R. v. Popova, 2023 ONCJ 331

CITATION: R. v. Popova, 2023 ONCJ 331

DATE: 2023·07·26

COURT FILE No.: 22- 40004735, 22-40004702, 22-40004689

Metro North, Toronto Region

ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

• AND -

VALENTYNA POPOVA

Before Justice Cidalia C. G. Faria

Heard on May 19, July 13, July 14, 2023

Reasons for Sentence released on July 26, 2023

Glen Tucker……………………………………………………..counsel for the Crown

David Newton…………………………………for the defendant Valentyna POPOVA

Faria J.:

OVERVIEW

[1] Ms. Valentyna Popova pled guilty to Arson Disregard Human Life, Fail to Comply with a Release Order, and Mischief Under contrary to the ss. 430(b), 145(5)(a) and 430(4)(b) of the Criminal Code on May 19/23. Sentencing was adjourned to obtain a Pre-Sentence Report[^1] and a mental health assessment[^2].

[2] On the morning of sentencing, July 13, 2021, Counsel for Ms. Popova filed 11 exhibits[^3] and the Crown filed 4 cases. Given it was a busy docket, the matter was adjourned to the next day. Again, on a very busy docket, I sentenced Ms. Popova orally with reasons to follow. These are my reasons.

Facts

[3] On September 25, 2022, Ms. Popova was on a Release Order not to attend 4141 Bathurst Street in Toronto. At about 8:30 a.m., a former neighbour saw her enter that building, act in a bizarre manner, and called the police.

[4] The Cheltenham Community Centre, at 5935 Bathurst Street, is an assisted living residence and home to about 100 seniors. In the early morning hours of October 14, 2022, Ms. Popova was seen on CCTV starting 6 separate fires within a 2-hour period. Each fire was either extinguished by Ms. Popova or it is believed they extinguished on their own off camera. Ms. Popova caused damage under $5000 and left the location.

[5] On October 16, 2022, Ms. Popova started another 5 fires between 5:00 a.m. and 10:00 a.m. in the area of 4300 Bathurst and 4866 Bathurst Street. First, she went to 4238 Bathurst and started a fire against the wall of the apartment building causing severe damage to the wall. A witness observed the flames, extinguished the fire, and called 911.

[6] Then Ms. Popova went into the lobby of 4266 Bathurst Street and used a lighter and paper to ignite a floor mat. She dropped clothing near the fire which fueled it. She watched the fire before she left to 4340 Bathurst. There, she broke off the air conditioning unit from the wall, accessed the building and stole keys to the property.

[7] At about 9:45 a.m., Ms. Popova went to 4866 Bathurst Street where she lit a cigarette and used it to light a piece of cardboard on fire. She tossed the cardboard and the lit cigarette, into two separate dumpster bins, setting two more fires.

[8] When officers arrived and arrested Ms. Popova, she had 5 lighters and the property keys for 4340 Bathurst Street on her.

Ms. Popova’s Circumstances

[9] Ms. Popova is 30 years old and has no criminal record. Both the Pre-Sentence Report and the CAMH report provide details about childhood trauma, limited education, deteriorating relationships, and mental health challenges.

[10] She immigrated to Canada as a youngster, her father had a drinking problem, she lost a friend to suicide and was sexually abused by a male friend for years. Her parents separated when she was 15 and continued to be supportive but had varying success as her challenges grew over the years.

[11] Ms. Popova quit school in grade 10 and went to work in retail and then construction, only to be fired for drinking. She turned to alcohol at the age of 13 and cannabis at 15. Her substance of choice became crystal meth to which she was severely addicted by the time of these offences and in fact was under its influence when she committed these offences.

[12] Ms. Popova has had psychiatric consultations in 2007, 2013, and 2019. She experienced self-harm and an eating disorder as a teenager. She was prescribed medication but discontinued it. She was referred to programs but did not go to them. She was diagnosed with Polysubstance Use Disorder (alcohol, cannabis, and amphetamines) currently in remission and Substance Induced Psychosis in partial remission.

[13] On the one hand, Ms. Popova has significant difficulties to deal with: a mental health diagnosis; a drug addiction; and alcoholism. On the other hand, she has skills, significant work experience, some education, managed to be housed for many years and has family support.

[14] While in custody, Ms. Popova has been busy and productive. She has avoided intoxicants and sobered up. She has been counselled by the Corrections addiction counselor and the Chaplain. She has been in contact with The Jean Tweed Center who is offering her day programming and residential treatment.

[15] As an alumnus of Building Up, they are prepared to work with Ms. Popova again to get her employment. She has completed certificate courses in addiction, nutrition and fitness, and YMCA classes in life skills. She has also taken correspondence courses with UNB/Humber.

Position of the Parties

[16] The Crown recommended an 18-month jail sentence minus pre-sentence custody, the maximum probation, and two ancillary orders. In support of his position, he referred to four cases[^4]. He submitted specific and general deterrence are the guiding principles and rehabilitation is a secondary consideration.

[17] The Defence submitted that given Ms. Popova is a first offender, her rehabilitation efforts while incarcerated are significant and she has a plan upon release, her pre-sentence custody which is 277 days, meets the principles of deterrence and the court should be guided by restraint and rehabilitation. He recommended a Suspended Sentence. In the alternative, he recommended a short period of incarceration served in the community as a Conditional Sentence. He had no issue with probation and took no position on the ancillary orders.

Sentencing Objectives

[18] The primary guiding principle is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender pursuant to s.718.1 of the Criminal Code.

[19] A just sanction must denounce unlawful conduct. It must consider general and specific deterrence. It must separate offenders from society when necessary, assist offenders with their rehabilitation, enable reparations when appropriate, and promote a sense of responsibility and acknowledgement of harm done pursuant to s.718.

[20] Aggravating and mitigating factors must be considered, s. 718.2.

[21] In this instance, in aggravation:

• Ms. Popova started 11 fires in two days;

• The fires were started in and around residential buildings where vulnerable residents lived;

• She made no attempt to warn people about these fires, and in fact enhanced some of the fires after setting them;

• Her random, careless arson setting in residential settings created numerous dangerous situations, at least one of which required someone to put out the fire before calling 911;

• Ms. Popova was out on bail when she committed these offences.

[22] In mitigation:

• Ms. Popova has no criminal record. She has managed to be employed and housed despite her mental health challenges and substance addictions most of her life without getting in trouble with the law. This is no easy feat when homeless, intoxicated, or high, while traumatized and trying to survive.

• Ms. Popova’s guilty plea demonstrates accountability and remorse even though the crown had a strong case with offences captured on video.

• The guilty plea obviates the witnesses having to come testify particularly those to whom doing so would be inconvenient and those for whom it would be emotionally challenging given familial ties.

• The guilty plea also significantly benefits the criminal justice system. It obviates numerous trials as she was facing 5 sets of charges.

• In addition, during these post-pandemic times when resources are strained as a result, and in this particular courthouse, where staff shortages regularly result in courtroom closures, a guilty plea that saves resources is of significant benefit to the system.

• Ms. Popova has the support of her family. Her father who has been sober for 3 years, is offering to have her live with him and support her until she gets back on her feet.

• Ms. Popova has very good rehabilitation prospects. In addition to her family, she has both The Jean Tweed Center to address her addiction issues and Building Up with whom she has a relationship from the past, to assist her with employment.

• The evidence filed showed a consistent dedication and commitment to turning her life around, insight into her challenges, and a plan to deal with them.

Analysis

[23] Arson is a serious offence. Ms. Popova set 11 separate fires in residential areas and to residences. As such, each could have had disastrous consequences. In this case, fortunately, no one was hurt and the damage, relatively speaking, was on the lower end of the spectrum.

[24] Two factors must be considered when evaluating Ms. Popova’s degree of responsibility. The CAMH report stated Ms. Popova was suffering from her addiction and heavily influenced by drugs at the time of the offences. I accept this mental state, though voluntarily induced, attenuates her moral blameworthiness.

[25] In addition, Ms. Popover had nothing to gain from these fires. They were not planned to obtain financial gain or benefit. They were not set to purposely harm or target a person or persons, or their property. She seemed to have no malice.

[26] The gravity of the offence is to be balanced with the specific circumstances of this offender’s blameworthiness. Given the mental condition under which Ms. Popova committed these offences, general deterrence to other likeminded individuals, ie: those who are also suffering under the influence of drugs because of an addiction is limited.

[27] As to specific deterrence, 277 days in jail for a first-time offender, is a very long time in jail. Restraint is applicable. The experience seems to have contributed to promoting a sense of responsibility and an awareness of the severity of her offences. “I’m horrified by my actions” she said to the court about what she had done.

[28] Moreover, how Ms. Popova spent her time in custody, essentially getting sober, taking counselling, completing education classes, and connecting to and making plans for her continued rehabilitation upon release demonstrated a concrete dedication to sobriety. The principle of rehabilitation is particularly strong in Ms. Popova’s case.

[29] The Crown submitted the range of sentence is 18 months to 2 years incarceration for arson. I do not disagree. However, ranges are starting points and guidelines, and I am mindful of what the Supreme Court of Canada stated in R. v. Lacasse[^5]:

There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision.

[30] The Ontario Court of Appeal in Bos upheld a trial judge’s finding that a conditional sentence was inappropriate for a “serious arson offence” and referred to Mirzakhalili also decided by the OCA.[^6]

[31] However, there are significant and relevant differences between the nature of the arson offences in those cases and the nature of the ones before me. There are also significant differences between the circumstances of those offenders, and Ms. Popova before me.

[32] In Bos, the offender was convicted after trial for deliberately setting a fire to a farmhouse while knowing there was a person upstairs in the bedroom. She did so because she was living a double life and the fire was a distraction to prevent being exposed. It was planned, deliberate and to gain advantage.

[33] In Mirzakhalili, the offender was convicted for having planned, by acquiring gasoline, unlocking deadbolted doors, clearing debris, moving a motion sensor and by-passing an alarm so as to blow up and burn his own store. He knew there were people working close by and he caused an explosion large enough to blow out the windows of the building, jeopardizing the lives of those people, in addition to the lives of the firefighters who attended to evacuate people. This was purposely done for financial gain.

[34] The fires Ms. Popova set were qualitatively different than those considered in Bos and Mirzakhalili. They were to a wall, to a floor mat, to cardboard with a cigarette, in dumpster bins. Some she extinguished herself, others small enough to extinguish themselves. There was no target, no planning, no motive to benefit or harm.

[35] In addition, in both cases, the offenders had not spent any time in custody, had demonstrated no remorse and were not challenged by mental ill health and substance addiction to attenuate their moral blameworthiness.

[36] B.R.S. is somewhat more similar to the case at bar, in that, the offender, like Ms. Popova, had a history of significant trauma, committed arson while under the influence of drugs and also pled guilty. However, he had a long and substantial criminal record, and because he was not ready or willing to accept treatment, unlike Ms. Popova, he had no insight, had poor rehabilitation prospects, and continued to pose a threat to the community.

[37] In each of those cases, specific and general deterrence were the driving sentencing objectives without the restraint and rehabilitation considerations in this case.

[38] Having before me a markedly different arson offence in terms of its “seriousness” and a young, first-time offender with mental health issues and a substance addiction who has demonstrated strong rehabilitation potential, I turn to whether a conditional sentence is available and appropriate to continue to reflect specific and general deterrence as well as enhance the rehabilitation and restorative aspects of a fit sentence for Ms. Popova.

[39] Before a conditional sentence can be imposed, I must consider the requirements for such a sentence. It must be under two years, there must not be a mandatory minimum sentence, the offence must not be an excluded one, and it must be consistent with the principles of sentencing in ss. 718 – 718.2 of the Criminal Code.

[40] The Supreme Court of Canada stated the following in Proulx[^7]:

The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence.

[41] Having served almost 9 months in jail as a first-time offender, that portion of Ms. Popova’s sentence addresses the denunciation and deterrence objectives of a fit sentence. A conditional sentence can continue to do so as well.

[42] Given Ms. Popova can live with her father, who appreciates the challenge of sobriety himself and will enforce it on Ms. Popova, a conditional sentence can reflect the principle of restraint, and further the rehabilitative and restorative objectives of sentencing a woman with insight, potential, skill, resources, and a demonstrated commitment to re-integrating into society.

[43] I find that after considering the specific nature of the offences before me, Ms. Popova’s personal circumstances, and all the relevant aggravating and mitigating factors, I conclude that further incarceration served in the community is consistent with the fundament purpose and principles of sentencing in this case.

Sentence

[44] On July 14, 2021, Popova’s pre-sentence custody of 277 days was enhanced to 14 months, and she was ordered to serve an additional 4-month Conditional Sentence on the Arson charge, a concurrent 30-day Conditional Sentence on the Fail to Comply with a Release charge, and a concurrent 4-month Conditional Sentence on the Mischief charge. A 3-year probation order was made as was a DNA order and a s. 109 Criminal Code weapons prohibition for 10 years. The victim fine surcharge was waived.

[45] In addition to the statutory terms, Ms. Popova is to serve her Conditional Sentence at her father’s home, under house arrest terms with exceptions as delineated in the Order, report to her supervisor, possess no incendiary devices, explosives or weapons, not be within 15 metres of the addresses she lit fires at, attend assessments and counselling for mental health, substance abuse, alcohol abuse, life skills and any other counseling directed by her supervisor as well as sign waivers so that her supervisor can monitor her attendance and progress in such counselling.

[46] These terms are replicated in the probation order but for the house arrest conditions.

Released: July 26, 2023 _______________________________

Justice Cidalia C. G. Faria

[^1]: Exhibit 1: Pre-Sentence Report, June 21, 2023, by Anna Baran.

[^2]: Exhibit 2: Centre for Addiction and Mental Health (CAMH) Report, June 16, 2023, by Dr. A. Iosif.

[^3]: Exhibit 3: The Jean Tweed Centre, Letter, February 3, 2023, by Darina Biasia. Exhibit 4: YMCA of Hamilton/Burlington/Brantford Employment, Training and Settlement Services, Certificate, Literacy I: Reading Module, February 6, 2023. Exhibit 5: YMCA of Hamilton/Burlington/Brantford Employment, Training and Settlement Services, Certificate, Business 101 Module, February 6, 2023. Exhibit 6: The Jean Tweed Centre, Letter, November 30, 2022 by Karina Biasia. Exhibit 7: Building Up, Letter, undated, Marc Soberano. Exhibit 8: UNB/Humber, Collaborative Bachelor of Nursing Program, Certificate, Addiction, Nutrition and Fitness Health Fair, November 22-23, 2022. Exhibit 9: new Life Ministries, Correspondence Sources, Christmas, Freedom, December 19, 2022 and November 18, 2022. Exhibit 10: Vanier Centre for Women, Program Attendance Record, December 2022. Exhibit 11: Ministry of the Solicitor General Vanier Centre for Women, Certificate, The Independent Life Skills Work Booklet part 3, December 29, 2022. Exhibit 12: Ministry of the Solicitor General Vanier Centre for Women, Certificate, The Independent Life Skills Work Booklet, part 2, December 29, 2022. Exhibit 13: Ministry of the Solicitor General Vanier Centre for Women, Certificate, The Independent Life Skills Work Booklet, part 1, December 29, 2022.

[^4]: R. v. Bos, 2016 ONCA 443; R. v. Mirzakhalili, 2009 ONCA 905; R. v. B.R.S., 2011 ONCJ 484; R. v. Williams, 1985 113 (ON CA), 50 O.R. (2d) 321

[^5]: R. v. Lacasse, 2015 SCC 64, at para 58

[^6]: Bos at ¶127.

[^7]: R. v. Proulx, 2000 Supreme Court of Canada 5 at ¶22.