Court File and Parties

Court File No.: CR-17-4085 Date: 2020-02-28 Released Orally: February 28, 2020 Released in Writing: March 3, 2020

Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Mitchell O’Hanley, Offender

Counsel: Tim Kavanagh, for the Crown Patricia Brown, for the Offender

Heard: January 17, 2020

Reasons for Sentence

King J.

Background

The Convictions

[1] After a non-jury trial, Mr. O’Hanley was convicted of:

1. Dangerous driving, contrary to s. 249(1)(a) of the Criminal Code of Canada, R.S.C. 1985, c. C-46; and
2. Arson contrary to s. 434 of the Criminal Code.

The Facts

[2] The events giving rise to these convictions occurred on April 30, 2016.

[3] The offender was in a personal relationship with the complainant, Lindsey Root.

[4] Ms. Root was the mother of two children. The father of the youngest child was Mr. John Covelli. Ms. Root and Mr. Covelli had been in a personal relationship that Ms. Root had terminated some months earlier.

[5] In the period following her communication to Mr. Covelli that she intended to terminate the relationship, Ms. Root made plans to find a new residence for herself and her two children.

[6] She eventually leased a residence at 1228 Shoreline Drive in Lakeshore, Ontario. The owner and landlord of that property was Ms. Stacey Tobin. The lease between Ms. Root and Ms. Tobin commenced on May 1, 2016. However, Ms. Root had obtained permission from Ms. Tobin to enter the premises before that date to prepare the home for the arrival of her children. Among other steps taken, Ms. Root had done some painting and child proofing.

[7] On Saturday, April 30, 2016, Ms. Root worked in the morning and then attended at the residence of Mr. O’Hanley in Windsor. They made plans for Mr. O’Hanley to attend at the Shoreline Drive property later that evening.

[8] Ms. Root went to the Shoreline property to continue preparation work. Later that afternoon, Mr. Covelli arrived bringing belongings of Ms. Root and the children from his residence. He had used a truck belonging to his grandfather to transport these items. After dropping off that property, he left to return the truck and deliver a load of children’s toys.

[9] Sometime after the departure of Mr. Covelli, Mr. O’Hanley arrived at the Shoreline Drive residence much earlier than when Ms. Root expected. While the offender was at the property, Mr. Covelli returned in his personal vehicle.

[10] A heated discussion ensued between Mr. Covelli and Mr. O’Hanley on the west side lawn of the house. In response, Ms. Root locked the main entrance door of the house. Eventually the offender knocked out the kitchen window and he and Mr. Covelli re-entered the house. A heated discussion ensued between the three individuals. Mr. O’Hanley left the premises. Then Mr. Covelli left.

[11] The noise caused by these heated discussions caught the attention of a nearby neighbour. He came over to the Root property. On his way over, he noticed Ms. Root’s windshield had been damaged and advised her of this fact.

[12] A short time later, Mr. Covelli returned to Shoreline Drive to check on Mr. Root. They left the property for Mr. Covelli’s residence in his vehicle.

[13] While travelling westbound on Highway #2 / E.C. Row Expressway towards the Covelli residence in Tecumseh, Ms. Root and Mr. Covelli observed the offender driving by eastbound. He was travelling on that roadway. The offender was driving the black matte coloured BMW sedan with a loud exhaust system that he had driven to the Shoreline Drive residence earlier.

[14] Ms. Root, Mr. Covelli and various witnesses in other vehicles also travelling westbound on that portion of the highway observed Mr. O’Hanley turn sharply (180 degrees) on the highway. He then commenced travelling westbound (at times in the eastbound lane). He overtook the Covelli vehicle. He then again turned direction on the highway 180 degrees and began driving eastbound in the westbound lanes towards the traffic, including at the Covelli vehicle, before veering off.

[15] As the Covelli vehicle approached the stoplight at Manning Road, it was in the left westbound lane of the highway and was the first vehicle waiting at the stop light. Mr. O’Hanley drove his vehicle between the vehicles awaiting the light and wedged the left side of his vehicle against the front right of the Covelli vehicle. This prompted Mr. Covelli to briefly exit his vehicle.

[16] Shortly thereafter, Mr. O’Hanley drove away from the intersection. Mr. Covelli pulled his vehicle over and into a nearby parking lot. He spoke with the driver of another vehicle who had also pulled over.

[17] Ms. Root and Mr. Covelli (as well as at least four other parties) called the Tecumseh detachment of the Ontario Provincial Police (“OPP”) to report the incident. Ms. Root and Mr. Covelli then attended at the OPP detachment to provide statements. Before they left the detachment, they were advised that the Shoreline Drive residence was on fire.

[18] I accepted the evidence of the Fire Marshall, Mr. Ross, that the fire was deliberately set.

[19] With respect to evidence regarding the arson, that evidence and decision are set out in R. v. O’Hanley, 2019 ONSC 1856.

Sentencing Considerations

The Offender

[20] I have reviewed and considered the Pre-Sentence Report (“PSR”) dated August 6, 2019.

[21] Mr. O’Hanley was 22 years old at the time of the offences.

[22] He has no previous criminal record.

Mitigating Factors

[23] Mr. O’Hanley is a youthful first-time offender.

[24] He has good employment with a reputable and supportive employer.

[25] He has strong family support from his mother and father. They attended the trial throughout.

[26] There were several positive letters of support provided to the court. Mr. M. Amonte, of Facca Construction, commented on Mr. O’Hanley’s work on various bridge projects including one at Kapuskasing, Ontario. Mr. O’Hanley is considered a valued employee.

[27] Dr. James Harvey and his spouse, Ms. Corienne Harvey, each provided positive letters of character. It is noted Ms. Harvey is his godmother. Ms. Patricia Prior is Mr. O’Hanley’s next door neighbour. Again, she wrote positively about Mr. O’Hanley’s activities and character. Finally, the court received a letter from Mr. Tyler O’Hanley, the younger brother of the offender. The letter speaks to the qualities of Mr. O’Hanley and the positive influence he has been to him over the years.

[28] All of these letters speak highly of the character of Mr. O’Hanley. I have given these letters significant consideration.

[29] From the period immediately following April 30, 2016 to and including the date of the sentencing hearing the offender has taken a number of steps to improve himself, as follows:

1. He entered into detox on May 2, 2016 (within 48 hours of his arrest) to deal with drug and alcohol issues.
2. To his credit, he has managed to successfully tackle these addiction issues.
3. He has obtained his Provincial Red Seal for Construction Craft Worker in late 2019 with an honour’s grade of 86%. He is a certified welder.

Aggravating Factors

[30] I consider the following aggravating factors:

1. Arson is a serious criminal offence prosecuted only by indictment and offenders are subject to a maximum sentence of 14 years.
2. The arson resulted in the complete destruction of the residence at 1228 Shoreline Drive. The property was not rebuilt and the owner, Ms. Tobin, was deprived of a viable rental property. Exhibit No. 8 on this sentencing hearing is a letter from The Co-Operators General Insurance Company, Claims Department, dated September 16, 2016, showing a payout of $167,324.27 in damages as follows: Demolition Costs $ 23,055.39 Contents (appliances) 4,200.00 Loss of Rental for 6 months 6,300.00 Dwelling and Detached Structure 133,769.28 Ms. Stacy Tobin received all of these monies, except the demolition costs which were paid directly to two contractors.
3. Ms. Root lost personal property for herself and her children that was not insured.
4. While it was obvious to the offender that the residence was unoccupied at the time the fire was set, it could have also engaged the beige house on the same tract of land located a few feet to the south of the Root residence. The offender would not have known whether that residence was occupied. As well, the fire could have affected the residences on the adjacent properties.
5. The fire also put the firefighters who attended the scene at risk, particularly since they had to take the steps necessary to ascertain if anyone was trapped inside the burning structure.
6. With respect to the dangerous driving incident, Mr. O’Hanley was driving at a high rate of speed, at times travelling in the wrong direction on a multi-lane expressway-type roadway while there were numerous other vehicles travelling in the westbound lanes along with the Covelli vehicle. All of these persons were put at risk. Fortunately there was no accident or physical injuries.

General Sentencing Positions

Arson

[31] Crown counsel submits a term of incarceration in a penitentiary for three years is appropriate for the arson conviction.

[32] Emphasizing the mitigating factors described above, counsel for Mr. O’Hanley takes the position that appropriate sentencing objectives can be achieved without a period of incarceration. Counsel urged the court to conclude that the interests of society can be met by imposing a suspended sentence with up to three years of probation.

[33] Alternatively, if a custodial sentence must be imposed it should be in the low range of jail time given the significant steps Mr. O’Hanley has taken to improve himself, and the fact that he is gainfully and responsibly employed. Counsel suggested an intermittent sentence up to 90 days would be sufficient.

Dangerous Driving

[34] There is not significant disagreement of counsel on the appropriate sentence for dangerous driving. Crown counsel submits that a fine of $2,000 and a driving licence suspension for six (6) months is an appropriate penalty. Counsel for the offender submits, as Mr. O’Hanley had to serve a six month administrative suspension of his licence at the time of his arrest, he should not be subject to another period of suspension at this time. Counsel notes, in particular, such a suspension would affect his ability to attend work.

The Law

Legal Parameters

[35] A conviction under s. 249(1)(a) of the Criminal Code provides for a penalty of imprisonment for a term not exceeding five years.

[36] A conviction under s. 434 of the Criminal Code provides for a penalty of up to 14 years imprisonment.

Sentencing Principles

[37] I have reviewed and considered the fundamental principles enunciated in the Criminal Code. Section 718 prescribes that a just sentence should have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.

[38] The fundamental principle of proportionality in sentencing is enshrined in s. 718.1 of the Criminal Code. That is, “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

[39] As well, I have considered s. 718.2 of the Criminal Code which provides:

A court that imposes a sentence shall also take into consideration the following principals:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (i) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, shall be deemed to be aggravating circumstances; (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.”

Range of Appropriate Sentence

[40] Both parties provided decisions setting out a range of sentences for similar offences. The quantum of sentence imposed varied based on the specific elements of each case as follows:

(i) Arson

a) Own Property

[41] The sentences imposed for an individual convicted of setting fire to their own property are generally lower than where the property is owned by someone else. However, in many of the cases presented, the offender either co-owned, co-resided or otherwise, set fire to residences of domestic partners. See: R. v. Bos, 2016 ONCA 443, 131 O.R. (3d) 755 (18 months for romantic partner’s house); R. v. Pidgeon, 2016 ONCJ 334, [2016] O.J. No. 3010, (five months where no intent to hurt anyone but firefighter was injured and mental health of the offender was a factor); R. v. Jonah, 2014 ONCJ 19, [2014] O.J. No. 186 (offender set fire to own home after domestic dispute – six months).

[42] In R. v. Fehr, 2013 MBQB 226, 297 Man. R. (2d) 170, the offender received two years less a day for arson of his own residence. The sentencing judge held the case law required emphasis on deterrence and denunciation as arson necessarily endangers the public and first responders.

[43] In R. v. Wright, [2004] O.J. No. 3321 (S.C.), the offender was sentenced to two years less a day in a reformatory for arson of the home he shared with his wife. He was also found guilty and sentenced to assault arising from the same altercation with his wife. The sentencing judge found it was clear that the offender’s actions were a blatant display of anger toward his wife. He accepted responsibility for his actions in the pre-sentence report and expressed remorse and a desire to change his anger issues. He was a second-time offender, having previously been convicted in 1997 of assault causing bodily harm.

b) Knowledge of whether premises are occupied

[44] Not surprisingly, the sentences imposed are generally higher where the offender knows there are persons inside the structure set on fire or is indifferent to that possibility.

[45] In this regard, I have considered the following cases:

(a) In R. v. Van-Luyk, 2018 ONCJ 807, [2018] O.J. No. 6083, the court imposed a sentence, for arson causing damage to property (a vehicle) and mischief endangering life, of 18 months for both, served concurrently. (b) In R. v. Sans, 283 N.B.R. (2d) 118 (Q.B.), [2004] N.B.J. No. 415, the court imposed a sentence of two years less a day for a 37-year-old first-time Indigenous offender who pleaded guilty to setting fire to a residence of a former boyfriend as he and two others slept within the residence. (c) In R. v. C.H.J., 2006 BCPC 278, [2006] B.C.J. No. 1386, the court imposed a 30 month jail sentence for a 30 year old offender who pleaded guilty to setting fire to the apartment of his ex-partner in the early hours when it was reasonable to assume other apartments in the multi-unit building would be occupied and, in fact, were occupied.

c) Motive

[46] Revenge arising out of issues in a relationship is also a factor to be considered. See: R. v. Bos. On an appeal from sentence, Tulloch J.A. upheld a sentence of 18 months where an offender set fire to her romantic partner’s house. The court held that a conditional sentence was not appropriate.

[47] In R. v. Bevacqua, 2014 ONSC 6279, [2014] O.J. No. 5130, Ricchetti J. imposed a four and a half year sentence for arson endangering life and concurrent two and a half year sentence for arson damaging property for an offender convicted after trial. The offender set fire to and partially damaged a residence he shared with his newly estranged wife and children while it was occupied and the children were asleep.

[48] Of further relevance factually was the decision of T. Ducharme J. in R. v. Sollosy, 2017 YKSC 12, 138 W.C.B. (2d) 75. In that case, the offender was convicted of arson for setting fire to the home he shared with his wife and child. He set the fire after he had been drinking, knowing there was no one inside. The sentencing judge viewed the appropriate range of sentence for offences of this nature to be between 12 months and three years. Taking into account that the offender committed the offence during a time of high emotional turmoil while intoxicated, he maintained steady employment, and there was no evidence of planning or malicious motive, he was sentenced to one year imprisonment and three years probation.

[49] I have also noted the consideration given by the sentencing judge in R. v. Boglie, 2017 BPPC 58, [2017] B.C.J. No. 396, following convictions in a situation arising from the mental illness of the offender. While there is no such suggestion regarding the health of the offender in this case, I have considered the comments of Merrick J. with respect to the following: (i) high emotional turmoil at the time of the offence; (ii) the offender maintained steady employment; and (iii) no evidence of planning. In that case, a sentence of one year in prison and three years of probation was imposed.

[50] Both parties provided the court with the decision of R. v. Jonah, where the offender attempted to set fire to his residence and that of his common-law partner but then attempted to put out the fire and contacted 911. The first-time offender was sentenced to six months imprisonment and it was noted the offence was serious and endangered the lives of neighbours and first responders.

d) General Arson Considerations

[51] Arson is a serious offence. Denunciation and deterrence (both specific and general) are the paramount considerations.

[52] I acknowledge and applaud all that Mr. O’Hanley has done since these charges were laid. He has been of good behaviour, maintained excellent employment with a reputable bridge contractor that values his services. As mentioned, it is significant that he recently obtained his Provincial Red Seal certification.

[53] However, these efforts, while laudable, cannot fully overtake the requirement that in these circumstances a conviction for arson, even by a first-time offender, requires a period of incarceration necessary to give appropriate gravitas to the principles of denunciation and deterrence. Persons in our society need to be aware that arson is a serious offence that carries with it (except in the most extreme circumstances) a period of incarceration.

[54] No such circumstances exist in this case. Arson places occupants, neighbours and first responders at risk. Deliberately set fires can be uncontrollable. Regardless of the consequences an arsonist may seek or predict, a variety of additional and potentially catastrophic outcomes may occur. For example, explosion is one such potentially unpredictable outcome.

[55] In the absence of any mitigating factors, the actions of the accused in setting this residence on fire might attract a sentence of three years or more. However, I have taken into account the conduct of the accused, his age, gainful employment, and the fortunate fact that no one was hurt (as the offender knew the house was empty when he set the fire) as mitigating factors. I have also given significant weight and credit to the actions of Mr. O’Hanley in improving his life and improving his skilled trades qualifications. However, while commendable, his post-offence actions cannot obviate the need for a period of incarceration to properly address the issues of deterrence and denunciation.

[56] Arson is a serious offence that can cause serious personal, emotional and economic harm to victims.

[57] In this instance, I note the following:

1. A single mother with two children lost her place of residence.
2. She also lost significant personal property that was not insured.
3. The neighbours had to flee from their homes to a position of safety, less the fire visited their residences. In particular, the occupants of the beige front house could have been at significant risk of injury had the fire not been contained to the Root residence, as it was located just a few feet away.
4. While she received insurance proceeds, the landlord, Ms. Tobin, lost her previous residence and rental property. She was only entitled to six months rental income pursuant to her contract of insurance.
5. Firefighters were put at risk as they would have had to ascertain whether there were occupants who needed assistance to escape the fire and then had some risk while extinguishing the fire.

[58] In summary, my assessment of the evidence in this case leads to the inescapable conclusion that Mr. O’Hanley has committed a serious offence. As stated by Tulloch J.A., at para 127 of R. v. Bos:

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 eg. R. v. Mirzahkall, 2009 ONCA 905, 257 O.A.C. 27; R. v. Fox, [2002] O.J. No. 2496; R. v. Himschall (2003), 176 C.C.C. (3d) 311 (Ont. C.A.).

[59] In fashioning a fit and fair sentence, I am also guided in my deliberations by the decision of the Ontario Court of Appeal in R. v. Priest (1996), 110 C.C.C. (3d) 289 (Ont. C.A.), where Rosengerg J.A., writing for the court, emphasized the need for a pre-sentence report for a first-time offender to assess whether a sentence other than imprisonment would be appropriate. He goes on to state at p. 294-295:

The primary objectives in sentencing a first offender are individual deterrence and rehabilitation. Except for very serious offences and offences involving violence, this court has held that these objectives are not only paramount but best achieved by either a suspended sentence and probation or a very short term of imprisonment followed by a term of probation.

[60] In this case, we have a serious violent offence – arson. The circumstances warrant that Mr. O’Hanley must receive a sentence of imprisonment. No other type of sentence would be appropriate in these circumstances without significantly, if not totally, disregarding the key sentencing considerations of deterrence and denunciation.

[61] In reaching this conclusion, I have taken into account a further passage from Priest, at p. 296, that once a trial judge has made a decision that a jail sentence is required,

...it is a well-established principle of sentencing laid down by this court that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence.

[62] The sentence I am imposing with respect to arson fairly addresses the issues of denunciation and deterrence, but also gives appropriate and necessary consideration to the rehabilitation of the offender.

[63] Mr. O’Hanley, please stand.

1) Arson – Section 434

[64] I am impressed with the steps taken by you, Mr. O’Hanley, to better yourself to be a responsible member of our society in the years ahead. I am inclined to predict you will never be involved again with the criminal justice system. Were you to have been found guilty of a lesser offence in less serious circumstances, you might well be a candidate for a suspended sentence with a period of probation. However, as indicated, in the circumstances of this offence of arson I must impose a period of incarceration to give adequate weight to denunciation and deterrence.

[65] Having said that, I note the Crown seeks a jail sentence of three years. Crown counsel have notionally reduced their position proposing a sentence of 42 months as a result of the circumstances of the offender. While I cannot ignore or under-weigh the considerations of denunciation and deterrence, I find a sentence in the range of three years places inordinate weight on denunciation and deterrence and would have a negative impact on your prospects for rehabilitation.

[66] Mr. O’Hanley, I am fashioning a remedy that balances those principles with an important helping of rehabilitation. Taking you out of the working world for three years would jeopardize your continued progress as a skilled trades employee doing valuable, rewarding work and contributing to society.

[67] In following the principles espoused in R. v. Priest, I sentence you to a period of imprisonment for a term of 15 months.

2) Dangerous Driving – Section 249(1)(a)

[68] With respect to the offence of dangerous driving contrary to the provisions of s. 249(1)(a) of the Criminal Code, I sentence you to a fine of $1,750 and a licence suspension for a period of 30 days.

[69] I am encouraged by the fact that you are gainfully employed as a welder/skilled trades worker. I am going to give you six months to pay this fine following the period of incarceration.

[70] The 30-day driver’s licence suspension is less than would normally be imposed. However, you are gainfully employed and require your vehicle to work. The period of inconvenience with a 30-day licence suspension is to emphasize deterrence and denunciation but also recognizes that your employment is, in large part, a significant component of your rehabilitation.

[71] This 30-day period will commence the day after you are released from your period of incarceration for the arson conviction.

3) Ancillary Orders

[72] Following your release, you will be subject to a term of probation for 24 months. While on probation, you will attend such counselling as directed by your probation officer, including but not limited to the Partner Assault Response Program, and substance abuse counselling. You will report to a probation officer immediately on release and thereafter as directed.

[73] During your period of incarceration and probation you will not communicate, directly or indirectly, by any physical, electronic or other means with Lindsey Root (also known as Lindsey Burton-Root), Jonathan Covelli, and/or Stacy Tobin.

[74] I also order you to submit to a forensic collection and storage of your DNA, pursuant to s. 487.051(3)(b) of the Criminal Code. I note that arson contrary to s. 434 is a secondary designated offence.

4) Restitution

[75] I make no order for restitution. In the circumstances of this case, those issues are best left to potential civil action and appropriate remedies.

[76] And, that is the sentence I am imposing

“original signed and released by King J. ”

George W. King Justice

NOTE: It was confirmed with counsel in open court that the period of probation attaches only to the arson conviction.

Released Orally: February 28, 2020 Released in Writing: March 3, 2020