ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-12-10000419-0000

DATE: 20140711

B E T W E E N:

HER MAJESTY THE QUEEN

Marnie Goldenberg for the Crown

• and -

MARTIN JOHNSTON

Self-represented

HEARD: June 20 and July 11, 2014.

REASONS FOR SENTENCE

CORRICK J. (orally)

Introduction

[1] Following a trial, I found Mr. Johnston guilty of intentionally or recklessly causing damage by fire to 99 Dowling Avenue, contrary to s. 433 of the Criminal Code and of intentionally or recklessly causing damage by fire to the apartment he occupied at 99 Dowling Avenue, contrary to s. 434.1 of the Criminal Code.

Circumstances of the Offences

[2] The offences occurred on October 30, 2011. I found that Mr. Johnston set fire to a pile of books, compact discs, magazines and clothing in the living room of his apartment at 99 Dowling Avenue. The smoke from the fire was so intense that the firefighters who entered Mr. Johnston’s apartment were forced to do so on their hands and knees. The fire was quickly extinguished. Mr. Johnston was discovered by one of the firefighters on the balcony of the apartment sitting, huddled, against the wall of the building. He told the firefighter that he had started the fire and did not want to live.

[3] Mr. Johnston was taken by ambulance to the hospital. En route he told the paramedic that he had been depressed for as long as he could remember and that he had been on a drug, alcohol and sex binge for the prior week, and no longer wanted to live.

[4] The building at 99 Dowling Avenue is a six-floor residential apartment building with many units on each floor. The fire caused $8,478.39 in damage to the apartment.

Circumstances of the Offender

[5] Mr. Johnston is a 50-year-old man with no criminal record. The pre-sentence report filed as Exhibit #1 indicates that he is one of five siblings raised by both of his parents in Georgetown, Ontario. He has been estranged from his family members for the past seven years. His mother was addicted to alcohol and prescription drugs. He reports having been abused physically, verbally and emotionally by his parents and having been bullied at school.

[6] He did not finish high school, but attended George Brown College for two years to upgrade his education. He has held a variety of jobs, most recently in the ticket office for Maple Leaf Sports and Entertainment. He worked at that between 2006 and 2011. He has not been employed since these offences occurred. Since 2012, he has supported himself on benefits from the Ontario Disability Support Program. He receives approximately $1,300.00 each month.

[7] Since his release from custody, shortly after his arrest, he has been compliant with the terms of his release, reporting to Bail Program weekly. He enrolled in a number of programs, including anger management, Alcoholics Anonymous and Narcotics Anonymous. The pre-sentence report indicates that he attended Alcoholics Anonymous and Narcotics Anonymous for support to assist him to refuse drugs and alcohol when they are offered to him. He denied any problem with either substance, but was prohibited from using them by the terms of his bail.

[8] Mr. Johnston has also attended counselling sessions with a social worker. The social worker counselled him for depression, anxiety, social isolation, post-traumatic stress disorder and housing issues. He saw her between June 2011 and August 2012.

Legal Parameters

[9] Arson, contrary to s. 433, is punishable by life in prison. The offence contrary to s. 434.1 is punishable by fourteen years in prison.

Position of the Parties

[10] Ms. Goldenberg, on behalf of the Crown, submits that an appropriate sentence is eighteen months to two years less a day in prison, followed by a period of probation for two years. As a condition of probation, she submits that Mr. Johnston should make restitution in the amount of $8,478.39 to TransGlobe Property Management. She also seeks a stand-alone restitution order, pursuant to s. 738(1)(a) of the Criminal Code. Finally, Ms. Goldenberg seeks a weapons prohibition order for life and a DNA order.

[11] Mr. Johnston has indicated that imprisoning him will deny him the opportunity to give back to his community and to return to gainful employment.

Principles of Sentencing

[12] The principles of sentencing that I am bound to consider are set out in the Criminal Code. The first is the fundamental purpose of sentencing set out in s. 718, which is to “contribute to respect for the law and the maintenance of a just, peaceful and safe society” by imposing sentences that give effect to one or more of the following objectives: denouncing unlawful conduct, deterring the offender and others from committing crimes, separating offenders from society, where necessary, assisting in the rehabilitation of the offender, providing reparations for harm done to the victim or to the community, and promoting a sense of responsibility in the offender.

[13] The second principle I must consider is proportionality as set out in s. 718.1. Any sentence imposed must reflect the gravity of the offence and the offender’s degree of responsibility.

[14] Thirdly, I am required by section 718.2 to impose a sentence taking into account any relevant aggravating or mitigating circumstances relating to the offence or the offender.

[15] Finally, I must consider sentences imposed on similar offenders for similar offences committed in similar circumstances. It is those that I now consider. Ms. Goldenberg has referred me to eleven cases that deal with the appropriate sentence for arson. The sentences imposed vary widely from nine months in prison in R. v. Murphy 1998 27920 (MB CA), [1998] M.J. No. 104 (Man C.A.) to five years in R. v. Pruner [1979] O.J. No. 882 (Ont. C. A.). Cases in which sentences at the upper end of the range were imposed typically involved fires set to defraud insurance companies or to exact revenge on a landlord who terminated the tenancy of the fire-setter: see for example R. v. Quigley [1998] B.C.J. No. 561 (B.C.C.A.) and R. v. Singh [1993] O.J. No. 2156 (C.A.). Cases in which sentences at the middle or low end of the range were imposed often involved offenders who were suffering from some sort of mental illness or were under the influence of drugs or alcohol: see R. v. Renaud [2001] O.J. No. 3974 (S.C.J.); R. v. Murphy [1998] M.J. No. 104 (Man C.A.).

[16] In this case, there is no evidence that Mr. Johnston stood to gain anything financially from setting the fire, and no evidence that he had a dispute with his landlord. The evidence is that Mr. Johnston told the firefighter who discovered him on his balcony and the paramedic who escorted him in the ambulance that he did not want to live. This is the only evidence related to his motivations for setting the fire.

[17] A review of the cases demonstrates that sentencing is a profoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender. The circumstances of any case, including this one, can be readily distinguished from any other case. It is always necessary to consider and apply all of the sentencing principles in the Criminal Code, having regard to the unique circumstances of the case. This is always a difficult task, especially in a case like this one, in which a person with no criminal antecedents has committed a very serious offence.

Aggravating and Mitigating Circumstances

[18] I turn now to the aggravating and mitigating circumstances of the offence and of the offender. First the aggravating circumstances.

1. This fire was set in an apartment that was part of a multi-unit residential apartment building that was occupied. It was set in the evening when residents were likely to be home, increasing the risk of harm to the residents.

2. The door to Mr. Johnston’s apartment was locked, delaying the entrance of the firefighters to extinguish the fire. In addition, a functioning battery-operated smoke detector had been removed from the wall and was covered with a plastic garbage bag.

3. It goes without saying that fire is dangerous. It is unpredictable. It always puts the lives of fire fighters in jeopardy. Five fire fighters responded to the fire alarm. They entered Mr. Johnston’s apartment on their hands and knees, wearing masks and using their breathing apparatus because of the thick smoke. The apartment was fully charged with heat.

4. The fire caused $8,478.39 in damage to the apartment.

5. Mr. Johnston accepts no responsibility for the offence.

[19] The following mitigating circumstances are present in this case:

1. Mr. Johnston is a 50-year-old man with no criminal record.

2. The pre-sentence report is positive and describes Mr. Johnston as a self-motivated individual able and willing to seek support from community agencies as required.

3. He had a significant employment history until he was released from custody on bail following his arrest for this offence.

4. He was in custody for four days following his arrest prior to being released under the supervision of the Bail Programme. He has been compliant with the conditions of his bail and proactively sought counselling services.

Determination of a Fit Sentence

[20] The offences of which Mr. Johnston has been convicted are very serious. His actions on October 30, 2011 jeopardized the lives of the occupants of the apartment building and of the firefighters. General deterrence and denunciation are of paramount importance in determining the fit sentence. Rehabilitation is also important given that Mr. Johnston has reached the age of 50 without a criminal record. His prospects for rehabilitation are good.

[21] I am of the view that a sentence of 15 months in jail plus a period of probation for two years adequately addresses the sentencing principles of general deterrence, denunciation and rehabilitation, and is in keeping with sentences imposed on similar offenders in similar circumstances.

[22] The terms of probation will be as follows:

1. keep the peace and be of good behaviour;

2. appear before the court when required;

3. report to a probation officer within two working days of your release from custody and thereafter, when required by the probation officer and in the manner directed by the probation officer;

4. remain within the jurisdiction of this court unless written permission to go outside this jurisdiction is obtained from the probation officer;

5. reside at an address approved of in writing by your probation officer;

6. abstain from the possession of incendiary devices or explosives;

7. abstain from owning, possessing or carrying any weapon including any offensive weapon, ammunition, explosive substance or weapon as defined in the Criminal Code;

8. attend for assessment, counselling and treatment as directed by your probation officer, including psychiatric or psychological treatment and treatment for drug or alcohol abuse, and sign any releases necessary to allow your probation officer to monitor your compliance with this condition; and

9. do not attend at 99 Dowling Street.

[23] Ms. Goldenberg also seeks a condition that Mr. Johnston make restitution in the amount of $8,478.39 to TransGlobe Property Management. It was agreed at trial that this was the amount of damage to the apartment caused by the fire. She also seeks a stand-alone restitution order in the same amount pursuant to s. 738(1)(a) of the Criminal Code.

[24] I am not satisfied that Mr. Johnston has the ability to pay a restitution order. He supports himself on $1,300.00 he receives from the Ontario Disability Support Program each month. Ordering him to pay $8,478.39 to TransGlobe Property Management as a condition of his probation is to invite him to breach the condition, and I decline to order that.

[25] A free-standing restitution order made pursuant to s. 738(1)(a) is part of the sentence imposed by the court on an offender, and must be considered part of the total sentence. Although not determinative, an offender’s ability to pay is one of the factors the court must consider before making such an order: R. v. Biegus (1999), 1999 3815 (ON CA), 141 C.C.C. (3d) 245 (Ont. C.A.). A restitution order remains in place for life, and can therefore affect the offender’s prospects for rehabilitation.

[26] One of the important goals of making restitution orders is to deprive the offender of the fruits of his crime: R. v. Castro, 2010 ONCA 718. As I have already indicated, Mr. Johnston did not stand to benefit financially from this offence. The offence was not motivated by greed.

[27] Given Mr. Johnston’s current precarious financial situation, his age, the fact that he has not had full-time employment since 2011, and that his previous employment was mainly part-time, I am not satisfied that a restitution order is necessary to satisfy the principles of sentencing.

[28] In addition, at the request of the Crown, I will make an order pursuant to section 487.051(3)(b) of the Criminal Code authorizing the taking of a DNA sample. I have considered the fact that Mr. Johnston does not have a criminal record. However, the seriousness of the offences of which he has been convicted and the relative minimal impact the order will have on his privacy and personal security satisfy me that it is in the best interests of the administration of justice to make the order.

[29] There will also be a weapons prohibition order for ten years.

[30] This sentence is imposed in relation to count #1. Count #2 is conditionally stayed pursuant to R. v. Kienapple.

Corrick J.

Released: July 11, 2014

COURT FILE NO.: CR-12-10000419-0000

DATE: 20140711

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN
– and –
MARTIN JOHNSTON

REASONS FOR SENTENCE

Corrick J.

Released: July 11, 2014