Court File and Parties

Ontario Court of Justice

Date: 2016-06-08

Court File No.: Peterborough 14-2377

Between:

Her Majesty the Queen

— and —

Kimberly Pidgeon

Before: Justice S. W. Konyer

Heard on: May 10, 2016

Reasons for Sentence released on: June 8, 2016

Counsel:

• Ms. A. Kok, counsel for the Crown
• Mr. K. Mitchell-Gill, counsel for the accused Kimberly Pidgeon

Reasons for Sentence

KONYER J.:

[1] On November 27, 2015, I found Ms. Pidgeon guilty of intentionally causing damage by fire to a property owned in part by another person, contrary to section 434 of the Criminal Code, following a lengthy trial. The sentencing was then adjourned in order to allow for the preparation of a Pre-Sentence Report and for the filing of Victim Impact Statements.

[2] On May 10, 2016, I heard submissions on sentence. The Crown, emphasizing the seriousness of this offence and the need to denounce and deter such conduct, sought a term of imprisonment in the range of ten to twelve months followed by lengthy probation and a restitution order. The defence, emphasizing the lack of criminal record and Ms. Pidgeon's employment, asked that I suspend the passing of sentence or, in the alternative, that I impose an intermittent prison sentence plus probation as well as a restitution order. These are my reasons for sentence.

Sentencing Principles

[3] The sentence I impose must be one that is proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code, s.718.2. In addition to being proportionate, any sentence that I impose should also be designed to contribute to respect for the law and the maintenance of a just, peaceful and safe society: s. 718. This should be accomplished through imposing just sanctions designed to achieve one or more of the following goals:

• To denounce the unlawful conduct
• To deter the offender and others
• To separate the offender from society, where necessary
• To assist in the rehabilitation of the offender
• To provide reparations for harm done to any victim or the community
• To promote a sense of responsibility in offenders

[4] All of these sentencing goals have some application in Ms. Pidgeon's case. In order to determine a fit sentence, it is therefore necessary to review the facts of the case and Ms. Pidgeon's personal circumstances in some detail.

Facts of the Case

[5] Ms. Pidgeon purchased a home at 20 Centre Street in Millbrook in 2007 with Sean Kane, her partner at the time. She sold her home in Ajax to finance the purchase, which was intended to be a renovation project. She separated from Mr. Kane in 2009 after he was charged with domestic violence offences. Mr. Kane remained on title at the time of the arson on June 10, 2014.

[6] Between the time of Mr. Kane's departure and the arson, Ms. Pidgeon lived at the home with another domestic partner, Sean King, and also rented the home to tenants for a period of time. There was an extensive flood in the house at one point which caused massive damage that was never fully repaired. The tenants who rented the home for about a year left it filthy, bug infested and littered with cat urine and feces. No significant renovations to the home were ever done. By the time of the fire, Ms. Pidgeon and Mr. King had separated, and she was living alone in the home while working as a personal support worker. Her relationship with her neighbours was strained due to the home's constant state of disrepair. In June 2014, Ms. Pidgeon was lonely and depressed. Her home, by all accounts, was filthy and barely fit for human habitation.

[7] Ms. Pidgeon's mother, Shirlee Pidgeon, lived about an hour's drive from Millbrook. Even though they had lived so close to one another for several years, the first time that Shirlee visited her daughter's home was on June 10, 2014, the day of the arson. Shirlee Pidgeon testified as a Crown witness at trial, and it was clear to me that she was shocked and appalled by the conditions in her daughter's home. Shirlee's testimony indirectly implicated her daughter in the setting of the fires, which occurred shortly before both women left the house together. Although I concluded that it was likely that both women were responsible for starting the fires, only Kimberly Pidgeon was charged, and I was satisfied beyond reasonable doubt of her involvement.

[8] Three fires were set within the home, all designed to appear accidental in nature. A candle was left burning near a curtain in an upstairs bathroom, an element on the stove was left on with a rag left nearby, and some papers on top of furniture in the basement below an electrical panel were set on fire. No accelerant was used, and the fire was discovered within minutes of the Pidgeon women leaving the home when neighbours noticed smoke.

Impact on First Responders

[9] I learned during the course of the sentencing hearing that the fire was attended by a number of first responders, including members of the Cavan Monaghan Fire Department, the Otanabee-South Monaghan Fire Department, the Peterborough Fire Services, the Ontario Provincial Police and local Emergency Medical Services. It was not known on arrival whether the home was occupied, so search and rescue operations were undertaken to locate potential victims. Three volunteer members of the Cavan Monaghan Fire Department were taken to hospital and treated for heat exhaustion following their duties attending to this fire. Two of those members filed Victim Impact Statements at the sentencing hearing describing impacts which included difficulty breathing for a month after the fire, emotional impact on themselves and family members, and temporary loss of employment at their places of work. In addition, the costs to township of Cavan Monaghan for fire response are $10,125.00.

Personal Circumstances of the Accused

[10] In addition to the nature of the offence, I must take into account Ms. Pidgeon's personal circumstances in determining the appropriate sentence. She is 55 years of age, and has no previous criminal record. She has a troubled relationship history, and has been the victim of domestic abuse by multiple partners. She has received counseling intermittently since 2008 for many issues including surviving domestic violence, post-traumatic stress disorder, depression, anxiety, self-esteem and assertiveness. She currently sees a counselor through the YWCA.

[11] Ms. Pidgeon is the mother of three adult children and seven grandchildren. She has had strained relationships with most family members including parents, siblings and children, though I understand she has taken steps recently to become part of the lives of her children and grandchildren. Since her arrest on this matter, she has been forced to move several times, including some time spent in a women's shelter. She has recently secured stable housing in Trenton.

[12] Ms. Pidgeon appears to have a steady employment history since obtaining her Personal Support Worker certificate in 1998. She has worked steadily, supported numerous domestic partners, and appears to find comfort in the stability of her employment. The Pre-Sentence Report which was prepared for this matter is generally positive, and Ms. Pidgeon was assessed as being a suitable candidate for community supervision.

Seriousness of Arson

[13] Arson is a serious offence even when, as here, the building set on fire is known to be unoccupied at the time. There is always a risk that the fire could spread and cause injury or property loss to other persons, and there is always a real risk of injury to firefighters who are called to respond to the scene. As the Ontario Court of Appeal has noted, "it needs to be underlined that arson always jeopardizes the lives of firefighters and other emergency personnel who respond to fires": see R. v. Mirzakhalili, 2009 ONCA 905, at para. 9. In this case, that risk was realized, though thankfully the brave volunteers who attended the fire deliberately set by Ms. Pidgeon were not seriously harmed. The results of Ms. Pidgeon's conduct are proof that arson is not a victimless crime.

[14] Although Ms. Pidgeon's attempt to destroy her home by fire did not include the use of an accelerant to ensure that the fire spread quickly, she nevertheless took steps to make the fire appear accidental, which suggests a degree of planning and deliberation. Although the fact that the fire was started in broad daylight and quickly discovered by neighbours suggests that in some ways her plan was poorly considered, the risks posed by her actions cannot be ignored. Her intention was clearly to destroy her home, and the risk that this course of action carried for others would have been obvious to Ms. Pidgeon, a mature and intelligent woman who has been trained and employed as a health care professional. Accordingly, she bears a high level of moral culpability for her actions.

[15] Having said this, I do not believe that Ms. Pidgeon ever thought that anyone would be hurt by her actions. This case is far different than, for example, the situation in Mirzakhalili, supra, where the offenders caused an explosion and fire inside their business by using gasoline as an accelerant knowing that other people were working in an adjoining shop. The explosion caused windows to be blown out into a parking lot and jeopardized the lives of people the offenders knew were in close proximity. Their actions were motivated by greed, as they intended to defraud their insurer of $200,000. The Court of Appeal characterized the arson in Mirzakhalili as serious and held that a sentence of two years less a day was appropriate for a youthful first offender in order to address the principles of deterrence and denunciation. Although the arson committed by Ms. Pidgeon was also serious, it is simply not of the same scale, and the principle of proportionality dictates that the sentence I impose for Ms. Pidgeon must reflect that reality.

Comparative Case Law

[16] I was provided with three other cases by the Crown. No cases were filed by the defence. In R. v. Popert, 2010 ONCA 89, the Court of Appeal affirmed a sentence of nine months jail for a youthful first offender who committed an arson for hire to a residential home. Like this case, no accelerant was used and the fire was extinguished by firefighters before the house burnt completely. There is no mention of any injuries, and Mr. Popert confessed his involvement with police and entered a guilty plea.

[17] In R. v. Sousa, 2014 ONCA 550, the Court of Appeal affirmed a six month jail sentence for a woman who was convicted following a trial of setting fire to her rented home for the purpose of defrauding her insurer. The evidence against Ms. Sousa was circumstantial. Like this case, she was seen leaving the home by a neighbour shortly before smoke was seen. Two ignition sites were located that had been disguised to make the fire appear accidental, and an attempt was made to use paint as an accelerant. There was over $90,000 in damage. Ms. Sousa appealed her sentence and sought the imposition of a conditional or intermittent sentence. In dismissing her appeal, Strathy C.J.O. noted [para. 18] that "there was evidence of deliberation, financial motive, lack of remorse and a serious risk to others. These circumstances called for a deterrent and denunciatory sentence." I do not know whether Ms. Sousa had any prior criminal record. At the time Ms. Sousa was sentenced, a conditional sentence was an available sentencing option. That is no longer the case.

[18] Finally, in R. v. Jonah, 2014 ONCJ 19, Justice Harris sentenced a 38 year old first offender to six months jail and two years probation for committing an arson to his own home. The fire was set in an aborted suicide attempt, and resulted in significant burn injuries to Mr. Jonah. The fire was contained to the master bedroom where Mr. Jonah had spread gasoline, and it was extinguished by firefighters in a matter of minutes. He set the fire following an argument with his partner that led to the canceling of plans for their wedding. Like this case, Mr. Jonah had a steady employment history.

Sentencing Objectives: Denunciation and Deterrence

[19] As I said earlier, in Ms. Pidgeon's case all of the sentencing objectives set out in s.718 of the Criminal Code apply to some degree. In the case of an arson to a home located in a residential neighbourhood, denunciation and deterrence are of fundamental importance. Denunciation is an expression of society's abhorrence of the criminal conduct in question through the sentence imposed. Deterrence represents the hope that the sentence will deter the particular offender and others in similar circumstances. These goals are generally achieved by imposing a harsh sentence in order to send the appropriate message. As the Supreme Court of Canada recently held, the objectives of denunciation and deterrence "are particularly relevant to offences that might be committed by ordinary law-abiding people. It is such people, more than chronic offenders, who will be sensitive to harsh sentences": see R. v. Lacasse, 2015 SCC 64, at para. 73.

[20] Indeed, generally speaking, most courts have concluded that nothing short of a period of imprisonment is sufficient to properly denounce and to attempt to deter serious arsons. Although the circumstances of Ms. Pidgeon's case are less extreme than the facts found in some of the cases relied upon by the Crown, there is no doubt that this arson was serious. Three volunteer firefighters suffered heat exhaustion as a result of Ms. Pidgeon's conduct. They missed time at work. In all of the circumstances before me, I conclude that there is no other reasonable alternative to a period of imprisonment that is sufficient to address the pressing need for denunciation and deterrence.

Principle of Restraint

[21] Although the seriousness of this offence calls for some period of incarceration, I must also consider the fact that Ms. Pidgeon is a first offender. The principle of restraint applies and dictates that I impose the shortest possible period of incarceration necessary to properly address the objectives of denunciation and deterrence. Although sentencing ranges from previously decided cases can be instructive, they are guides and not straitjackets for sentencing judges, and every sentence must be tailored to the circumstances of the particular offence and the particular offender: see R. v. Lacasse, supra, at para. 57-58.

Mitigating Circumstances

[22] In determining the appropriate length of incarceration, I must take Ms. Pidgeon's personal circumstances into account. She has been the victim of serious and prolonged abuse, which is related to her decision to set her home on fire.

[23] The house that Ms. Pidgeon set fire to on June 10, 2014 had been the source of nothing but misery since she moved there in 2007. She moved there in furtherance of a relationship with a partner who turned violent, one of a string of abusive relationships that have plagued her life. She financed the purchase of this home to please a former partner, and was the victim of emotional and financial abuse throughout the time she lived in the home. By the time of the arson, Ms. Pidgeon was lonely and isolated in this house, in a community where she was shunned by most of her neighbours.

[24] The house had been purchased by Ms. Pidgeon and her former partner with a view towards renovating it. Few repairs were actually done, however, and the house fell into an appalling state of filth and disrepair over the course of Ms. Pidgeon's ownership. It was flooded, neglected and trashed by tenants. When she was questioned in the aftermath of the arson by police, it was suggested to Ms. Pidgeon that the house had become nothing but a heartache to her by the time of the fire. Though she denied this suggestion, it is obvious to me that this was the case. While this cannot excuse her criminal conduct, it does place her actions in the proper context to assess her degree of moral blameworthiness for making the decision to set fire to her home. This case is very different in this regard from Mirzakhalili and Popert, where the offenders were motivated solely by greed. Though Ms. Pidgeon was no doubt motivated in part by a desire to be rid of the financial burden of owning a home in such an awful state of repair, I find that her actions were also at least partly the result of emotional stress, isolation and despair.

Balancing Competing Factors

[25] Like any sentencing, this case calls for a balancing of competing factors. Ms. Pidgeon's conduct in committing this serious offence must be strongly denounced through the imposition of a harsh sentence, one that will also serve the dual purpose of deterring other like-minded individuals. It is also important that the sentence be designed to foster Ms. Pidgeon's rehabilitation, and that it enable her to make reparations to the community. To do this, the sentence will include a term of community supervision with rehabilitative and restorative conditions.

The Sentence

[26] I have reached the conclusion that a term of imprisonment for five months followed by probation for two years is a just and proportionate response to Ms. Pidgeon's criminal behaviour.

[27] Accordingly, the sentence is one of five months jail, followed by two years probation on the following terms:

• Keep the peace and be of good behaviour;
• Appear before the court when required to do so;
• Notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change in employment or occupation;
• Report in person to a probation officer within two working days of your release from custody and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision;
• Cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this Order to your probation officer on request;
• Do not associate or communicate, in any way, by any physical, electronic or other means, or be in the company of Sean King, William Coles, Betty Coles or Terry Penney;
• Do not be within 100 metres of any place where you know any of the person(s) named above to live, work, go to school, frequent or any place you know the person(s) to be except for required court attendances;
• Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer;
• Perform 50 hours of community service work on a rate and schedule to be directed by the probation officer but must be completed within 18 months of the start date to this Order.

Community Service and Restitution

[28] I am including a term for community service in this order as I feel it is important to Ms. Pidgeon's rehabilitation that she make some reparation to the community for her actions. I have not included Ms. Pidgeon's mother in the list of people she is prohibited from communicating or associating with as family circumstances may necessitate the need for communication in circumstances where it may not be feasible to obtain a variation.

[29] I am also making a restitution order pursuant to section 738(1)(a) of the Criminal Code against Ms. Pidgeon in favour of the Township of Cavan Monaghan in the amount of $10,125.00 for costs incurred in extinguishing the fire at her home.

DNA Order and Victim Surcharge

[30] Despite the lack of a prior criminal record, the seriousness of the facts of this case mean that, in my view, it would be in the best interests of the administration of justice to make the DNA order sought by the Crown. I grant the Crown's application for a DNA order.

[31] Finally, I am required by law to impose a Victim Surcharge in the amount of $200 for this offence. On consent, the time for payment of the surcharge is extended to 9 months.

Released: June 8, 2016

Signed: "Justice S. W. Konyer"