Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2024 06 26 COURT FILE No.: Sault Ste. Marie 23-13301665, 24-13300116

BETWEEN:

HIS MAJESTY THE KING

— AND —

GRAHAM SEAN ST. PIERRE

Before: Justice Romuald Kwolek

Heard on: May 17, 2024 Reasons for Judgment released on: June 26, 2024

Counsel: Andrew Allen, counsel for the Crown Tahnee Carabello, counsel for the defendant Graham St. Pierre

KWOLEK J.:

Introduction

[1] The offender pled guilty to counts 1, 2, and 3 on information number 23-13301665 relating to incidents that occurred on August 16, 2023, namely:

a) Mischief under $5,000.00 contrary to section 430(4) of the Criminal Code relating to damage to two tires of a vehicle owned by his former intimate partner and tires of a trailer. The offender used a knife to puncture the tires of those vehicles. A portion of the knife was broken off in one of the tires.

b) Break and enter into the home of the victim. No one was home in the residence when the break and enter occurred.

c) Arson, contrary to section 434 of the Criminal Code. The offender entered the home of his intimate partner which had been vacant for the evening as neither the female owner nor her children were home for the night. The fire was caused when the offender, who appeared to be stumbling around and likely intoxicated, entered the home and placed toilet paper on the stove and turned the stove on, which toilet paper caught fire, which fire spread to the home causing significant damage to the home.

[2] Estimates of damages for repair of the home were provided to the court by Service Master in the amount of $244,520.74 including, materials, profit, overhead and taxes plus emergency repairs in the amount of $6,217.29 provided by Winmar for a total damage claim of $250,738.03 for the arson. That is the amount of restitution sought by the Crown to be paid by the offender to the insurance company. All of the repairs have not yet been completed and the exact amount of payments made by the insurance company as a result of the arson has not yet been finally determined. The accused questioned the amount of such damages but lead no evidence to contradict such evidence. The court finds that the damage was substantial and, in any event, was greater than $200,000.

[3] With respect to the damage to the tires, an invoice was provided from OK Tire in the amount of $462.06, ostensibly for the damage to the tires of the former intimate partner’s vehicle plus an invoice from Total Tire Sales and Service for $259.34 for repair for tires to the trailer.

[4] In addition, the offender pled guilty to counts 10 and 11 on information 24-13300116, being breaches of his release condition dated August 16, 2023 by communicating with the former intimate partner and carrying an incendiary device on his person, namely a lighter. Although he did not plead guilty to the charge of threatening to kill his former intimate partner and another individual on January 16, 2024, those facts were included and read into the record as part of the factual background regarding the two breaches pled to by the offender.

Legal Issues

[5] The Crown and defence counsel provided a “joint position” with respect to the period of incarceration, terms of probation to follow as well as other ancillary orders.

[6] The only area of contention was regarding the issue of what quantum the court should order to be paid as restitution.

[7] Since restitution is a part of the overall sentence, this court is not bound by the law as it deals with joint submissions that are placed before the court, as in law, this position is not a joint position, as there is no agreement as to the disposition between the Crown and defence counsel.

[8] The court was also concerned about the terms of the probation order proposed given issues of intimate partner violence and coercive control.

Evidence

[9] At the sentencing hearing, an exhibit book was provided which provided:

1. an invoice for the emergency repairs in the amount of $6,217.29 plus an estimate of damages to repair the home in the amount of $244,520.74 for a total claimed loss by CAA Insurance Company dated October 5, 2023 in the amount of $250,738.03.

2. an invoice dated August 16, 2023 from OK Tire to Marty Humphries for new tire sale and installation for a 2021 Chev Colorado in the amount of $462.06. A second invoice was provided from Total Tire dated September 13, 2023, it appears, for the two trailer tires in the amount of $259.34.

3. photographs of the damage to the home and contents as a result of the arson;

4. photos or a screen shot of communications, admittedly from the offender to his former intimate partner.

[10] The court was also provided with two victim impact statements (VIS) including a VIS from J.C. an individual who was threatened by the offender as well as a VIS from the former intimate partner T.M.

[11] The former intimate partner cried throughout the time that she read her VIS as did the offender during her reading of the VIS and during his own comments when he apologized for his actions. He sobbed uncontrollably during much of the proceedings.

[12] In her VIS, the former intimate partner of the offender appeared ambivalent as to whether or not there should be restrictive or protective conditions for herself as the victim stated:

…I want to be able to talk to him and see him, I love this man and probably always will. But I am also scared if I don’t request any [conditions] that this will all happen again with a possible worse outcome. I would like to request that he be allowed to call me or write me if he chooses at this time. As for contact when he is released, I don’t know how I feel yet. I am still in the grieving and healing process.

[13] The former intimate partner also expressed concerns that these events occurred when the offender was under the influence of alcohol and the offender should get treatment for his alcohol addiction and “must refrain from using alcohol”, as well as getting counselling through PAR to deal with his jealousy and insecurities as well as psychotherapy.

The Offender

[14] The offender is currently 50 years of age. He has a dated criminal record which includes offences from 1992 until 2005. He has not had any criminal convictions for almost 20 years.

[15] He does have previous convictions for violence. In 1992, he was found guilty of mischief and was placed on probation.

[16] In 1995, he was convicted of assault and mischief and received fines for those offences.

[17] In 2005, he was convicted of assault and threatening which also involved intimate partner violence. He received a suspended sentence and 12 months probation.

[18] The only previous period of incarceration on his record is a 15-day sentence in 1994 for an offence of possession of property obtained by crime.

[19] The offender has a daughter and grandchildren. He apparently owns no assets and lives at the home of his daughter. While he will be incarcerated, he will have no income.

[20] He does have a limited work history doing some painting and home improvement work. He has expressed a desire to make a restitution order during his period of probation, at least for the damages to the tires, even though counsel for the offender initially expressed concern that he would not be able to pay even that moderate amount of $721.40 that was to be paid by the end of the proposed two-year probationary period. Following a break to allow counsel to speak to her client, counsel was able to advise that the offender actually has some job prospects following his release, and would therefore be capable of making some payments towards an order for restitution.

[21] The offender is an alcoholic and this incident has been described as a wakeup call for him. While in custody, he has completed some programming for anger management and substance abuse. Following the incident, he reports that he has been sober attending AA meetings. During his period of incarceration, he has been subject to numerous lockdowns and crowded conditions in the institution.

[22] He has expressed remorse for the offences, sobbing uncontrollably during a good portion of the proceedings.

[23] His relationship with the former intimate partner appears to have been a toxic one fueled by his alcohol addiction, controlling behaviour and feelings of jealousy. As is often the case in examples of intimate partner violence, the victim often has ambivalent feelings about the offender. In her victim impact statement read to the court, the victim described her continued love for the offender and had repeated contact and communication with him when he was out of custody after the initial arson and mischief charge, even though the offender was subject to a no contact order with her. Her ambivalent feelings came through very strongly in her victim impact statement and her attendance at court.

Aggravating Factors

[24] The aggravating factors of this case include:

1. It is a statutorily aggravating factor that the incident of arson was an example of intimate partner violence: (718.2 (a)(ii))

2. It is a statutorily aggravating factor that the offences for which the offender is convicted had a significant impact on the victims as evidenced by the two victim impact statements as presented to the court: (718.2 (a) (iii.1))

3. The offence of arson is itself a serious offence which caused extensive damage to property and put the lives of firefighters and others in the area of risk of injury.

Mitigating Factors

[25] Mitigating factors that must be considered:

1. The pleas of guilt saved the court a considerable period of time in prosecuting this matter.

2. The offender expressed feelings of remorse and demonstrated such remorse during the sentencing hearing.

3. The offender, when he set the blaze, appeared to be under the influence of alcohol and is an alcoholic which would reduce, to some extent, his moral blameworthiness.

4. He has been proactive in taking programming that is available to him in the institution.

Legal Analysis

[26] The Crown requested that the offender be required to pay the full amount of the loss as restitution while recognizing that the Court had the discretion to order all or a part of such loss or that no restitution be ordered. The Crown took the position that a significant amount of restitution should be ordered, and that the length of the period of incarceration, as submitted by the Crown, was premised on a significant amount of restitution being ordered.

[27] The defence ultimately took the position that no restitution order should be made by the court for the arson, citing the inability of the offender to pay the restitution.

[28] Defence counsel suggested that the offender has no ability to pay the restitution in the present, or in the foreseeable future, or ever, if the award would be in the amount of $250,000 given his lack of resources and earning capacity. He owns no significant assets and does not anticipate any change in his financial situation. It was submitted that an order for restitution would interfere with the offender’s rehabilitation.

[29] The current relevant provisions dealing with restitution are reproduced below:

737.1 (1) If an offender is convicted or is discharged under section 730 of an offence, the court that sentences or discharges the offender, in addition to any other measure imposed on the offender, shall consider making a restitution order under section 738 or 739.

(2) As soon as feasible after a finding of guilt and in any event before imposing the sentence, the court shall inquire of the prosecutor if reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages, the amount of which must be readily ascertainable.

(3) On application of the prosecutor or on its own motion, the court may adjourn the proceedings to permit the victims to indicate whether they are seeking restitution or to establish their losses and damages, if the court is satisfied that the adjournment would not interfere with the proper administration of justice.

(4) Victims and other persons may indicate whether they are seeking restitution by completing Form 34.1 in Part XXVIII or a form approved for that purpose by the lieutenant governor in council of the province in which the court is exercising its jurisdiction or by using any other method approved by the court, and, if they are seeking restitution, shall establish their losses and damages, the amount of which must be readily ascertainable, in the same manner.

(5) If a victim seeks restitution and the court does not make a restitution order, it shall include in the record a statement of the court’s reasons for not doing so.

2015, c. 13, s. 29

738 (1) Where an offender is convicted or discharged under section 730 of an offence, the court imposing sentence on or discharging the offender may, on application of the Attorney General or on its own motion, in addition to any other measure imposed on the offender, order that the offender make restitution to another person as follows:

(a) in the case of damage to, or the loss or destruction of, the property of any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount not exceeding the replacement value of the property as of the date the order is imposed, less the value of any part of the property that is returned to that person as of the date it is returned, where the amount is readily ascertainable;

Ability to pay

739.1 The offender’s financial means or ability to pay does not prevent the court from making an order under section 738 or 739.

2015, c. 13, s. 30

739.2 In making an order under section 738 or 739, the court shall require the offender to pay the full amount specified in the order by the day specified in the order, unless the court is of the opinion that the amount should be paid in instalments, in which case the court shall set out a periodic payment scheme in the order.

2015, c. 13, s. 30

741 (1) An offender who fails to pay all of the amount that is ordered to be paid under section 732.1, 738, 739 or 742.3 by the day specified in the order or who fails to make a periodic payment required under the order is in default of the order and the person to whom the amount, or the periodic payment, as the case may be, was to be made may, by filing the order, enter as a judgment any amount ordered to be paid that remains unpaid under the order in any civil court in Canada that has jurisdiction to enter a judgment for that amount, and that judgment is enforceable against the offender in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.

[30] The legislation was amended in 2015, which specifically did not prevent the making of an order for restitution due to the offender’s financial inability to pay such restitution order.

[31] Section 178 of the Bankruptcy and Insolvency Act, RSC 1985, chapter B-3 reads as follows:

178 (1) An order of discharge does not release the bankrupt from any fine, penalty, restitution order or other order similar in nature to a fine, penalty or restitution order, imposed by a court in respect of an offence, or any debt arising out of a recognizance or bail;

[32] A criminal order for restitution survives bankruptcy.

[33] The offence of arson is a serious offence where the principles of denunciation and deterrence play a significant role. However, in this case the principles of restraint and rehabilitation of the offender must also be considered.

[34] The case law is clear that an order for restitution should not be considered as an afterthought or made mechanically but should be carefully considered within the overall sentence to arrive at an appropriate and just sentence. (R. v. Castro, 2010 ONCA 718, R. v. Moulton, 2018 NBCA 19.)

[35] Although the legislative amendments passed in 2015 specifically stated that an offender’s financial means or ability to pay does not prevent the court from making a restitution order, the financial situation of the offender is still a factor that the court may consider in fashioning an appropriate sentence.

[36] Case law that predated the amendments will still be relevant in determining the factors that the court may consider in ordering restitution.

[37] R. v. Moulton, supra cited the decisions of R. v. Devgan, [1999] O.J. No. 1825 (CA) and R. v. Siemens, [1999] M.J. No. 285 (CA.) which set out relevant factors to be considered when ordering restitution. The Ontario Court of Appeal in R. v. Castro, (2010) ONCA 718 also examined relevant factors that pre-dated the 2015 amendments.

[38] The court accepts the following factors as relevant in the circumstances of this case:

1. the means of the offender to pay;

2. impact of the restitution order upon the rehabilitation of the offender;

3. given the discretion to order full or partial restitution, whether a particular amount of restitution would be appropriate as part of a criminal sentence;

4. whether the sentence, including the restitution order, is a fit sentence.

[39] The court must also consider the provisions of section 718 setting out the principles of sentencing which include, not only denouncing and deterring others and the offender, (718 (a) and (b)), rehabilitation of the offender (718(d)), but under sections 718 (e) and 718(f) to provide reparations for harm done to victims or to the community and to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims or to the community.

[40] This offence of arson not only had an impact on the former intimate partner and her family but, as is the case, especially with serious criminal offences such as arson, also had an impact on the community at large. There is also a financial impact on the community as the public pays higher insurance premiums if losses paid out by insurance companies increase.

[41] In Moulton, supra, the court imposed a custodial sentence of three years imprisonment on Mr. Moulton as a result of him burning down a number of camps for personal gain. In that case the appellate court vacated the order for restitution.

[42] In R. v. Vance, (2022) ONSC 5852 the court imposed a jail term of 5 years where there were persons present in the home when the offender lit a fire. The facts in that case are much more serious than in our case.

[43] In R. v. Popert, (2010) ONCA 89, the Ontario Court of Appeal upheld a 9-month jail sentence for a youthful 22-year-old first offender for an arson that he set at the request of the homeowner. The offender did not benefit financially from the arson. In that case, the Court of Appeal set aside an order for restitution to the insurance company. The homeowners benefited from the arson and the appellate court determined that the jail sentence was a sufficient penalty and an order for restitution was not necessary as part of a just sentence.

[44] In R. v. James-Davies, (2023) BCSC 2385, a 34-year-old pled guilty to recklessly setting a fire. The offender suffered from mental health disorders and the damage from the fire was approximately $100,100. The offender was sentenced to a period of 18 months jail. Restitution was ordered for approximately $10,000.

[45] The judge in that case stated:

As to restitution, it is clear that Mr. James-Davies has very limited ability to pay a restitution in any amount at present. It is also clear that this is unlikely to change in the future in any significant way, hopeful though Mr. James-Davies properly is of returning to the work force.

57 An order for restitution could be valuable for Mr. James-Davies' rehabilitation, as well as important in acknowledging the harm his conduct has done to the victims of his offence. However, an order in the full amount sought would have a crushing effect, effectively undermining his prospects of rehabilitation, and, coupled with the period of imprisonment, excessive in the totality.

[46] Given the aggravating and mitigating factors in this case the court finds that the period of incarceration that was jointly proposed by the Crown and defence counsel is within an appropriate range for this offender and the offences committed. However, the court finds that the sentence is on the lower range of the spectrum for the serious offence of arson in an intimate partner case.

[47] The court finds that a significant amount of restitution in the amount of $25,000, is not excessive and the offender can be reasonably expected to repay that amount over an extended period of time, given information provided to the court at his sentencing hearing. Such an order for restitution would be part of an appropriate sentence that would include the 19 months jail sentence as proposed. Such an order for restitution would not impede the rehabilitation efforts of the offender. He has no dependants at this time and has worked in the past and has an ability to make some contributions to the loss suffered by the victim once he is in a position to return to work. As expressed by the judge in R. v. James-Davies, supra, the full amount of the damages, the court finds, would have a crushing effect, would undermine his prospects of rehabilitation, and coupled with his period of imprisonment and probation order, would be an excessive sentence.

[48] Given the provisions of section 741(1) of the Criminal Code, and the court’s desire that the offender repay the orders of restitution proposed to be included in the probation order to the specific victim, where he would face criminal sanctions for not paying such restitution, the court orders that such restitution of $25,000 should be made by December 31, 2028, at which time the corporate victim may proceed to enforce any civil remedies for collection of the unpaid balance of my restitution order. The effect of my order, pursuant to section 741(1) of the Criminal Code, will be to delay the period of time that the corporate victim can enforce my order for restitution in the amount of $25,000. It does not bar the victim from commencing other civil proceedings for collection against the offender.

[49] The imposition of the restitution order together with the period of incarceration and probation is a sentence that meets the sentencing provisions of the Criminal Code, is proportionate to the gravity of the offence and the degree of responsibility of the offender, recognizes the aggravating and mitigating factors, expresses denunciation and deterrence as well as advancing rehabilitation through the probation order while providing at least some reparations to the victims. Given the orders that I have made, I will not order any victim surcharges to be paid. I find such an order for victim surcharges would cause the offender undue hardship and would not be appropriate given my two other orders for restitution.

[50] The court has no difficulty imposing a probation order to assist in the rehabilitation of the offender. The court is concerned about the comments made by both the offender and the victim in this case. Although both admit to their ongoing love for one another, both admit to the problems and difficulties in their relationship that have led to serious criminal charges against the offender.

[51] I am not satisfied that simply leaving it up to the victim in her discretion to decide if she wants contact with the offender following the offender’s release is the best approach, given the issues with respect to their interpersonal relationship. They have both demonstrated that they are prepared to breach court orders to continue their dysfunctional relationship without equipping themselves with the necessary tools, in advance, to sort out their problems. If they wish to either continue their relationship, or move on with their lives, and hopefully in the best interests of their future potential partners, they need to access services to deal with their outstanding issues first.

[52] The starting point shall be a non-communication order and an order that the offender not attend within 100 metres of the victim.

[53] For the first year, there shall be no communication and non – contact conditions between the victim and the offender. No 743.21 order was requested by the Crown and the victim specifically requested that she be allowed to communicate with the accused when he is in custody. As a result, I will decline to make any 743.21 order.

[54] The offender shall attend counselling for substance abuse, domestic violence, for psychiatric issues and any other counselling regarding interpersonal relationships. It is much easier to stay sober while in custody and I hope the offender will attend whatever treatment is necessary to help him stay sober. The evidence before the court seems to indicate that he is an alcoholic and although I appreciate that his struggles with substance abuse are struggles that he will face every day for the rest of his life, he needs to access additional programming before he should resume any existing relationship or new relationships.

[55] In addition, the offender needs to deal with the issues that have led to the act of domestic violence and coercive control of an intimate partner.

[56] I recognize the concerns and the warning signs of intimate partner violence and coercive control in this case. I know the victim has started counselling and I hope she will continue to do so.

[57] After a year has passed following the offender’s release from custody, the court will permit contact between the offender and the victim with the expressed written revocable consent of the victim, T.M.

[58] There will also be a condition that the offender not molest, harass or physically interfere with the victim.

[59] There will be a further condition, for the entire period of the probation order, that there shall be no contact by the offender with the victim TM when he has consumed alcoholic beverages or drugs or is under the influence of any substance.

[60] The court’s sentence will be as follows on information 23-13301665:

1. count 3, arson, 19 months jail or the equivalent of 570 days jail, less pre-sentence custody of 161 days giving credit for an additional 81 days or 242 days, leaving a remainder of 328 days to serve from today’s date;

2. count 1 - mischief under $5000 will be 30 days concurrent;

3. count 2, the break and enter will be 180 days concurrent.

There will be a recommendation by this court at the request of the accused that he serve the balance of his sentence at either the Ontario Correction Institute in Brampton or at the Algoma Treatment and Remand Centre in Sault Ste. Marie.

[61] On information # 24-13300116:

1. count 11, failure to comply with the release order, the sentence shall be 1 day time served;

2. count 12, failure to comply with the terms of the release order, 1 day time served plus 2 years probation with the following terms and conditions:

3. There will be a requirement that the offender report to the probation office within 2 working days of his release from custody and after that date, as directed.

4. The offender shall not communicate directly or indirectly by any physical electronic or other means with TM or JC.

5. The offender shall not attend within 100 metres of any place that he knows TM or JC to live, work, go to school, frequent or any place that he knows them to be except for required court attendances.

6. The offender shall not molest, harass or physically interfere with the victim, TM.

7. The offender shall have no contact at any time with the victim, TM, when he is under the influence of alcohol or drugs and shall not consume any alcohol or drugs in TM’s presence.

8. After the first year of the probation is completed, the offender shall only be entitled to have contact or come within 100 metres of TM with the prior written revocable consent of TM filed in advance by TM with the probation officer or the assigned probation officer. This may be cancelled by TM in any manner at any time.

9. The offender shall not possess any incendiary devices.

10. The offender shall not possess any weapons as defined by the Criminal Code.

11. The offender shall pay restitution in the amount of $721.40 payable to the Minister of Finance for the benefit of Marty Humphries.

[62] In addition, there shall be a number of ancillary orders.

[63] The offender shall forthwith provide a sample of his DNA on the break and enter charge, count 2 on information 23-13301665. I decline to order DNA on any other counts. I also decline to order any victim surcharges.

[64] There will be a mandatory firearms prohibition order pursuant to section 109 on both the arson and the break and enter counts, for a period of 10 years.

[65] There will be a stand-alone restitution order which order shall be paid by December 31, 2028, in the amount of $25,000 payable to the Ministry of Finance for the benefit of CAA 60 Commerce Valley Drive, Thornhill, Ontario L3T 7P9.

[66] The balance of the counts, if they have not yet been dealt with, shall be withdrawn at the request of the Crown.

Released: June 26, 2024 Justice R. Kwolek Ontario Court of Justice