a brick to smash the door, entered and stole a quantity of whiskey. Niagara Regional Police officers stopped their motor vehicle nearby and recovered eight 1.75 litre bottles of whiskey.

The Law

[66] The fundamental purpose of sentencing as expressed in s. 718 of the Criminal Code is to contribute to respect for the law and 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.

[67] 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.

[68] The punishment should fit the crime, but there is no single fit sentence for any particular offence. The determination of an appropriate sentence involves attempting to apply a blend of the above principles, including specific and general deterrence, denunciation and rehabilitation.

[69] It goes without saying that arson is a very serious offence.

[70] This is reflected, amongst other ways, in the maximum sentence of imprisonment for life.

[71] Arson is always serious, in part because there is always the potential for someone to be injured. As stated at para. 9 in R. v. Mirzakhalili, 2009 ONCA 905, [2009] O.J. No. 5464 (Ont. C.A.), "it needs to be underlined that arson always jeopardizes the lives of fire fighters and other emergency personnel who respond to fires".

[72] Arson is even more serious when it involves a residence, especially when, as here, the offenders believe that someone is present in the residence.

[73] In R. v. J.S., [2006] O.J. No. 2654 (Ont. C.A.), Blair J.A. stated at para. 34 that home invasions "are very serious because they represent a violation of the sanctity of the home and of the sense of security people feel when in their homes - highly cherished values in our society".

[74] They are also serious because they can put residents at risk. That was certainly the case here. The offenders here may not have intended to injure Mr. Thomson (and I am proceeding on that assumption) and they did not cause injury to Mr. Thomson, but fire is an unpredictable thing and they had no way of knowing for certain that Mr. Thomson would not be injured or even killed in the fire that they started.

[75] So common sense alone tells us that it is a serious offence when someone firebombs a residential home while the occupant is thought to be present and asleep.

[76] This is further reinforced by s. 348.1 of the Criminal Code which provides:

348.1 If a person is convicted of an offence under section 98 or 98.1, subsection 279(2) or section 343, 346 or 348 in relation to a dwelling-house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling-house was occupied at the time of the commission of the offence and that the person, in committing the offence,

(a) knew that or was reckless as to whether the dwelling-house was occupied; and

(b) used violence or threats of violence to a person or property.

[77] Arson is not one of the offences enumerated in this section but I am still prepared to draw from it the conclusion that it is an aggravating circumstance for someone to try to burn down a house which they know to be occupied.

[78] Further aggravating factors are that this was a crime for hire. It was planned over time and even involved scouting out the area ahead of time. Mr. Coulthurst and Mr. Weaver are more culpable in that they recruited Mr. Lee and Mr. Theberge.

[79] In light of all of this, I have no hesitation in finding that denunciation and deterrence are the primary principles of sentencing to be applied here. The sentences to be imposed must make it clear to these four men and to any other like-minded individuals that this sort of behaviour will not be tolerated in our society.

[80] To my mind, that can best be accomplished by imposing penitentiary sentences.

[81] All of the counsel here and even Mr. Weaver agreed with that proposition. Crown counsel and counsel for Mr. Coulthurst and counsel for Mr. Theberge were even agreed as to the exact length of the appropriate sentences for those two men. There was some disagreement however in the cases of Mr. Lee and Mr. Weaver.

[82] I will therefore deal with each offender separately.

Richard Coulthurst

[83] Counsel for Mr. Coulthurst and Crown counsel agreed that the appropriate sentence for him is imprisonment for three years over and above 39 days of pre-sentence custody. They also agreed that I should make a DNA order and that I should impose a lifetime firearms prohibition.

[84] Finally, while they agreed that I should make a stand-alone restitution order, Crown counsel argued that I should make all four offenders jointly and severally liable for the full amount while counsel for Mr. Coulthurst argued that he should be liable for only one-quarter.

[85] Both counsel pointed out that Mr. Coulthurst was involved in the planning and organization of this offence. He was also involved in recruiting the others.

[86] He is 45 years old. He is unemployed and receives ODSP as a result of both physical and mental health issues.

[87] He was convicted of mischief in 1993 and was placed on probation.

[88] The Pre-Sentence Report suggested that he did not appear to be remorseful. I take that to be a reflection of his inability to verbalize any empathy. I am viewing his guilty plea as both an acceptance of responsibility and as an expression of remorse. I am giving Mr. Coulthurst full credit for this because, based on the evidence I heard during the preliminary hearing, he had the best chance of fighting this charge at trial.

[89] I am satisfied that the joint submission is a reasonable one and that it will definitely not bring the administration of justice into disrepute. Accordingly, I will be giving effect to the joint submission.

Justin Lee

[90] Crown counsel argued that I should sentence Mr. Lee to imprisonment for a further three to five years over and above pre-sentence custody of 114 days.

[91] Counsel for Mr. Lee argued that the appropriate sentence was imprisonment for three years less the pre-sentence custody and also less another four to six months representing credit for the time that Mr. Lee has been subject to restrictive bail conditions.

[92] Both counsel agreed that I should make a DNA order and that I should impose a lifetime firearms prohibition.

[93] Finally, while they too agreed that I should make a stand-alone restitution order, Crown counsel again argued that I should make all four offenders jointly and severally liable for the full amount while counsel for Mr. Lee argued that he should be liable for only one‑quarter.

[94] Mr. Lee has a criminal record. It postdates this offence however. He committed a break and enter offence about two weeks after the arson. On April 2, 2012, sentence was suspended and he was placed on probation for 18 months.

[95] As well as the arson, he is before me to be sentenced with respect to the other break and enter offence. This offence predated the above-mentioned break and enter offence and the arson.

[96] Mr. Lee is a young man who comes from tragic circumstances. He had the support of his mother but his father got him hooked on drugs. He was under the influence of drugs and of Mr. Coulthurst and Mr. Weaver at the time that he agreed to participate in the offence.

[97] Crown counsel stressed however that Mr. Lee did agree to participate where others had declined to do so. Mr. Lee participated in fact to the point of arming himself with Molotov cocktails and throwing them at the Thomson house.

[98] Since then, he has stopped associating with negative influences. He has begun addressing his drug issues and he has expressed genuine remorse for his actions.

[99] With respect to the arson charge, I believe that Mr. Lee should receive a sentence similar to that imposed on Mr. Coulthurst. There are differences between the two men and their respective degrees of involvement in the case. These balance out however in my mind and I find that they should be subject to the same punishment. There is however the further break and enter charge against Mr. Lee and that also comes into play.

Michael Theberge

[100] Counsel for Mr. Theberge and Crown counsel agreed that the appropriate sentence for him with respect to the arson is imprisonment for two years. They also agreed that I should make a DNA order and that I should impose a lifetime firearms prohibition. Finally, they agreed that I should make a stand-alone restitution order.

[101] It was agreed that Mr. Theberge was the least culpable of the four men. He was a young man with a drug problem who was recruited by others to participate in this crime. He drove the others to the scene but declined to participate in the actual firebombing of the Thomson residence. Even when Mr. Weaver specifically called out to Mr. Theberge for a replacement lighter, Mr. Theberge did not provide one.

[102] Mr. Theberge provided a full inculpatory statement to police. He has expressed regret for his actions ever since.

[103] The attempt to obstruct justice was not a planned or premeditated offence. He came upon Ms. Lewis that day and made the mistake of encouraging her to remain silent and not cooperate with the police. Both counsel agree that the appropriate sentence for this offence is imprisonment for 30 days, concurrent.

[104] Since these offences Mr. Theberge has reconnected with his father. He has completed construction training. He has demonstrated a willingness and an ability to be rehabilitated.

[105] Counsel provided me with a number of letters on behalf of Mr. Theberge. These were entered into evidence collectively as Exhibit 38.

[106] In light of all of these facts, I am satisfied that the joint submission regarding Mr. Theberge is both reasonable and appropriate.

Randy Weaver

[107] Crown counsel argued that I should imprison Mr. Weaver for a further four to six years over and above the time spent by him in pre-sentence custody. Crown counsel made submissions as to how much credit I should give him for that pre-sentence custody but I will address that particular issue later in my reasons. For the moment, it is sufficient to point out that Crown counsel took the position that he was asking for the equivalent of a sentence of imprisonment in the six to eight year range.

[108] Mr. Weaver had suggested earlier in the pre-trial process that he thought that the appropriate sentence here was imprisonment for four years less enhanced credit for pre-sentence custody. I was therefore somewhat surprised when he ultimately argued that the appropriate sentence was imprisonment for three years less enhanced credit for pre-sentence custody. This would amount to a "time served" sentence. Mr. Weaver suggested that this should then be followed by a period of probation.

[109] There was no discussion of the proposed ancillary orders.

[110] Crown counsel had no difficulty in pointing to aggravating factors that I should consider when determining the appropriate sentence for Mr. Weaver.

[111] Mr. Weaver has a long criminal record which runs from 1979 until 2010. There is no history of violence but there are numerous convictions for drug offences, breaches of court orders and break and enters. On April 12, 2010, he was sentenced for a residential break and enter. The sentence was one of time served, 288 days pre-sentence custody plus imprisonment for one further day, to be followed by probation.

[112] Mr. Weaver was on probation for that offence when he committed the offences now before me.

[113] He played a lead, if not the lead, role in this criminal venture.

[114] He chose to get involved and he recruited others to join in with him.

[115] He was involved in planning it.

[116] He went to Mr. Thomson's house armed with 12 Molotov cocktails. This was far more than the minimum that would be needed to deliver the message to Mr. Thomson that he was not wanted in that neighbourhood.

[117] Mr. Weaver also went there masked.

[118] The video shows Mr. Weaver directing the others as to where to go and what to do. It also shows him taking the lead in throwing firebombs at the house. It shows him clearly targeting window openings.

[119] All the while, he can be seen and heard as he yells threats to Mr. Thomson and exhorts him to move away.

[120] It is true that nobody died or was hurt. It is true that there is nothing to even suggest that Mr. Weaver meant for anyone to be hurt. Those are not mitigating facts however. On the contrary, they merely represent the absence of more aggravating circumstances that could have justified the imposition of an even longer sentence.

[121] As I said before, Mr. Weaver and the others had no control over any fire once they had started it and they must be held accountable for the risk they created for both Mr. Thomson and for any firefighters who responded to the alarm.

[122] Finally, Mr. Weaver was still defiant even as he fled after Mr. Thomson began firing his gun.

[123] Again I remind myself, he did all of this while on probation for a residential break and enter offence.

[124] So, as I said above, Crown counsel had no difficulty in pointing to aggravating factors with respect to Mr. Weaver.

[125] There are however mitigating facts which I must consider. I do note that many if not all of these mitigating facts are subject to qualification, but I must still consider them in any event.

[126] Mr. Weaver did plead guilty. I take this to be an expression of remorse on his behalf and an acceptance of responsibility. I am also giving him credit for saving the court the time and effort that would have been required for a trial in the Superior Court of Justice. I accept that he deserves a great deal of credit for this.

[127] He has expressed remorse and apologized to Mr. Thomson on a number of occasions. I am not certain however that this was an unqualified expression of remorse. It seemed to me that Mr. Weaver's apology was based in large measure on the fact that he, Mr. Weaver, had been misinformed when he was told that Mr. Thomson was a pedophile. I am not certain that Mr. Weaver recognizes that the firebombing of Mr. Thomson's house was wrong no matter what Mr. Thomson had or had not done. The apology given by Mr. Weaver was not unequivocal in that regard.

[128] I note as well that he has attempted to minimize his culpability by claiming that he committed these offences while under the influence of alcohol or drugs or lack of sleep. That claim is negated by the facts that he agreed to do this in return for money and that he planned the event, recruited the people to assist him and then carried out the event before the cameras in a manner which showed that he knew full well what he was doing.

[129] Mr. Weaver has been a well behaved inmate. This was confirmed by the representative of the Niagara Detention Centre. This fact does not, however mean that Mr. Weaver has rehabilitated himself to such a degree that he will be a good citizen once he returns to the community. I was not convinced when he told me that he was going to open an art gallery once he is released. He does not have the financial means to do this. Further, the materials presented by him to the court do not suggest that he has the artistic talent. I was not convinced when he told me that he had changed. I was not convinced when he told me that he had accepted God and Jesus.

[130] I most certainly was not convinced when he told me that he can finally obey a probation order. I am far too aware of the fact that he had been placed on probation less than five months before he threw the Molotov cocktails at Mr. Thomson's house. I am hopeful that Mr. Weaver will be ready to benefit from probation after he spends some more time in jail but he is not at that point just yet.

[131] Mr. Weaver told me that he is an aboriginal offender. Accordingly, I must and do consider the impact of s. 718.2(e) of the Criminal Code which provides that:

All available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[132] The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen, 133 C.C.C. (3d) 385, and made it clear that the effect of s. 718.2(e) is to alter the method of analysis which sentencing judges must use in determining a fit sentence for aboriginal offenders. I must be aware that s. 718.2(e) was enacted as a remedial provision in recognition of the fact that aboriginal people are seriously over-represented in Canada's prison population, and in recognition of the systemic reasons for why this over-representation occurs.

[133] I am also mindful of the fact that more than 13 years after the Supreme Court of Canada released Gladue, the proportion of aboriginal offenders incarcerated in Canada's prisons and reformatories has increased. Clearly that is not going to change if we simply pay lip service to the principles of Gladue and then look for reasons not to apply them.

[134] Finally, I recognize that Gladue also requires that as the sentencing judge I must consider a shorter period of imprisonment, in appropriate cases, for an aboriginal offender.

[135] So, I have taken note of the fact that Mr. Weaver is an aboriginal offender. I note as well that he comes from a dysfunctional background. He was on the streets of Hamilton from the time that he was 11 years old. He went from group home to group home. As an adult he has abused alcohol and illegal drugs. It is quite evident that he has mental health issues.

[136] I remain mindful however that sentencing is an individual process, and in each case that the question must continue to be what is a fit sentence for this accused, for this offence, in the community.

[137] It is not a mitigating factor on sentencing simply to be an aboriginal offender, nor is being an aboriginal offender a "get out of jail free card."

[138] In fact, appellate courts have repeatedly stated that where the crime is serious and violent, the more likely it will be that the terms of imprisonment will be the same for similar offences and offenders, whether aboriginal or non-aboriginal.

[139] That is my conclusion here.

[140] Mr. Weaver was involved to a greater degree than any of the others. He has the worst record by far. It would be absurd to suggest that he should receive the same sentence as Mr. Coulthurst and Mr. Lee.

[141] On the other hand, I must not impose a sentence that is so long as to be out of line with what I give the others.

[142] Taking all of the above into account, I find that the appropriate sentence for Mr. Weaver would be imprisonment for between four and one-half and five years.

Credit for Pre-Sentence Custody

[143] Crown counsel and Mr. Weaver have expressed very different views as to the amount of credit I should give Mr. Weaver for his pre-sentence custody.

[144] Everyone agrees that Mr. Weaver has been in custody since September 24, 2010 or 803 days.

[145] Mr. Weaver has asked me to give him enhanced credit for all of this time on a 1.5:1 basis.

[146] He argued that the conditions in the Niagara Detention Centre have been such as to warrant this. More particularly, he argued that the Niagara Detention Centre was overcrowded and that many cells which had originally been built for one inmate now contained two bunks but even worse, often housed three inmates with one inmate sleeping on a mattress on the floor. He argued that very little was offered in the way of programs and that inmates received no exercise, no books and no stimulation for the brain. Further he claimed that the Niagara Detention Centre was home at various times to mould, bug infestations, MRSA and C-difficile. I will address these claims shortly.

[147] Crown counsel argued that I should not give Mr. Weaver any credit for the first 72 days in custody on the basis that Mr. Weaver was initially arrested for some other unrelated offence. He was not charged with the offences now before me until December 5, 2010.

[148] Crown counsel further argued that of the remaining 731 days, I should credit 693 days on a 1:1 basis and only 38 days on a 1.5:1 basis. I will address his reasoning on this later as well.

[149] Before I get to this, I wish to address the law with respect to giving enhanced credit for pre-sentence custody.

[150] As of February 22, 2010, new rules on what, if any, credit may be given for pre‑sentence custody came into effect across Canada. These new rules apply in this case.

[151] Subsections (3) and (3.1) of s. 719 of the Criminal Code now read as follows:

719.(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).

[152] There are no guidelines provided in the legislation to determine how circumstances might justify my increasing the credit to be given for pre-sentence custody. In addition, the legislation is new enough that there is little direction from the appellate courts as to how these rules should be implemented.

[153] Accordingly, I sought guidance from the appellate decisions that predated the current rules.

[154] The situation that existed then is perhaps best described in R. v. Rezaie, [1996] O.J. No. 4468 (Ont. C.A.), where Laskin J.A. wrote at paras. 24 through 26 that:

24. Section 721(3) of the Criminal Code provides:

In determining the sentence to be imposed on a person convicted of an offence, a justice, provincial court judge or judge may take into account any time spent in custody by the person as a result of the offence.

25. Although this section is discretionary, not mandatory, in my view a sentencing judge should ordinarily give credit for pre-trial custody. At least a judge should not deny credit without good reason. To do so offends one's sense of fairness. Incarceration at any stage of the criminal process is a denial of an accused's liberty. Moreover, in two respects, pre-trial custody is even more onerous than post-sentencing custody. First, other than for a sentence of life imprisonment, legislative provisions for parole eligibility and statutory release do not take into account time spent in custody before trial (or before sentencing). Second, local detention centres ordinarily do not provide educational, retraining or rehabilitation programs to an accused in custody awaiting trial. For these reasons, pre-trial custody is commonly referred to as "dead time", and trial judges, in deciding on an appropriate sentence, frequently give credit for double the time an accused has served.

26 Still, this court and other provincial appellate courts have rejected a mathematical formula for crediting pre-trial custody, instead insisting that the amount of time to be credited should be determined on a case by case basis ...

[155] Despite this absence of a hard and fast mathematical formula, it can certainly be argued that 2:1 became the accepted rate of credit. In that regard I note the comments of Steel J.A. at para. 64 in R. v. Pangman, 2001 MBCA 64, [2001] M.J. No. 217 (Man. C.A.):

The courts have recognized that there is no precise arithmetic formula and that sentencing judges exercise a discretion in determining the appropriate amount of credit attached to pre-sentencing custody. Nevertheless, appellate courts in a number of provinces have made it clear that a 2:1 ratio is the "rough rule of thumb" -- more of a guideline than a rule (R. v. Mills, at para. 42 per Donald J.A.). The Supreme Court of Canada, as well as the Manitoba, Quebec and Ontario Courts of Appeal have all acknowledged that, while there is no hard and fast rule, nor should there be, generally 2:1 credit is given for pre-sentencing custody time. (See R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, at para. 45; R. v. Ross (1999), 138 Man.R. (2d) 75 at para. 8 (C.A.); R. v. Lapierre (1998), 123 C.C.C. (3d) 332 at 344 (Que. C.A.); and R. v. McDonald (1988), 127 C.C.C. (3d) 57 at 83 (Ont. C.A.).)

[156] In R. v. Mills, 1999 BCCA 159, 133 C.C.C. (3d) 451 (B.C.C.A.), Donald J.A. described the mathematical rationale underlying the typical credit of double time at para. 46:

Time in custody after sentence counts towards parole eligibility after one-third of the sentence is served and towards statutory release after two-thirds. Giving credit for double the time in predisposition custody hits the midpoint in a range between earning the equivalent of three days for every day served for parole purposes and one and a half days in the case of statutory release.

[157] Steel J.A. points out at paras. 66 and 67 of Pangman, supra, that there have been many cases where credit has been denied or given on a ratio less than 2:1, whereas there have been very few decisions in which a sentencing court has awarded greater than 2:1 credit for pre-sentence custody. Such cases do exist however.

[158] Mr. Weaver argued that this is one of those cases and that he should be given extra credit because of the fact that he was one of three inmates confined in a cell designed for one or at most two people.

[159] In assessing Mr. Weaver's argument, I have reviewed a number of cases addressing situations where an accused was held in segregation. I realize that these are certainly different from this case before me, but I believe that the principles set out in the "segregation" cases can be applied here.

[160] In R. v. Barton, [2002] O.J. No. 4105 (Ont. C.A.), Cronk J.A. stated at para. 16 that, "Segregation is a relevant factor to be considered in determining an appropriate credit for pre-trial custody."

[161] This was recognized by Code J. in R. v. C.O.L., [2010] O.J. No. 2820 (Ont. S.C.J.) at para. 28 and by Durno J. in R. v. Peterkin, [2003] O.J. No. 4403 (Ont. S.C.J.) at para. 41.

[162] Durno J., however, pointed out in R. v. Gaya, [2010] O.J. No. 185 (Ont. S.C.J.), that segregation alone does not necessarily lead to enhanced credit for pre-sentence custody. At para. 81 he wrote:

I have reviewed the cases filed as well as others where credit above two-for-one was given: R. v. Critton, [2002] O.J. No. 2594, supra; R. v. Serniak, [2002] O.J. No. 5160, supra; R. v. Wagner, [2008] O.J. No. 5490, supra; R. v. W.F., [2002] B.C.J. No. 1650 (Prov. Ct.). There is no rule that segregation or protective custody results in additional enhanced credit. Indeed, the British Columbia Court of Appeal has held that "no case from any level that has been cited to us, other than possibly a British Columbia Provincial Court judgment that gave rise to credit of greater than two for one: R. v. Shaw, 2005 BCCA 485, 201 C.C.C. (3d) 30 (B.C.C.A.). I was unable to find any cases where three for one credit was given for segregation alone in Ontario. What the Court of Appeal has said is that segregation is a relevant factor in determining the appropriate pre-trial credit: R. v. Barton, [2002] O.J. No. 4105.

[163] Durno J. refers to R. v. Shaw, [2005] B.C.J. No. 2247 (B.C.C.A.). In that case Levine J.A. wrote at paras. 16 through 18:

16 Thus, the question is whether it was an error of law or principle for the trial judge to conclude that the more restrictive conditions of segregation, in themselves, did not justify a greater credit than two to one. There is no case from any court at any level that has been cited to us, other than possibly R. v. W.F., where segregation, per se, has given rise to a credit of greater than two to one.

17 In my opinion, it would be inconsistent with the principles that the objective of sentencing is to determine a just and fit sentence for the particular offender for the particular offence in the particular circumstances; that there is no set rule for determining the amount of credit for pre-sentence custody, but it is within the discretion of the sentencing judge; and that the sentencing judge is in the best position to assess all of the circumstances and determine the most appropriate sentence in the particular case, to conclude that the fact that an offender is held in segregation for part of his pre-sentence custody warrants a credit of greater than two to one.

18 In this case, there is no evidence that the period of segregation had negative effects on the appellant. The only evidence before the trial judge, and before this Court, tends to show that the appellant's psychological condition improved while he was in custody. There is no cause and effect relationship to the conditions under which he was held of course; it is just that he has not demonstrated that those conditions affected him more than the normal conditions of prison life during the pre-sentence period. I find no basis to conclude that in these circumstances, the trial judge did not properly exercise his discretion in not granting greater than the normal credit of two to one.

[164] I conclude from these decisions then that like segregation, overcrowding alone does not necessarily lead to enhanced credit for pre-sentence custody. It is simply one factor that I must take into account when determining whether to give enhanced credit.

[165] In this case I must also note that while Mr. Weaver called evidence that each cell at the Niagara Detention Centre was originally intended to hold a single inmate, the evidence fell far short of establishing that renovations in which a second bunk was installed in each cell had led to overcrowding.

[166] Common sense tells me that such cells are certainly overcrowded when a third inmate is required to sleep on a mattress on the floor. Evidence was led to establish that this had occurred during Mr. Weaver's stay in the Niagara Detention Centre. I was not however provided with evidence as to how often, if ever, Mr. Weaver was one of three people in a cell let alone how often if ever, he slept on a mattress on the floor. Nor was I provided with evidence as to how many hours per day the inmates were in those cells as opposed to other common areas within the detention centre. The witness called by Mr. Weaver did state that Mr. Weaver had "seniority" amongst the inmates and as such would have been less likely to be sleeping on the floor.

[167] That witness also refuted Mr. Weaver's claims with respect to the presence of mould, bug infestations, MRSA or C-difficile.

[168] I must also consider other factors in determining whether to give enhanced credit.

[169] In R. v. Sooch, 2008 ABCA 186, [2008] A.J. No. 517 (Alta. C.A.), Martin J.A. wrote at para. 12 that:

The decision to award enhanced credit is also a matter of discretion, but it must be exercised judicially. That requires consideration of all relevant information. The reason for predisposition custody is a particularly relevant factor.

[170] This would appear to be even more relevant under the new rules, particularly s. 719(3.1) which provides that I cannot give more than 1:1 credit if "the reason for detaining the person in custody was stated in the record under subsection 515(9.1)". That subsection refers to cases where "the justice orders that the accused be detained in custody primarily because of a previous conviction of the accused".

[171] I do not know whether a detention order was ever made with respect to these charges. No evidence was led to establish whether a bail hearing ever did take place, and if so, what the result was.

[172] I was told that Mr. Weaver was already in custody on another matter when he was charged with these offences. I have been shown his criminal record. Common sense tells me that had Mr. Weaver appeared before a justice of the peace for a bail hearing, there was a very real likelihood that he would have been detained because of his previous convictions. Had that happened, s. 719(3.1) would have precluded me from giving more than 1:1 credit, no matter how bad the conditions in the Niagara Detention Centre might be.

[173] I must keep that in mind too then when determining whether to give enhanced credit or not.

[174] I am accepting that a detention centre offers fewer programs than a reformatory or a penitentiary. This was certainly a factor to be considered under the old rules and I believe it should be a factor to be considered under the new rules. That is tempered however by the fact that, when enacting the amendments to the Criminal Code, Parliament must have been aware of the differences between conditions in detention centres and conditions in reformatories and penitentiaries, and Parliament must also have been aware that this was a factor considered by judges under the old rules.

[175] Parliament, of course, has the power to make the rules. Assuming they do so in a constitutionally valid fashion, I am constrained by them.

[176] I also note that based on the numerous drawings introduced into evidence by Mr. Weaver, he had ample opportunity to engage in artistic pursuits. It is also evident that he spent a great deal of time preparing for his preliminary hearing, the ensuing exit pre-trial and his submissions with respect to sentence.

[177] After considering all of the above, I am not satisfied that I should give enhanced credit beyond what is now the norm, that is 1:1, other than to the following extent.

[178] Firstly, I am giving Mr. Weaver credit for all of the time that he has been in custody. I realize that he was in jail for 72 days before being charged with the current offences. He was therefore not technically in custody then as a result of these offences but he was in custody. Simple fairness dictates that he be given credit for that time and this sentencing provides the only opportunity for that to happen.

[179] I am satisfied that, had I sentenced Mr. Weaver on July 3, 2012, the day that he indicated his intention to plead guilty, he would have earned remission at a rate of one day for every two days served following the imposition of his sentence. I am also satisfied that he should not lose credit for those days he spent in custody while awaiting the hearing of further evidence and submissions or to allow for the preparation of these Reasons for Sentence.

[180] By my calculation, that time encompassed 154 days. He would have earned remission for 77 days and, accordingly, I am going to give him credit for those 77 days.

[181] With respect to the issue of lost remission and its impact on credit for all pre‑sentence custody, I have read R. v. Monje, 2011 ONCA 1, [2011] O.J. No. 1 (Ont. C.A.) per LaForme J.A. This was a sentence appeal from a Summary Conviction Appeal decision that was still governed by the old rules. The court commented however, at para. 18, that:

I would note parenthetically that, to the extent that the recently legislated "new rules" concerning credit for pre-sentence custody limit an offender's entitlement to credit on a 2:1 basis, the reality of what "dead time" is remains. That is, pre-sentence custody continues to be "dead time" for the same reasons Laskin J.A. noted in Rezaie and remains as one of the most punitive forms of imprisonment in Canada.

[182] Then at para. 25, LaForme J.A. wrote:

In conclusion, the appeal judge is in error by treating the court's jurisdiction over post-sentence custody as being the same as that over pre-sentence custody. He failed to appreciate and consider that the pre-sentence custody served by the appellant does not count towards his eligibility for parole or statutory release. In other words, he failed to take into account a relevant consideration in assessing credit for the appellant's pre-sentence custody. This constitutes an error in principle and the sentence imposed by the appeal judge is not entitled to deference.

[183] Arguably, the Court of Appeal is saying that it is necessary for sentencing courts to consider the loss of remission as a factor in determining how much credit should be given for pre-sentence custody, even under the new rules.

[184] Green J. certainly reached that conclusion in R. v. Johnson, 2011 ONCJ 77, [2011] O.J. No. 822 (Ont. C.J.). So did Glithero J. in R. v. Summers, [2011] O.J. No. 6377 (Ont. S.C.J.).

[185] This argument breaks down, however, when one considers that the impact of such reasoning would be to make 1.5:1 credit appropriate in virtually every case, whereas the clear intention of Parliament in enacting s. 719 was to make enhanced credit beyond 1:1 the exception, and not the rule.

[186] Neither Monje nor Johnson nor Summers found that the new legislation is unconstitutional. In fact, Johnson found that it was constitutionally valid. That being the case, I am bound by the law as written by Parliament. The clear intention of Parliament is that I not give enhanced credit for pre-sentence custody other than in exceptional circumstances.

[187] Johnson sets out a persuasive case for why all courts should take the loss of remission into account in all cases and, therefore, routinely give enhanced credit for pre‑sentence custody on a 1.5:1 basis. What Johnson does not do, in my view, is explain how I can ignore the clear intention of Parliament to the contrary.

[188] Accordingly, I am giving credit for an extra 77 days only.

[189] When added to the 803 days that Mr. Weaver has actually spent in custody, the total is 880 days or about 29 months.

[190] Crown counsel argued that I should not give enhanced credit for the pre-sentence custody following Mr. Weaver's application to strike his guilty plea. He argued that it was as a result of this frivolous action on the part of Mr. Weaver that Mr. Weaver spent that extra time in custody.

[191] I understand Crown counsel's position. I am rejecting it however.

[192] Mr. Weaver is representing himself. It is unfortunate that he has chosen a scatter-gun approach to his advocacy, latching on to every possible argument that he can, rather than focusing on those that have merit. However, he is by everyone's assessment looking at a lengthy jail sentence and I cannot fault him for taking the approach that he has.

[193] I certainly cannot fault him when I believe that he is not the only one responsible for dragging out the proceedings in this case. Amongst others, I fault Legal Aid Ontario for their actions in this case.

[194] Mr. Weaver was granted Legal Aid initially. Apparently then he qualified for Legal Aid both on a financial basis and on the basis of the seriousness of his charges. He discharged his first lawyer and hired a second one. For good reason, Legal Aid Ontario did not like this. Despite this dislike, they allowed the change of solicitors. They took a different position, however, when Mr. Weaver discharged his second lawyer. On that occasion, Legal Aid Ontario refused to fund a third lawyer. I could understand and accept this decision in many, if not most, cases. An accused person does not have an unqualified right to Legal Aid. It is an expensive and time consuming duplication of services for both the old lawyer and the new lawyer to review the same file. So, as I said, it may well be appropriate to refuse further Legal Aid coverage in many cases. Here, however, it turned out that Mr. Weaver's second lawyer was in a conflict situation and could not represent him in any event. Crown counsel verified this and at my request informed Legal Aid Ontario of this fact. Legal Aid Ontario still refused to reconsider their decision. In so doing they may have protected their own budget, but I have no doubt that they cost the province many thousands of dollars and much court time in the protracted proceedings that ensued here.

[195] They also left Mr. Weaver to his own devices. As a self-represented inmate, he was likely exposed to all sorts of advice from other inmates as to what might have worked either for them or someone else whose case they had heard of. Unfortunately, Mr. Weaver did not have a lawyer available to help him distinguish good advice from bad.

[196] So, as I said before, I cannot and do not fault Mr. Weaver for what I consider to be bad tactical decisions. They are to be expected of someone in his position.

[197] Accordingly, I am giving Mr. Weaver credit for the further 77 days and treating his pre-sentence custody as 880 days or approximately 29 months.

[198] Accepting that the appropriate range of sentence is imprisonment for between four and one-half and five years, I am left with two options. I can take the upper end of the range and keep Mr. Weaver in jail for a few more months. Alternatively, I can choose the lower end of the range and sentence him to time served plus a further two years in the penitentiary. That latter sentence can be followed by probation for up to three years, allowing me to provide some guidance and supervision to Mr. Weaver for a total of five years over and above his pre-sentence custody. Hopefully the two years in the penitentiary will bring him to the point where a probation officer will be able to help him address his substance abuse and mental health issues in the community. The probation order would also keep him away from both Mr. Thomson and other Crown witnesses in this case as well as some of the negative influences in Mr. Weaver's life.

[199] I am choosing the latter option here.

Sentences

[200] I sentence Mr. Coulthurst to time served, being 39 days pre-sentence custody, plus imprisonment for a further three years.

[201] I will address the ancillary orders for all four accused shortly.

[202] I sentence Mr. Lee to time served, being 39 days pre-sentence custody, plus imprisonment for a further three years with respect to the arson charge. I sentence him to time served, being 77 days pre-sentence custody with respect to the break and enter charge.

[203] I sentence Mr. Theberge to imprisonment for two years with respect to the arson charge. I sentence him to imprisonment for 30 days, concurrent, with respect to the attempt to obstruct justice charge.

[204] With respect to the arson charge I sentence Mr. Weaver to time served of 803 days pre-sentence custody to be credited as 880 days, plus imprisonment for a further two years, followed by probation for three years.

[205] With respect to the charge of having his face disguised, I sentence Mr. Weaver to imprisonment for two years concurrent.

[206] With respect to the charge of breaching his probation, I sentence Mr. Weaver to imprisonment for six months concurrent.

[207] The terms of his probation order are that Mr. Weaver will:

1. Keep the peace and be of good behaviour;

2. Appear before the court when required to do so by the court; and

3. Notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation.

4. Report to a probation officer within two working days of his release and thereafter, when required by the probation officer and in the manner directed by the probation officer;

5. Remain within Ontario unless written permission to go outside that jurisdiction is obtained from the court or the probation officer;

6. Not associate or communicate directly or indirectly with Richard Coulthurst or Justin Lee or Michael Theberge;

7. Not associate or communicate directly or indirectly with Ian Thomson or Justin Wilson or Ashley Lewis or Alanna James or Stephanie Culp or Cherrie Ann Chichocki or David Cowe and not attend within 20 metres of them or any place known to be their residence or school or place of employment or worship except through or in the presence of his lawyer or when in court as a party or a witness with respect to legal proceedings or pursuant to a Family Court order for the purpose of arranging or exercising access to his children;

8. Attend for and actively participate in, to the satisfaction of the probation officer, any assessment, treatment or counselling as required by his probation officer including but not restricted to any assessment, treatment or counselling with respect to alcohol abuse or drug abuse and sign whatever consents or releases that may be required by the probation officer to monitor and verify compliance with said assessment, treatment or counselling, and provide written proof of completion of said assessment, treatment or counselling to the probation officer;

9. Abstain absolutely from the purchase, possession or consumption of illegal drugs;

10. Make reasonable efforts to find and maintain suitable employment and provide written proof to the probation officer.

Ancillary Orders

[208] Pursuant to s. 109 of the Criminal Code, Mr. Coulthurst, Mr. Lee, Mr. Theberge, and Mr. Weaver are all prohibited for life from owning, possessing or carrying any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance. That is with respect to the arson charge.

[209] Arson is a secondary designated offence. I am satisfied that this is an appropriate case and I make an order pursuant to s. 487.051 of the Criminal Code authorizing the taking, from Mr. Coulthurst, Mr. Lee, Mr. Theberge and Mr. Weaver, of any number of samples of one or more bodily substances including blood that is reasonably required for the purpose of forensic DNA analysis.

[210] I am making stand-alone restitution orders against each of Mr. Coulthurst, Mr. Lee, Mr. Theberge and Mr. Weaver in favour of Ian Thomson in the amount of $11,214.22. Each of the four accused is jointly and severally liable for the full amount. I leave it to Mr. Thomson and his insurer to work out any division of that restitution between them.

[211] I note that it will be months, if not years, before these four men will be released from prison and that it is unlikely that they will have the means to pay any victim fine surcharges during that time. Accordingly, I waive those surcharges.

[212] Finally, I am ordering that the correctional authorities will be provided with a copy of my Reasons for Sentence, along with a copy of the Pre-Sentence Reports filed in this case and the reference letters filed on behalf of Mr. Theberge.

Released: December 3, 2012

Signed: "Justice D.A. Harris"

Justice D.A. Harris