Court File and Parties

Date: October 1, 2024 Court File Nos: 21-1524, 21-0405, 21-1443, 22-0105, 23-37100675, 23-37200114, 22-011 Ontario Court of Justice

Between: His Majesty The King

-And-

Timothy Godin

Before: Justice M. G. March

Submissions heard on: April 30 and May 30, 2024 Reasons for Sentence released on: October 1, 2024

Counsel: Richard Morris, Crown Counsel Jason Gilbert, Counsel for Mr. Godin

March, M.G., J.:

Introduction

[1] On April 30, 2024, Timothy Godin pleaded guilty before me to numerous offences as follows:

a) personation contrary to s. 403(1)(d) of the Criminal Code of Canada (“the Code”), b) failure to stop a vehicle and remain after being involved in an accident resulting in bodily harm to another person contrary to s. 320.16(2) of the Code, c) dangerous operation of a vehicle causing bodily harm contrary to s. 320.13(2) of the Code, d) breach of an undertaking for communicating with Kailyn Lair contrary to s. 145(4)(a) of the Code, e) driving a vehicle in excess of 50 km/hr. contrary to s. 172(1) of the Highway Traffic Act (“HTA”), f) driving while suspended contrary to s. 53(1) of the HTA, g) failing to surrender an insurance card while driving contrary to s. 3(1) of the Compulsory Automobile Insurance Act (“CAIA”), h) dangerous operation of a vehicle contrary to s. 320.13(1) of the Code, i) operating a vehicle with alcohol in his body in excess of 80 mgs. per 100 mls. of blood contrary to s. 320.14(1)(b) of the Code, and j) arson causing damage to a vehicle and a dwelling house contrary to s. 433(a) of the Code.

[2] The offences were committed over the span of roughly two years during a period when Mr. Godin found himself in the grip of alcoholism and cocaine use.

[3] For various reasons, chief amongst them, Mr. Godin’s accruing charges spanning March 23, 2021 to June 25, 2023, his six month stay at a sober living facility, the time it took to have a Sexual Behaviours Assessment (“SBA”) prepared April 3, 2023, and a Pre-Sentence Report (“PSR”) submitted March 11, 2024, as well as counsel unavailability, the sentencing was delayed inordinately for some six months.

Circumstances of the Offences

[4] The facts giving rise to the offence committed by Mr. Godin are as follows:

March 23, 2021 - Dangerous Operation of a Motor Vehicle Causing Bodily Harm and Failure to Stop at the Scene of an Accident Resulting in Bodily Harm

[5] At the time of commission of these offences, Mr. Godin was 36 years old.

[6] Police were called to a residence located at 132 Craig St. in Pembroke. They located an injured male, Ben Stalkie, who had a large contusion (“a goose egg”) on his forehead and a laceration to his left hand. Mr. Stalkie was unable to speak to police due to his injuries. An ambulance arrived on scene to attend to Mr. Stalkie.

[7] Police learned from speaking to witnesses on scene that Mr. Godin and Ms. Lair had been involved in a domestic relationship for six months. It had ended roughly three weeks prior.

[8] Mr. Godin drove to the house where he believed Ms. Lair was staying. Several guests within the home went outside to confront Mr. Godin. The guests asked him to leave.

[9] The victim, Mr. Stalkie, was walking toward the vehicle which Mr. Godin was operating. Mr. Godin was overheard to say he was going to hit him (Mr. Stalkie). The witnesses/guests heard the revving of the engine. Next, Mr. Godin drove forward striking Mr. Stalkie, who landed on the hood and remained there until he fell onto the shoulder of the road.

[10] Police later learned that Mr. Stalkie suffered a concussion. He received stitches to close the cut to his elbow. He also had “road rash” on his abdomen, face and elbows.

[11] Mr. Godin left the scene in his vehicle, but later turned himself into police on April 22, 2021. He was released on an undertaking given to police to comply with certain conditions.

Nov. 11, 2021 - Breach of Undertaking

[12] One of the conditions imposed upon Mr. Godin on April 22, 2021 required him not to have any contact with Ms. Lair. Notwithstanding, he was with her on November 11, 2021.

[13] According to Ms. Lair, Mr. Godin drove off with her phone in his vehicle. She then contacted police for assistance and Mr. Godin was subsequently charged.

Dec. 5, 2021 - Personation

[14] While police were investigating Ms. Lair for a potential impaired driving offence on December 5, 2021, Mr. Godin was her front seat passenger. When asked by police to identify himself, Mr. Godin lied and told them he was his twin brother, Thomas Godin.

[15] The following day, when Mr. Godin attended at the police station, he was challenged by police that he had provided them with a false name the previous evening. Mr. Godin admitted he had misled them. Consequently, he was charged.

Jan. 14, 2022 - Dangerous Operation, Driving in Excess of 50 kms/hr. Above the Speed Limit, Driving While Suspended and Failure to Surrender an Insurance Card

[16] On the day in question, police were conducting radar surveillance for speeders on Highway 17 in the Pembroke area. Mr. Godin was pulled over while operating a 2007 Toyota Camry travelling at a high rate of speed. When signaled by Constable Bennett to pull over, Mr. Godin did so. Mr. Godin was then discovered to be a suspended driver.

[17] Prior to receiving his tickets for speeding, driving while suspended and failing to surrender proof of insurance, Mr. Godin fled. He was pursued by police. At one point, the radar device calculated that Mr. Godin was travelling at 172 kms/hr. in a 90 kms/hr zone. Ultimately, the police called off their pursuit. Three vehicles were forced off the highway to avoid collision with Mr. Godin’s.

[18] Police eventually located Mr. Godin at his residence, and he was charged accordingly.

Mar. 19, 2023 - Driving a Motor Vehicle with a Blood Alcohol Concentration in Excess of 80 mgs in 100 mL of Blood

[19] At or about 12:30 AM on March 19, 2023, police discovered a truck which had driven into a field off Mine View Road in the Cobden area.

[20] Police followed the trail taken by its driver in an effort to locate him or her. They later found Mr. Godin hiding in his garage.

[21] Mr. Godin was arrested and taken to the police detachment. Breath testing revealed that he had a concentration of alcohol in his blood when twice tested of 190 mgs. of alcohol in 100 mL of blood, and later 180 mgs. of alcohol in 100 mL of blood respectively.

June 25, 2023 - Arson

[22] On the evening in question, Mr. Godin had been drinking to excess. He took offence to the attention being paid by Tim Coderre to his former partner, Tasha Wallace.

[23] Mr. Godin used a Molotov cocktail to cause the 2018 F150 pickup truck belonging to Mr. Coderre to explode. The vehicle was completely engulfed in flames. 911 was called.

[24] The fire spread and destroyed the home belonging to Mr. Coderre as well. Firefighters awoke Mr. Coderre in his bed and told him to vacate.

[25] The damage caused to Mr. Coderre’s residence located at 1633 Mine View Rd., Cobden resulted in a payout by his insurer in the sum of $320,247.15.

[26] Another Molotov cocktail was found by police between Mr. Coderre’s residence and Mr. Godin’s home.

Circumstances of the Offender

[27] At present, Mr. Godin is 40 years old. He has a dated, unrelated criminal record from 2007 for escaping lawful custody and possessing an illegal substance for the purpose of trafficking for which he received a $2000 and a $300 fine respectively, as well as 18 months of probation.

[28] He candidly admitted through his counsel that he is both an alcoholic and a drug addict. His recent spate of offending is directly linked to substance abuse.

[29] Following his arrest for the most serious offence of arson on June 25, 2023, Mr. Godin spent 50 days in jail before being released on bail on August 10, 2023 to reside at the Anchorage Drug and Alcohol Treatment Program in Ottawa. He graduated from the program on January 10, 2024, but remained a further three weeks at the sober living facility until January 30, 2024.

[30] He has since resided in the Cobden area with a friend acting as his surety, and he is subject to, amongst other conditions, house arrest with the usual exceptions and GPS monitoring.

[31] The author of the Presentence Report (“PSR”) prepared on behalf of Mr. Godin indicated that his father too was an alcoholic. His father separated from his mother, Jennifer Godin-Tabbert, when Mr. Godin was only seven years old. His mother’s second husband, Terry Tabbert, Mr. Godin identifies as his true “father”.

[32] Mr. Godin struggled in school over the years with reading and writing. He eventually dropped out of high school two credits shy of graduating. At age 24, he completed the last two credits to obtain his diploma.

[33] Mr. Godin married his high school girlfriend and had three children with her, a daughter born in 2010, and two sons born in 2012 and 2013 respectively. In July 2020, Mr. Godin’s marriage ended when he received a telephone call from his neighbour advising him that his wife was packing up their house. His wife attributed the need to separate from him to his alcohol consumption.

[34] Sadly, he has not seen his children since being charged in June 2023, presumably after his wife heard of the serious arson offence he had committed. Despite this measure taken by this former wife, Mr. Godin described her as a “a good mother”. He intends to pursue access to his children whenever he can at the conclusion of his criminal matter.

[35] At about age 28, Mr. Godin began smoking cannabis. When he moved home following his separation from his spouse, he started to smoke more heavily at the rate of roughly two grams per day. This pattern of use continued until his arrest on June 25, 2023. Since his release from custody, he has self-reported his abstention from drug and alcohol use.

[36] Regarding troubles with substance use and addiction, Mr. Godin informed his PSR author that he began drinking when he was 18 years old. He would not wish to miss work, so he restricted his drinking to weekends, roughly consuming 24 beers over that time frame.

[37] When his wife left him, Mr. Godin increased his alcohol consumption to daily, at first having 12 to 18 beers, along with whiskey. Not surprisingly, when he did so, his PSR author observed:

“His life spiraled out of control. He began experiencing blackouts and would regularly drive when intoxicated.”

[38] In 2021 around the time of the divorce from his ex-wife, Mr. Godin advised his assessor, Dr. Neil de Laplante, and the author of his section 21 Mental Health Act report, that he began using cocaine with his then girlfriend, Ms. Lair. However, he indicated his fear of using anything like those substances in future because of “contamination and overdoses”. For several months, he had used it “every weekend”.

[39] Mr. Godin also told Dr. de Laplante that he had also abused OxyContin for a couple of years in his late teens from about ages 17 to 19. This pattern of use then increased to “a couple of pills per day for 10 years” until his future wife “straightened [him] out”. However, after the marriage ended, he returned to OxyContin consumption at about the same amount for one year, stopping sometime in the summer of 2022.

[40] Mr. Godin informed Dr. de Laplante that he always experienced chronic low mood in the sense that he never felt “good”. Dr. de Laplante’s diagnostic impression of Mr. Godin was that he suffered from:

a) alcohol use disorder, severe, in remission, b) stimulant use disorder, severe, in remission, c) opioid use disorder, severe, in remission, d) persistent depressive disorder, and e) disruption of family by separation or divorce.

[41] Dr. de Laplante concluded that Mr. Godin had genetic loading for anxiety, depression and substance use disorders. He believed he would benefit from “a trial of Naltrexone, a medication which blocks the reward pathway and reduces both the cravings for alcohol and pleasure when it is consumed. This has the effect that even if someone drinks alcohol, they drink less and generally do not become intoxicated or as intoxicated.”

[42] The doctor also recommended consideration of a first-line SSRI antidepressant such as Sertraline or Escitalopram for his chronic symptoms of depression. He believed that “a substance use condition could be beneficial should Mr. Godin be released into the community”.

[43] Mr. Godin’s stepfather, Mr. Tabbert, told the author of the PSR that Mr. Godin’s mother and he tried to support Mr. Godin as best they could while he resided with them. They “locked up, padlocked and chained all their alcohol”, but Mr. Godin kept finding ways to break into it and drink it.

[44] Mr. Godin reported that on the night of his final arrest, he was highly intoxicated. Once apprehended by police and jailed, he began to suffer withdrawal symptoms almost immediately.

[45] Rhoda Bridgman, Mr. Godin’s addiction worker at the Anchorage Addiction Services Program detailed for the author of this PSR what his five months of residential treatment consisted of. Mr. Godin would attend for weekly AA/NA meetings off-site. There were as well three weekly processing groups, weekly individual counselling sessions, weekly educational classes offered through the John Howard Society, weekly educational classes on personal growth, as well as weekly in-house educational classes that included topics such as boundary setting, relapse prevention, weekend planning, motivation, mindfulness and active recovery.

[46] Ms. Bridgman added that Mr. Godin was “not overly motivated to use his free time in an active productive manner, rather choosing to sit quietly watching television”. There were times when he needed to be pushed to accomplish some tasks, but he was never noncompliant with the demands of the program.

[47] Mr. Godin found the program to be “very beneficial” to him by providing him with new coping skills to avoid substance abuse.

[48] Ms. Bridgman noted that an aftercare plan must be completed for participants at the conclusion of the program. They are expected to attend 12-step meetings and to find a sponsor at one of those meetings. However, Mr. Godin did not connect with a local agency, the Pathways Alcohol and Drug Treatment Program, upon his release from the Anchorage facility in Ottawa. He did not start attending AA meetings. He advised he was intending to start, but up to the time of sentencing submissions last being made on May 30, 2024, Mr. Godin had not done so.

[49] Mr. Godin’s PSR concluded that he had made commendable efforts to distance himself from his drinking buddies, “but alcohol use within his family is pervasive. Many offences occurred while staying at his family home. His family reported that they support his sobriety and his need to remain sober, but they appear to lack the education and information to do so effectively. They would require their own serious lifestyle changes.”

[50] To his credit, Mr. Godin has always been a hard worker as a mechanic for 12 years, and later an underground utility construction worker for 8 years. Since his release from custody, he has been employed for several months by Danny’s Taxi Inc. doing mechanical work, where he had proven to be “reliable and trustworthy”. He has also worked in the same capacity for Roxanne and Lloyd Hopper. He has been free of any brushes with the criminal justice system since the end of June 2023.

Crown’s Position on Sentence

[51] Crown counsel seeks a period of incarceration of five years. Alternatively, the Crown submitted that a two-year sentence to be followed by 3 years of probation would suffice.

[52] Denunciation and deterrence are the salient sentencing principles to be taken into account by the Court. The provision of a conditional sentence ought not to be considered an option. (see R. v. Mirzakhalili, 2009 ONCA 905) They are, as Crown counsel put it, “not appropriate for serious arson offences”.

[53] The Crown emphasized that Mr. Godin is a dangerous man. Mr. Coderre and Ms. Wallace, Mr. Godin’s victims, are petrified at the prospect he may return to their neighbourhood with his goal being, as he told Dr. de Laplante, to live at his mother’s home again in Cobden.

[54] When Mr. Godin drinks alcohol and takes illegal drugs, he can become a jealous, volatile individual who does not care about placing others in harm’s way. The preparation of the Molotov cocktails demonstrated real planning and deliberation on his part to cause serious bodily harm or death to those who, he believed, wronged him.

[55] He has also proven himself capable of using his vehicle as a weapon. He lies and flees from police to avoid apprehension. In so doing, he engages in extremely risky behaviour placing other motorists or pedestrians in imminent peril. Furthermore, his pattern of offending has increased in severity.

[56] Even though he managed to maintain sobriety for period of almost 6 months while attending a residential treatment program, he lacked the follow-through to enroll himself in appropriate aftercare.

[57] The three-year period of probation to follow the carceral component of his sentence should be on the conditions recommended in the PSR.

[58] By way of ancillary orders, the Crown submitted that Mr. Godin should be:

a) prohibited from driving for a period of five years minimum pursuant to section 320.24(2)(b) of the Code, b) forbidden from possessing any weapon or thing for a period of 10 years as set out in s. 109 of the Code, c) ordered to provide a sample of his DNA to the authorities under section 487.051 of the Code, and d) required to abstain from communication directly or indirectly with Ben Stalkie, Kailyn Lair, Tasha Wallace and Tim Coderre while serving his sentence by virtue of s. 743.21 of the Code.

Defence Position on Sentence

[59] Defence counsel submits that the appropriate punishment for Mr. Godin would be a conditional sentence in the range of 18 months to two years less a day to be served in his community and to be followed by three years of probation. There is no statutory impediment to the imposition of a conditional sentence. To pass such a sentence would ensure as well that Mr. Godin remains under supervision of the Court for a period just shy of five years. In this manner, greater protection of the public can be achieved.

[60] The offender had demonstrated himself to be a good candidate for compliance with service of a sentence of imprisonment in his community by abstaining from breaching any of his conditions of bail over the course of the entire time he had awaited sentencing from August 10, 2023 to present. He has worn the GPS anklet and would be willing to continue to do so while serving a conditional sentence.

[61] For the last 13 months or more, Mr. Godin has complied with strict terms of release for which he ought to receive recognition in the form of credit as stipulated in the case of R. v. Downes.

[62] Even though the principles of denunciation and deterrence are primary, restraint must still be exercised in fashioning an appropriate disposition for Mr. Godin.

[63] Defence counsel took no issue with any of the ancillary orders sought by the Crown with one small proviso, namely, the driving prohibition, which he submitted, should be limited to three years.

[64] To assuage the fears of Ms. Wallace and Mr. Coderre, Mr. Godin would be prepared to abide by a condition which required him to live with Roxanne and Lloyd Hopper, his employers, in Pembroke, an appreciable distance away from Cobden.

[65] Defence counsel drew to my attention to cases decided by two of my colleagues, Jaffe J. in R. v. Van-Luyk, 2018 ONCJ 807 and Rose J. in R. v. Kasotty, 2021 ONCJ 238, where both jurists were tasked with sentencing arsonists who set vehicles on fire. Justice Jaffe imposed a sentence of 18 months jail where the offender ran the risk of allowing the fire to spread to the nearby residence of the victim. Justice Rose, on the other hand, saw fit to impose a conditional sentence of two years less a day where the vehicle torched by the offender damaged two other nearby vehicles, but no residence was put at risk, nor affected.

[66] Mr. Godin also spent 50 days in pre-sentence custody for which he should receive credit at the typical multiplier of 1.5 for the equivalent of 75 days. His time spent at a residential treatment program, a period of almost six months, defence counsel submitted ought additionally to be taken into account by the Court.

[67] The defence argued that the principles of rehabilitation and re-integration into society must be given due consideration in determining a fit sentence for Mr. Godin. To incarcerate Mr. Godin after the significant efforts he has made to better himself would undo much of the gains he has made and ignore his last 15 months of living “offence free”.

Analysis

[68] In arriving at a fit disposition for Mr. Godin, I must, of course, apply the relevant principles of sentencing now codified at sections 718 to 718.3 of the Code. Sentencing is always a unique, individualized exercise. No two cases are completely alike. Nor are any two offenders completely the same.

[69] Mr. Godin’s sentence must be an appropriate one upon consideration of the circumstances of the offences he committed as well as his personal circumstances.

[70] Most importantly, the punishment I impose must be proportionate to the seriousness of his offences and the degree of his responsibility for them.

Denunciation and Deterrence

[71] In my view, the principles of denunciation and deterrence are paramount when one sentences an offender for a serious arson. (see R. v. Bos, 2016 ONCA 443)

[72] Nothing could be clearer than the fact that Mr. Godin’s conduct put many lives at risk. Mr. Coderre’s pickup truck blew up in his driveway. The fire spread to his home. Firefighters attended the scene to contain the inferno, and to protect and save any occupant of the home. In doing so, they were placed in danger. Indeed, one of the firefighters had to awaken Mr. Coderre to have him vacate his house.

[73] The actions of Mr. Godin must be sternly denounced. He must be individually deterred from allowing his anger in a drunken state to manifest itself in the way it does. Simply put, he clearly does not care when he drinks to excess about endangering and hurting others. The message must be delivered to him that if he acts out in this way in future, he can expect to go to jail.

[74] Equally, likeminded people ought to learn from the punishment meted out to him what their fate will be, should they conduct themselves as he did.

Separation from Society

[75] Offenders must be separated from society where necessary. Clearly, incarceration must be the penal sanction of last resort.

[76] Unfortunately for Mr. Godin, it is the only sanction, in my view, which can adequately pay respect to the principles of denunciation and deterrence, and which must be reflected in the sentence this Court must craft. A conditional sentence would not be consistent with the fundamental purpose and principles of sentencing as referred to in s. 742.1(a) of the Code.

Rehabilitation

[77] I am mindful of the extensive effort Mr. Godin has put into his own betterment. I firmly believe Mr. Godin can stop drinking, remain clearheaded and be “offence free”. Since his release from the Anchorage residential treatment program at the end of January this year, he has found work and not attracted the attention of police. He is, perhaps, in the early stages of turning over a new leaf. However, his seeming unwillingness to engage in aftercare for his serious substance abuse issues gives me some pause.

[78] I can only hope Mr. Godin will embrace whatever treatment can be offered to him institutionally. Given the severity of his alcoholism and his penchant to use other drugs in times of stress, he has a long road ahead of him still.

Promotion of a Sense of Responsibility and Acknowledgement of Harm

[79] Sober thinking is key for Mr. Godin. I believe he is remorseful for what he has done, but the crimes he has committed cry out for the imposition of real jail.

[80] Although a conditional sentence can reflect the principles of denunciation and deterrence where harsh conditions such as house arrest are imposed, this is not such a case. The only fit sentence, in my humble view, is one which sees Mr. Godin deprived of his liberty for a significant period.

Aggravating and Mitigating Circumstances

[81] I find the following features of the offences committed by Mr. Godin to be aggravating:

a) the arson was planned and deliberate involving the preparation of not one, but two Molotov cocktails, b) lives were put at risk – not just the intended target, Mr. Coderre, but the firefighters who attended at the scene to put the fire out, c) the impact the fire had on Mr. Coderre and Ms. Wallace was profound, d) the damage caused exceeded $320,000.00, a sizeable sum by anyone’s estimation, e) the driving displayed by the offender was incredibly dangerous, and but for good fortune, no one was seriously injured or killed, f) the vehicular offences were perpetrated while he was a suspended driver, and g) under s. 320.22(e) and (g) of the Code, his ‘over 80’ offence was made worse by the fact that his readings were 190 and 180.

[82] The mitigating factors are as follows:

a) Mr. Godin pleaded guilty and saved the Crown and the Court the sizeable expense of proving his guilt, b) the expression of remorse he made to the author of his PSR is genuine, I believe, and he demonstrates some insight into his addiction issues, c) he has proven himself to be a hardworking, gainfully employed, contributing member of society for virtually his entire adult life, and d) he has the ongoing support of his family and friends who will assist with his rehabilitation.

Parity

[83] Section 718.2(b) of the Code provides:

“A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”

The Case Law

[84] Crown and defence counsel drew my attention to a few authorities attempting to assist the Court in identifying the appropriate range for the sentence which ought to be imposed in Mr. Godin’s case. I also found a handful on my own.

[85] Below I will refer the cases which I find to be particularly helpful to my task of arriving at a proper sentence for Mr. Godin.

[86] In R. v. Hirnschall, the offender was convicted after trial by judge and jury for burning down a local landmark in the town of Eganville, the Rooney Hotel.

[87] Mr. Hirnschall had a first mortgage on the property in the sum of $250,000. The hotel owner went bankrupt and the property itself had no equity in it. Mr. Hirnschall’s insurance policy for the hotel was in an amount that exceeded the mortgage debt. The policy would have expired the day after the fire.

[88] In sentencing the offender, the trial judge imposed an 18-month conditional sentence, on lenient terms, which permitted Mr. Hirnschall to spend about eight months of his sentence with his family in Austria.

[89] Laskin J.A., speaking for a unanimous three-member panel of the Court of Appeal for Ontario, commented on the appropriateness of a conditional sentence as follows:

[24] I have little doubt that the conditional sentence was “demonstrably unfit” when it was imposed. I agree with the Crown that it did not reflect either the gravity of the offence or Mr. Hirnschall’s moral blameworthiness. The catalogue of considerations in favour of a jail term was overwhelming. Mr. Hirnschall destroyed a local landmark; he put the lives of several fire fighters at risk; the fire destroyed one business and caused financial hardship to many others; and Mr. Hirnschall committed the offence entirely out of greed, his desire to reap the benefits of the insurance proceeds.

[90] Later, Justice Laskin stated:

[26] Indeed, a conditional sentence for Mr. Hirnschall seems out of step with the recent judgments of this court in arson cases. An example is R. v. Fox, [2002] O.J. 2496 (Ont. C.A.), a seemingly less serious arson. In that case, after a night of drinking, the youthful accused pushed a parked car into a lamppost with his truck, broke into a cottage and inadvertently set it on fire. The cottage was not occupied but its owner was elderly and had not insured either the building or the content. The damage was estimated at $10,000 to $15,000.

[91] Laskin J.A. concluded that the trial judge ought to have sentenced Mr. Hirnschall to a term of imprisonment. However, by the time the appeal was heard, the offender had served his conditional sentence in full. Laskin J.A. ultimately found that, bearing in mind the Crown sought only a reformatory sentence of two years less a day, to incarcerate him at that point would not be in the public interest.

[92] In R. v. Mirzakhalili, 2009 ONCA 905, the Court of Appeal for Ontario yet again emphasized the inappropriateness of conditional sentences for serious arson offenses. In an endorsement by the Court, the panel members held that the explosion and fire caused by the offenders, a father and son, with the intent to defraud their insurance company of the sum of $200,000 by destroying their family business, ought to attract the highest reformatory sentence possible. They stated as follows:

[2] On September 19, 2008, the trial judge sentenced the respondents to conditional sentences of two years less a day. The Crown appeals on the basis that the sentences are disproportionate to the gravity of the offence and the degree of responsibility of the offenders, fail to meet the need for general deterrence and denunciation, and are demonstrably unfit in the circumstances.

[3] We agree. This court has consistently held that conditional sentences are not appropriate for serious arson offences: see, for example, R. v. Fox, [2002] O.J. No. 2496 and R. v. Hirnschall (2003), 176 C.C.C. (3d) 311.

[93] Later the panel members added:

[12] In our view, a fit sentence would have been two years less a day in custody. Accordingly, the appeal is allowed. Bearing in mind the passage of time, the compliance of the respondents with their conditional sentences thus far, and the good reports of rehabilitation for both respondents, the appropriate sentence at this juncture is 12 months in custody for both respondents. The Crown and the respondents will make arrangements for the respondents to turn themselves in to custody, failing which warrants may issue.

[94] In R. v. Bos, supra, the offender started a fire in a hole in the basement stairway of the wall of the 150-year-old farmhouse. The trial judge convicted the accused following trial and imposed a sentence of imprisonment of 18 months duration. In dismissing the sentence appeal, Tulloch J.A. as he then was, opined:

[124] The appellant challenges the trial judge's refusal to impose a conditional sentence. While I would grant leave to appeal sentence, I would dismiss the sentence appeal. [page 773]

[125] The trial judge held that he could not impose a conditional sentence because he was not satisfied "that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2": Code, s. 742.1(a).

[126] The trial judge's findings included the following:

• the fire was purposely set with full knowledge that Hoy was upstairs in bed;
• no attempt was made to alert him to the danger;
• the location of the fire was hidden (behind the coats and coveralls);
• there was an element of planning; and
• the fact that the fire did not spread and engulf the entire home was due to good luck and not good management since it was the lack of oxygen in the wall that extinguished the fire.

[127] Based on these findings, the trial judge did not err in holding that this was a serious arson offence, an offence for which this court has consistently held conditional sentences are inappropriate: see, e.g., R. v. Mirzakhalili, [2009] O.J. No. 5464, 2009 ONCA 905, 257 O.A.C. 27; R. v. Fox, [2002] O.J. No. 2496, 54 W.C.B. (2d) 428 (C.A.); R. v. Hirnschall, [2003] O.J. No. 2296, 176 C.C.C. (3d) 311 (C.A.).

[95] Justice Tulloch went on to state:

[129] In my view, the trial judge's reasons do not bear out the appellant's complaints. In any event, he also held that, even if he were wrong about her posing a danger to the community, the imposition of a conditional sentence would not be consistent with the fundamental principles of sentencing, namely, general deterrence, specific deterrence and denunciation.

[130] Accordingly, I would not interfere with the trial judge's imposition of a custodial sentence or with the length of the sentence he imposed.

[96] In R. v. Yellowkneee, 2017 ABCA 60, the majority of the three-member panel of the Alberta Court of Appeal upheld the 12 month sentence of imprisonment to be followed by 12 months of probation imposed by the trial judge for the offences of arson to a dwelling house, mischief and two breaches of recognizance for consuming alcohol and contacting his common-law spouse while prohibited and at large on an undertaking. The offender, an Indigenous man, while intoxicated, set fire to a derelict trailer owned by the Bigstone Band. The trailer had previously been occupied by his common-law spouse and him. It burned to the ground. The fire also destroyed the personal property of another person. Fortunately, no one was in the trailer at the time.

[97] In a separate but concurring Memorandum of Judgement, Wakeling J.A. held that a sentencing range of four to six years less a day is fitting for arsonist who set fire to residences. She held:

[152] Arsonists who damage dwelling places commit a very serious offence.

[153] The starting point for an arsonist who damages a dwelling place is somewhere in the upper half of the middle subset range – four years to six years less a day.

[98] While Yellowkneee is, of course, not binding upon me, it has persuasive value. I share the view of Wakeling J.A., that the arsonist who targets a residence, especially where it is or may be occupied by one or more individuals, ought to go to jail for a significant period of time.

[99] In Van-Luyk, supra, the 25 year old offender poured lighter fluid onto the front of a car owned by he mother of his former girlfriend. He then used matches to ignite it. The car, which had been parked in the driveway of the townhome where the mother and daughter lived, was engulfed in flames and destroyed. Fortunately, the mother awoke to the commotion and called firefighters, who contained the fire and extinguished it.

[100] In sentencing the offender, Jaffe J. identified the salient sentencing principles as follows:

[16] In this case, the paramount objectives are deterrence (general and specific), and denunciation: R. v. Bevacqua, 2014 ONSC 6279, at para. 47,

[17] One of the fundamental purposes of any sentence is the protection of society: R. v. Simpson, [1981] O.J. No. 34 (Ont. C.A.). Where individuals pose a significant danger, separating them from the community takes on greater significance.

[101] Her Honour went on to cite with approval R. v. Bevacqua, 2014 ONSC 6279 as establishing a sentencing range of three to five years for arson endangering life.

[102] I also adopt wholeheartedly the observations made by Jaffe J. regarding the inherent risk and endangerment the crime of arson entails. She noted:

[32] I agree there was no evidence relating specifically to the risk of endangerment to life as there was for instance in R. v. Campeau, [1999] O.J. No. 2415 (C.A.), one of the cases referred to by Mr. Owoh in his sentencing submissions. Unlike the trial judge in Campeau, I cannot conclude that the car fire in this case would have inevitably spread to the Nugent’s townhouse if not extinguished by firefighters. And I cannot conclude that Mr. Van-Luyk deliberately set out to hurt anyone by his conduct on February 7 or March 7th. However, in my view Mr. Van-Luyk was at best, indifferent to the potential risk to the Nugents or to anyone rendering assistance.

[33] It is a matter of simple common sense that setting fire to car (which in all probabilities has gasoline in its tank), poses an extreme threat to anything or anyone in close proximity. And, it is also a matter of common sense, that at 2:00 a.m., the occupants of a townhouse are likely at home, and in bed. Mr. Van-Luyk was surely aware of the fact that on both occasions in February and March, the Nugents were at home, in bed.

[34] While Mr. Van-Luyk is not being sentenced for arson endangering life, he is being sentenced for mischief endangering life, which was merely a failed attempt at arson.

[103] On the impropriety of a conditional sentence for the offence Mr. Van-Luyk committed, Her Honour wrote:

[45] A conditional sentence in this case would be not be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2. The sentence imposed on Mr. Van-Luyk must unequivocally denounce his conduct and deter both himself and others from committing similar offences. In my view a conditional sentence would fail to achieve those objectives.

[104] I am of the same mind as Her Honour. Conditional sentences for serious arsons ought to be rare and exceptional. Ultimately, she imposed a sentence of 18 months imprisonment to be followed by three years of probation.

[105] In Kasotty, supra, the offender plotted with her husband to set fire to his transport truck. In so doing, another truck, a Mercedes, and a trailer, which were parked nearby, were also destroyed when the fire spread to them. The loss to the insurer was just under $60,000.00. A further $8000.00 was the cost to put the fire out.

[106] It does not appear as though the jurisprudence emanating from the Court of Appeal for Ontario, namely Fox, Hirnschall, Mirzakhalili and Bos were referred to by Rose J. in granting a conditional sentence to Ms. Kasotty.

[107] Kasotty is also readily distinguishable from the facts of the case before me. There were no nearby residences mentioned in the findings made by Rose J. Accordingly, there was no risk to or endangerment of life.

A Fit Sentence for Mr. Godin in the Circumstances of the Offences He Committed and His Personal Circumstances

[108] It warrants repeating that the length of time for which I will incarcerate Mr. Godin must pay adequate respect to the principles of denunciation and deterrence.

[109] The impact of Mr. Godin’s crimes was significant. I have no doubt Mr. Coderre and Ms. Wallace continue to fear the return of Mr. Godin in their community. The sentence I impose must and will, of course, reflect the high moral blameworthiness of Mr. Godin’s decision to target these two individuals.

[110] Upon consideration of all relevant principles of sentencing and their purpose, I shall impose a sentence of two years imprisonment plus three years of probation If not for the credit to be given to Mr. Godin under authorities such as Summers [1], Downes [2], Forsyth [3], Larventz [4], Rice [5] and Clouthier [6], as well as the application of the restraint and totality principles, I would have had no qualms sending him off to the penitentiary for much longer.

Conclusion

[111] Upon assessment of all relevant provisions of the Code, I must jail Mr. Godin for a period of two years going forward from today’s date. I find I can go no lower if I am to adequately address the pressing principles of sentencing in this case, primarily, deterrence and denunciation. A conditional sentence would simply not do justice to this case. The breakdown will be as follows:

a) arson contrary to s. 433(a) of the Code – two years imprisonment plus three years of probation, b) ‘over 80’ contrary to s. 320.14(b) of the Code – one day of jail concurrent plus a driving prohibition for one year, c) dangerous operation of a conveyance contrary to s. 320.13(1) of the Code – 90 days jail concurrent plus a two year driving prohibition consecutive, d) failure to surrender an insurance card contrary to s. 3(1) of the CAIA – a fine of $1.00 e) driving while suspended contrary to s. 53(1) of the HTA – 30 days jail concurrent, f) driving a vehicle in excess of 50 km/hr. contrary to s. 172(1) of the HTA – 60 days jail concurrent, g) breach of an undertaking contrary to s. 145(4)(a) of the Code – 30 days jail concurrent, h) dangerous operation of a vehicle causing bodily harm contrary to s. 320.13(2) of the Code – 50 days credited at the multiplier of 1.5 equating to 75 days (time already served) plus a two year driving prohibition consecutive and three years of probation concurrent, i) failure to stop a vehicle and remain after being involved in an accident resulting in bodily harm to another person contrary to s. 320.16(2) of the Code – six months residential treatment credited at the multiplier of 0.5 equating to 90 days jail (time already served), and j) personation contrary to s. 403(1)(d) of the Code – Downes credit for eight months of house arrest with GPS monitoring at a multiplier of 0.25 for the equivalent of 60 days jail (time already served).

[112] Upon his release from custody, the terms of Mr. Godin’s three years of probation shall be as follows:

a) report to a probation within 72 hours of his release from custody and thereafter as required, b) reside at a residence approved by his probation officer and not elsewhere, c) attend for any assessment and counselling recommended by his probation officers including for substance abuse and anger management, and sign any releases required of him by his probation officer to ensure he is following up on any such assessment and counselling recommendation made for him, d) abstain from any contact directly or indirectly with Mr. Stalkie, Ms. Lair, Mr. Coderre and Ms. Wallace, e) not attend within 100 metres of her place of employment, schooling, worship, or any other place he knows her to frequent, and f) keep the peace and be of good behaviour.

[113] By way of ancillary orders, Mr. Godin shall be required:

a) to provide a sample of his DNA to the authorities under section 487.051 of the Code, b) not to operate a motor vehicle on any road, street, highway, or public place for five years following his release from custody under authority of s. 320.24(2)(a) and s. 320.24(5)(c), c) to be prohibited for a period of 10 years from possessing any weapon or thing as set out in s. 109 of the Code, and d) to abstain from communication directly or indirectly with Mr. Stalkie, Ms. Lair, Mr. Coderre and Ms. Wallace while serving his sentence by virtue of s. 743.21 of the Code.

[114] Despite filing a letter from Mr. Coderre as to the payout made to Mr. Coderre by his insurer, neither counsel made submissions regarding restitution. I suspect the reason therefor is the complete inability of Mr. Godin to pay anything (see R. v. Robertson, 2020 ONCA 367 at para. 8). Mr. Coderre’s insurance company can decide of its own volition whether to exercise its right to subrogation and to pursue Mr. Godin civilly.

[115] Lastly, I will waive the imposition of any victim fine surcharge for Mr. Godin. I find it will cause him undue hardship to face any type of monetary penalty upon his release from custody, given the significant length of time he is to be incarcerated and the financial struggles he will likely face upon release.

DATED: October 1, 2024

March, M.G., J.

Endnotes

[1] R. v. Summers, 2014 SCC 26. Mr. Godin’s 50 days of actual pre-sentence custody must be credited at the typical multiplier of 1.5 for the equivalent of 75 days.

[2] R. v. Downes. Mr. Godin’s restrictive conditions of release including house arrest with the usual exceptions and GPS monitoring will be credited as follows: 8 mos. (end of Jan. ’24 to present) x 0.25 = 2 mos.

[3] R. v. Forsyth (1995) O.J. No. 4173 – Hill J. credited the offender for all of his time spent in residential treatment at a ratio of 1:1. I am disinclined to be so generous, but I will do so at a ratio of 0.5:1.

[4] R. v. Larventz – It is an error in principle to completely foreclose any credit for attendance at a residential treatment centre prior to conviction.

[5] R. v. Rice at para. 4 – Attendance at a residential treatment facility should not be equated with incarceration for the purpose of determining the length of pre-trial custody. The significance, if any, of an accused’s residence in, or his attendance at a rehabilitative facility before sentencing will vary with the facts of each case. Residence in such facilities should not automatically be equated with pre-trial incarceration for the purposes of calculating pre-trial custody.

[6] R. v. Clouthier, 2016 ONCA 197 at para. 67 – Watt J. found no fault with the sentencing judge’s decision to credit the offender for time spent in a residential treatment program, but the facts of the case do not disclose the ratio at which the sentencing judge deemed the credit to be attributed. Sentencing judges in Ontario are still awaiting clear direction from higher courts on the exact credit to be given. Perhaps, no such direction can ever be offered due to the differences in restraints on liberty and other rigours imposed by the various treatment programs available in the province and offered elsewhere.