COURT FILE NO.: 0117/19
DATE: 20190830
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
William jovani (Cynthia) Garcia
Defendant
Andrew Cox, for the Crown
Graedon Pfeiffer, for the Defendant
HEARD at Toronto: August 26-27, 2019
sentencing reasons
S.F. Dunphy J.
[1] Ms. Garcia is before me today for sentencing following her conviction by me for the offence of arson causing damage to property contrary to s. 434 of the Criminal Code. She was convicted after a short trial before me on August 28, 2019. My reasons for finding her guilty and a more detailed review of the circumstances of the offence are contained in the reasons I delivered at that time. At the same time, I acquitted her of a second charge of mischief causing risk to life. Instead, she was convicted of the included charge of mischief simpliciter which charge was stayed pursuant to the Kienapple principle on the joint agreement of the Crown and defence.
Circumstances of the Offence
[2] On July 10, 2018, Ms. Garcia was a tenant of Toronto Community Housing Corporation living in Unit 35A Henry Lane Terrace in downtown Toronto. She lived alone in a small bachelor apartment.
[3] Shortly before 11:00 p.m., smoke was observed coming from her unit into the street by her immediate neighbour Mr. Prince who lived at Unit 33B. The two units shared a common wall and were both on the main floor. Mr. Prince was just returning from a brief shopping trip to a local grocery store. Mr. Prince checked his own apartment to assure himself the fire had not spread there. He then attempted to alert Ms. Garcia in vain. A call to 911 was placed by him. After unsuccessful attempts to gain Ms. Garcia’s attention by knocking on her door and calling through the (closed) balcony door from the street below, Ms. Garcia finally opened the sliding glass door and came out to the balcony. Due to the smoke, she crawled out at ground level. She made no effort to evacuate. Instead, making a face he described as a “smirk”, she told him that she had smoked a joint, closed the door and went back inside.
[4] The fire department arrived a few moments later. It was located only a few blocks away. Ms. Garcia’ door was bolted shut and no response to the firefighter’s knocks was forthcoming. Three firefighters then forced their way into Ms. Garcia’s apartment with their tools. Upon entry, they found the apartment full of dense smoke reaching most of the way to the floor. They were required to don masks and breathing apparatus before entering.
[5] A rapid search of the apartment located the seat of the fire on the stovetop in the kitchen of the small unit. Embers were still visible from which thick smoke was emanating. The firefighters found that various flammable things had been jammed under and around the right front burner of the stove, a burner switch in the “on” position with live embers visible. The items apparently fueling the fire included a plastic peanut butter jar, a black cloth of uncertain composition and a cardboard aluminum foil box. Each of these were only partly consumed. Other charred debris of uncertain origin was found underneath the burner.
[6] Firefighter Dolman quickly removed the still-smoldering items to the sink along with the burner and doused them with water. His partner doused the stovetop as well with his hose. The embers were all extinguished and the source of the thick smoke eliminated. The smoke was quickly evacuated shortly thereafter.
[7] In the bathroom of the apartment unit at the back (and beside the kitchen), Captain Centra found Ms. Garcia standing in the shower with her back turned to him. She did not respond to his attempts to persuade her to evacuate. He wrapped the shower curtain around her and evacuated her himself.
[8] The incident was over within about ten minutes of the arrival of the first responders.
[9] The fire caused $15,890.11 in damage to Ms. Garcia’s unit. The amount of those repair costs was agreed. I found the fire to have been deliberately set by Ms. Garcia and she was convicted of damaging property by fire contrary to s. 434 of the Criminal Code. I was not able to conclude beyond a reasonable doubt that the fire had actually placed any lives in danger and acquitted Ms. Garcia of the charge under s. 430(2) but convicted her of mischief simpliciter under s. 430(4) of the Criminal Code, which latter conviction was stayed by me pursuant to the Kienapple principle.
[10] While I did not find sufficient evidence to conclude beyond a reasonable doubt that lives had actually been placed in danger, it would be inaccurate to attribute that finding to any care or attention to the matter on the part of Ms. Garcia. She set a fire that created a very significant quantity of hazardous, thick smoke. There was un-burnt fuel and present and a stovetop burner that had been left turned on. Had the fire burnt through a wire and caused a breaker to be tripped or might the burner have been able to cause the remainder of the fuel to be ignited? Was the fire still building or had the manner in which the fuel had been stuffed under and around the burner deprived it of just that little bit of critical mass needed to sustain continued combustion? Ms. Garcia was entitled to the benefit of that reasonable doubt raised by the lack of specific evidence that only an in-depth inquiry into the fire might have produced. However, the evidence before me was certainly sufficient to permit me to conclude quite safely that this fire was not intentionally limited in scope. Ms. Garcia supplied fuel enough to have done more damage and to have had the potential to spread considerably further than it ultimately did.
Circumstances of the Offender
[11] Ms. Garcia’s history is a complex one. She did not testify at trial and she has declined her right to address me directly prior to sentencing. Apart from the sparse details of her criminal record, no formal evidence was led at the sentencing hearing. Her counsel provided me with a summary of her history which summary was not contested by the Crown. What I know of her, I have learned from his summary and from her criminal record which was entered in evidence before me.
[12] Ms. Garcia is currently 34 years of age and a Guatemalan national. She is also a transgender person.
[13] Ms. Garcia came to Canada in 2010 and applied for protection as a refugee. I have no information about whether her claim has yet been adjudicated upon. At all events she is still here and she does not have Canadian citizenship. I shall return to that question below.
[14] Ms. Garcia advises that she identified as a woman from a young age. Rejected by her family, she received little or no education and lived on the streets for a time. She became a drug user at the age of 16. She eventually made her way to Mexico and worked there for a time. She crossed the border from Mexico into the United States on a number of occasions to work without a visa, only to be caught and deported back to Mexico. When deported to Mexico, she claimed to be a Mexican citizen and successfully hid her Guatemalan nationality from US and Mexican officials both. At some point during 2010 she travelled to Canada from the United States and made her refugee claim here. As noted, the state of her immigration file is not in evidence before me.
[15] Ms. Garcia had entanglements with law enforcement soon after arriving in Canada. How soon I cannot say because the of the imprecision in the dates that I have, but nothing in particular turns upon that. In February 2014 she was convicted of uttering threats and breaching what I am advised was a “no contact” term of a prior probation order. I have no evidence regarding the proceeding giving rise to that prior probation order but infer that it must have been a reasonable time prior to February 2014. She received a sentence for these offences of 1 additional day beyond the fourteen days of pre-sentence custody credited plus one year of probation. No further details of those offences (or their timing) beyond the sparse record are before me.
[16] In July 2018, Ms. Garcia was living in Toronto Community Housing and receiving social assistance in the form of ODSP payments. I am advised that she is receiving treatment for HIV and hormone therapy as a transgender person. There is no indication that Ms. Garcia has any work history while in Canada. Lacking any details of her immigration status beyond the fact that she made a refugee claim when she arrived, I do not know whether she has been in a position to work for any or all of the period of time that she has lived in Canada.
[17] Ms. Garcia was detained by police in relation to these charges on July 11, 2018. She was released on July 20 but was returned to custody after only ten days on July 30, 2018. I am advised by her counsel that she faces certain other charges the nature of which have not been disclosed to me but which are expected to be resolved shortly. She has been in custody since July 30, 2018.
Aggravating circumstances
(a) Prior convictions
[18] Ms. Garcia’s prior convictions (in 2014) for uttering threats and breaching probation conditions are an aggravating factor. The weight this factor bears is however mitigated by the fact that the sentence she received was a comparatively light one (time served – 14 days - plus one year probation) and by the gap between those convictions and the actions giving rise to this matter (4.5 years). Ms. Garcia’s prior convictions are an aggravating circumstance subject to those caveats.
(b) Risks posed to others by her behaviour
[19] I shall not speculate in the absence of evidence as to what motivated Ms. Garcia on July 10, 2018 when she set the fire. However, no speculation is required to assess the very high level of risk her thoughtless and reckless behaviour imposed upon her neighbours. The vehicle she chose to employ that night was fire – about as dangerous and unpredictable a tool of destruction as can be imagined. The smoke detector in her apartment had been physically removed from the ceiling and was in plain sight. Whether she personally removed it that day prior to setting the fire I cannot say. I do not hesitate to find that she knew that it had been removed and thus would not be able to alert her neighbours to the fire she set for some time. This was a reckless and self-evidently dangerous act that could have done a lot more damage and harmed a lot more people. She placed others recklessly at risk. This is a further aggravating circumstance.
Mitigating circumstances
[20] There were no specific mitigating circumstances either party asked me to consider apart from the unfortunate circumstances of the offender discussed earlier. Her history and circumstances are indeed unfortunate and naturally give rise to a considerable degree of sympathy. There is however no basis to conclude that she has acquired any insight into her behaviour or that she feels any degree of remorse for what she has done.
Position of the parties
(a) Crown
[21] The Crown asked me to impose a custodial sentence of one year less credit for pre-sentence custody (608 days). In addition, the Crown asked for an order that Ms. Garcia be placed on probation for a period of two years. The Crown also asked for a restitution order in favour of TCHC in the agreed amount of the damages sustained ($15,809.11) plus a DNA order.
(b) Defence
[22] The defence was in agreement with much of the sentence suggested by the Crown save two of the terms mentioned: the length of sentence and the restitution order. The defence took no issue with the requested DNA order or the probation terms requested, suggesting only that the treatment program to be supervised by the probation officer should include a drug use rehabilitation component.
[23] The defence urged me to forego a restitution order submitting that Ms. Garcia is indigent and there is no point in issuing a restitution order that she will have no capacity to pay for the foreseeable future except through the meagre social assistance payments she will be receiving from another arm of government. Having lost her place at TCHC she will already have only the precarious housing arrangements available in Toronto’s shelter system to rely upon. Steps have been taken to secure her a place in one and a case worker has been assigned. The defence also strongly urged me to impose a sentence of six months less a day. Any longer sentence, the defence urged, would result in Ms. Garcia being sent back to Guatemala which in her circumstances would be a severe punishment indeed.
Discussion of Applicable Principles of Sentencing
[24] There is little utility in reciting here all of the principles of sentencing that Parliament has set forth in s. 718 and following of the Criminal Code. I shall instead review the more pertinent of the criteria and consider their impact to the present case below. Before reviewing these, however, I shall have to explore the proper role of Ms. Garcia’s immigration status.
(i) Immigration Status
[25] Mr. Pfeiffer for the defence urged upon me the proposition that Ms. Garcia would be subject to removal without right of appeal were I to impose a sentence longer than the six months less a day that he urged me to impose. No authority was cited to expand upon the parameters of the alleged peril nor was any evidence concerning the position of the Minister of Citizenship and Immigration or of Public Safety and Emergency Preparedness on the matter placed before me.
[26] What is the nature of the actual risk facing Ms. Garcia?
[27] Section 36(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 provides that a permanent resident or foreign national is inadmissible on grounds of serious criminality for “having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed” (emphasis added). The “or” in that phrase means a foreign national satisfying either condition is deemed inadmissible. Ms. Garcia has already been convicted under s. 434 of the Criminal Code for which the prescribed penalty is up to 14 years. She is thus plainly inadmissible within the meaning of s. 36(1)(a) of the IRPA regardless of what sentencing decision I make.
[28] Being found inadmissible by reason of serious criminality is by no means the end of the matter. Removal is not automatic. The Minister must first decide to act upon a report filed should one be filed. In the course of considering whether a removal order ought to be made, the Minister may be requested to permit the national to remain on humanitarian and compassionate grounds and may act upon that request favourably.
[29] A sentence of six months or longer does impact one substantive right under the IRPA. Section 64(1) and (2) of the IRPA precludes an appeal from a finding of inadmissibility by reason of serious criminality “with respect to a crime that was punished in Canada by a term of imprisonment of at least six months”.
[30] In summary, I cannot assume that Ms. Garcia will be the object of a removal order should I impose a sentence of six months or longer. There are simply too many contingencies standing between the present state of affairs and that potentially dire outcome. I cannot assume the Minister will seek a removal order nor that the Minister would reject humanitarian and compassionate pleas. I cannot assume that a lost appeal right in these circumstances would have been a successful appeal. In passing sentence I am not the gatekeeper with authority to decide who stays and who goes. Ms. Garcia may be allowed to stay or she may be removed whatever decision I make.
[31] I should not be taken as minimizing the impact of the loss of a substantive appeal right. Neither do I minimize the justifiable fear that Ms. Garcia must have regarding the prospect of being sent back to Guatemala where her access to necessary medical care may be challenged or absent altogether. There can be no doubt that Ms. Garcia will have many serious and important arguments to raise in that direction in the course of any removal hearing that might be convened. I am simply placing the role of sentencing in its true context. My decision might deprive her of what might be a meritorious appeal were a decision that might be made by the Minister actually made. If all of that were to come to pass, and I must consider that it might, the impact upon her would be considerable indeed.
[32] The case law is clear that I am required to take into account any collateral immigration consequence in determining a fair and proportionate sentence: R. v. Ismail, 2017 ONCA 597. Wagner J. described the analytical framework to be applied when considering such collateral immigration consequences in sentencing R. v. Pham, [2013] 1 SCR 739, 2013 SCC 15. There he wrote (at para. 11):
In light of these principles, the collateral consequences of a sentence are any consequences for the impact of the sentence on the particular offender. They may be taken into account in sentencing as personal circumstances of the offender. However, they are not, strictly speaking, aggravating or mitigating factors, since such factors are by definition related only to the gravity of the offence or to the degree of responsibility of the offender (s. 718.2(a) of the Criminal Code). Their relevance flows from the application of the principles of individualization and parity. The relevance of collateral consequences may also flow from the sentencing objective of assisting in rehabilitating offenders (s. 718(d) of the Criminal Code). Thus, when two possible sentences are both appropriate as regards the gravity of the offence and the responsibility of the offenders, the most suitable one may be the one that better contributes to the offender’s rehabilitation.
[33] I must also bear in mind the admonition voiced by Wagner J. in paragraph 16 of Pham that such “consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation.”
[34] This court is clearly not equipped to decide what if any actions ought to be undertaken in relation to Ms. Garcia under the IRPA. Parliament has created an entirely different decision-making apparatus for considering such matters. The criteria to be considered and the fact-finding procedures to be employed are specified in that Act and cannot (and should not) be replicated in the sentencing process. There is someone that Parliament has specifically directed to consider an appeal on humanitarian and compassionate grounds and that is the Minister under the IRPA. A sentencing hearing is no place to conduct a detailed inquiry as to whether someone should be permitted to remain in Canada on compassionate or humanitarian grounds. My task is to fashion a fit and proper sentence having regard to the criteria Parliament has directed me to apply in s. 718 and following of the Criminal Code and that is the task that I shall undertake. That process definitely includes considering the immigration consequences of a particular sentence, but does not extend to attempting to manipulate them.
[35] The very fine line I am directed by Pham and Ismail to follow is this. I cannot fail to consider immigration consequences as a component of the personal circumstances of the offender and, potentially, a matter going to such issues as the potential rehabilitation of the offender. On the other hand, I cannot fall into the trap of skewing the sentencing process to achieve a particular immigration outcome.
[36] The most practical advice that I have been able to distill from this review of the cases is that where two sentences appear to be appropriate having regard to all of the other “non-immigration” circumstances, then the sentence that best appears to advance the goal of rehabilitating the offender or that produces the least amount of collateral harm may be the preferable of the two.
[37] What I cannot do is to reverse-engineer a sentence so as to tilt the immigration process based upon my own subjective view as to whether Ms. Garcia ought to be allowed to remain on humanitarian or other grounds. Ms. Garcia doubtless has very important and weighty arguments to raise in that regard, but I am not the one to make the decision. Parliament has charged someone else with that job, not me.
(ii) Denunciation of conduct and harm to victims or the community: s. 718(a) Criminal Code
[38] There can be no doubt that the circumstances of this offence call for a very significant weight be given to the objective of denouncing such conduct and the harm inflicted upon the victims and community. This was a deliberately set fire. Smoke had begun to infiltrate at least one other unit – that of Mr. Prince. Firefighters were required to break down the door to Ms. Garcia’s apartment to gain entry and had to navigate the thick and potentially noxious smoke to find and extinguish the fire she set. The consequences of her actions were visited upon these victims to a greater or lesser degree. I shall consider this sentencing objective further in reviewing the gravity of the offence below.
(iii) Deterrence: s. 718(b) Criminal Code
[39] Toronto is a dense city. Millions of its citizens live in close proximity to each other, whether in closely packed townhomes, dense high-rise apartments and condominiums and other similar arrangements. Deliberately causing damage to property by means of something as potentially dangerous and contagious as a fire is an incredibly irresponsible and anti-social act. An appropriate sentence must give appropriate weight to the objective of deterring this conduct, both generally and specifically.
(iv) Rehabilitation of the offender: s. 718(d) Criminal Code
[40] An important objective to be served in fashioning a fit and proper sentence is to promote the rehabilitation of the offender. Ms. Garcia’s prospects for rehabilitation must be viewed at this stage as being a near complete unknown with little grounds to be optimistic.
[41] Ms. Garcia has expressed no remorse for her actions nor has she attempted to explain them in any way. There is no sign that she has any insight into what motivated her to take this step on July 10, 2018. Apart from speculation, I don’t know what she was trying to do that night and I don’t know whether she has sought or is receiving any serious treatment for any mental health issues she may or may not have. I am advised that she has some addiction problems but have been given only very general assurances that some form of treatment of the underlying addiction issues will be pursued.
[42] She has received little to no education and has little to no work experience in this country at least. Her criminal record, while not particularly lengthy, does not improve the picture. Her 2014 conviction for breach of probation terms (imposed at an unknown date prior to then) and for uttering threats is a troubling fact. The fact that her release on these charges was revoked after only ten days by reason of some further charges being laid is another troubling fact that tempers any hope one might have for the rehabilitation of this offender.
[43] There is simply nothing on the evidence before me that gives me any degree of optimism that Ms. Garcia will not offend again. I see no signs that any of the problems in her life that may explain some of the observed behaviour have been identified and tackled in a serious way.
[44] The availability of probation as a rehabilitation tool offers some prospect of advancing the goal of rehabilitation of the offender but it cannot be considered a silver bullet. A sentence that includes a period of probation would at least favour rehabilitation and mitigate the risk of recidivism to some degree by allowing a period of assessment and monitoring of treatment programs.
[45] It is fair to observe that the rehabilitation prospects of Ms. Garcia, as opaque as they appear to me to be at this time, would not be improved by her being returned to Guatemala even if the community that bears the risk of recidivism would not be our own.
(v) Parity principle and need to separate offenders from society: s. 718(c) and s. 718.2(b) Criminal Code
[46] As of today’s date, Ms. Garcia has been in custody for 405 days. At the rate of 1.5 times credit for pre-sentence custody, Ms. Garcia would be entitled to 608 days (or 20 months) pre-sentence custody credit. The parity principle requires me to have regard to the sentences meted out in similar cases to ensure that offenders in similar circumstances are treated in a similar way. Both sides concur that the parity principle precludes consideration of a sentence as long as 20 months in this case. Whatever sentence I fashion, Ms. Garcia will almost certainly be entitled to pre-sentence custody credit that will exceed that sentence.
(vi) Gravity of the offence and responsibility of the offender: s. 718.1 Criminal Code
[47] The gravity of this offence must be considered in the light of its full context.
[48] Ms. Garcia intentionally caused damage to her rental apartment unit with fire as her chosen tool. She acted alone and bears sole responsibility for what happened. The fire she started was in a multi-unit townhouse complex in a densely populated part of the City of Toronto. The smoke alarm that might have alerted others had been physically removed from the ceiling – either by her hand or with her knowledge. There were neighbours above and on both sides sharing common walls, ceilings and floors. The smoke was dense enough to penetrate into the unit of Mr. Prince next door. Firefighters coming to the scene required protective clothing and breathing apparatus to mitigate the risk to life and health they ran by entering the unit to knock down the fire. This was a serious and dangerous fire that had the potential to have inflicted more harm than was actually done in this case.
[49] This fire was set with the knowledge (or reckless to the fact) that damage to property would ensue. Any fire set in the location and circumstances attending this fire carried with it a significant risk of causing harm to others in addition to the significant damage to property that did occur. Things could have been much, much worse. That they were not is not thanks to Ms. Garcia.
[50] Ms. Garcia knew or ought to have known of the very serious risks she caused other to run involuntarily by her reckless and dangerous actions. The gravity of the offence is not fully captured by the repair bill submitted by the landlord. Any sentence I impose must recognize the gravity of this offence and Ms. Garcia’s degree of responsibility for it.
Analysis and Discussion
[51] Fashioning a sentence in this case has not been a simple or routine task. The thorny immigration issues faced by Ms. Garcia have been something I have wrestled with long and hard. While I have taken these issues into account, in the final analysis I cannot let the immigration issues overtake the process entirely. I must consider all of the objectives Parliament has laid before me and apply them as best I can. Although Ms. Garcia will receive pre-sentence custody credit beyond whatever custodial sentence I might reasonably apply in these circumstances, I must nevertheless arrive at a fit and proper sentence.
[52] Having reviewed all of the factors that weigh in the balance – or at least the most prominent among them – I must actually undertake the weighing.
[53] In this case, I start by looking at the precedents given to me by the parties for what appears to be a reasonable range of sentences as suggested by other cases. The parity principle does not dictate a particular sentence. Precedents do help to set the bookends or range within which a fit and proper sentence is to be found when the points of similarity and dissimilarity are compared.
[54] In Ismail, the sentencing judge had fixed a sentence of twelve months plus probation for arson. At the time, nobody (including the appellant) was aware that the offender was not a Canadian citizen. As the collateral immigration consequences had not been taken into account, the Court of Appeal found that it should determine the sentence taking that consideration into account. In that case, it was noted that the offender had set fire to a blanket in a group home where he was residing. He was a young man (only 19 years of age) with special needs. His family support network was in Canada and not in his country of birth. It was found that the group home where the incident occurred had taken him back and he had made great progress. The appellant had also accepted responsibility for his offence by pleading guilty.
[55] If the circumstances of the offender in Ismail warranted a sentence of one year prior to consideration of his immigration context and six months less a day after giving full consideration to it, then I have great difficulty in concluding that Ms. Garcia’s circumstances do not warrant a more severe sentence. Ms. Garcia presents as very nearly the inverse of Ismail. She did not plead guilty and has demonstrated neither remorse nor any insight into her behaviour. What family she has is in Guatemala even if I am advised that she is estranged from it. The only support network for her in Canada of which I have been made aware are public resources and agencies. She has not made “great progress” towards rehabilitation and has not been invited back by TCHC. The damage inflicted by her actions was not minimal and the circumstances of the offence were very serious. She is not a young, first-time offender. She is in her mid-thirties and has a record. In my view, Ismail supports a sentence at or about the one year range suggested by the Crown after taking full account of the immigration context.
[56] I have not found the case of R. v. Jonah, 2014 ONCJ 19 to be particularly instructive. Mr. Jonah had called 911 himself after setting fire to the family home. The fire was extinguished only after causing considerable damage to the home and his family’s possessions. Mr. Jonah suffered severe injuries himself. The court noted that an extended period of incarceration would impair his ability to support his family who were the main victims of the crime. The court found that this was an isolated incident quite out of character for Mr. Jonah. He was not a danger to re-offend. He was given a sentence of six months imprisonment followed by probation. There is little in common between Ms. Garcia’s circumstances and those of Mr. Jonah. She did not alert 911. To the contrary, she either removed or was aware of the removal of the smoke detector. This is not an isolated incident – she has a prior criminal record. There is nothing in the evidence that gives me any reason to suspect that she is at no risk to re-offend.
[57] I was also directed to the case of R. v. Ligato, 2009 ONCJ 405. Mr. Ligato was arrested after throwing a Molotov cocktail through the window of a business causing $150,000 in damage. He pleaded guilty and had no record. He alleged that he had been paid to do the act. Mr. Ligato was given a sentence of 22 months imprisonment to be served in the community under terms of house arrest under the Electronic Surveillance Program. It does not appear that the commercial premises that were damaged were attached to residential ones. Conditional sentences are no longer available in Ms. Garcia’s case and she does not have the benefit of the mitigating circumstances present in Mr. Ligato’s case.
[58] In my view, a sentence of twelve months imprisonment is a fit and proper sentence in all of the circumstances of this case. This is a serious crime that involved a reckless disregard for the safety and well-being of others apart entirely from the damage actually caused to the apartment itself. That damage was far from insignificant. Ms. Garcia has judicial antecedents even if not strongly connected to this offence in type or in time. There are effectively no mitigating circumstances to bring into the picture even if her personal circumstances are as difficult and tragic as any I have been confronted with.
[59] I have given Ms. Garcia’s immigration situation very serious and anxious consideration. I have tried to approach the problem as far as possible in the manner recommended by Wagner J. in Pham. If there are two appropriate sentences one of which would have less severe collateral consequences or offer better prospects of rehabilitation, then that less severe option should be given very careful consideration. That is not the case here.
[60] In my view, twelve months is already at or about the very low end of the appropriate range of sentence in this case absent any consideration of immigration consequences. It accounts for the very unfortunate circumstances of this offender. I simply do not consider six months less a day to be a sentence that adequately accounts for the gravity of the crime and the aggravating circumstances present here. I cannot allow immigration considerations alone to dictate an outcome that I cannot justify as being within the range of reasonable without regard to them.
[61] I have also decided that a restitution order is appropriate in these circumstances. It may well be that Ms. Garcia will not be in a position to make restitution. However, it is possible that in future she may be. In that case, she should shoulder responsibility for her actions and make an effort to restore some of the damage that she has caused.
[62] I must also note that the final say as to whether Ms. Garcia will remain in Canada or be subject to a removal order is not mine to make. My decision may have the collateral impact of denying her an eventual appeal should removal proceedings be commenced but it does not do more than that. I do not know whether the Minister will consent to removal proceedings being commenced and I do not know whether humanitarian and compassionate appeals will be rejected. The final decision belongs to the Minister applying the criteria and affording the due process that Parliament itself has dictated. We must all take comfort in those assurances.
Disposition
[63] For the foregoing reasons, I have decided to impose the following sentence:
a. Twelve months imprisonment - given pre-sentence custody credit of 405 days at 1.5 times, Ms. Garcia has already served this sentence in full and will be released from these charges at least after processing today;
b. Probation for a period of two years from today’s date subject to the following terms:
i. Report to probation officer within 48 hours and thereafter as directed;
ii. Attend such counselling and therapy programs as may be directed by the probation officer and provide such consents and waivers as may be required to enable your probation officer to monitor your progress in these programs;
iii. Live at such address as has been approved by your probation officer;
iv. Have no contact with Mr. Hodge, Mr. Prince nor come within 100 metres of 35 Henry Lane Terrace in Toronto;
c. An order for restitution in the amount of $15,809.11 in favour of Toronto Community Housing Corporation shall issue;
d. An order for the collection of a sample of bodily fluids for DNA shall also be made.
[64] It is recommended that any counselling program to be followed should include treatment of drug addiction issues.
___________________________ S.F. Dunphy J.
Released: August 28, 2019