Court File and Parties

Court File No.: 16-A10019 Date: 2020-03-30 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Gaston Nicholas, Accused

Counsel: John Semenoff, for the Crown Michael Swinwood, for the Accused

Heard: February 26, 2020

Reasons for Sentence

Aitken J.

The Offences

[1] On April 4, 2019, Ratushny J. found Gaston Nicholas criminally responsible for and guilty of two counts of arson under s. 434 of the Criminal Code, R.S.C. 1985, c. C-46.

[2] Mr. Nicholas, by an agreed statement of facts, admitted to setting fire to two homes on February 28, 2016. The facts agreed to in the agreed statement of facts were the following:

[3] At approximately 9 a.m. on February 28, 2016, Mr. Nicholas set fire to 1248 Walkley Road in Ottawa, a house into which he was moving on March 1, 2016 with his partner, Joanne Charron. He did so by starting fires in the sunroom on the upper floor and in the main basement room using an open flame and a volatile ignitable liquid vapor. After setting the fires, Mr. Nicholas left the house, telling a neighbour that there was a fire in the house and that he had called 911. In fact, he had not made that call. Mr. Nicholas got into his vehicle and left the scene. As he was driving away, a portion of the residence fell on to his vehicle. Mr. Nicholas continued to drive away. Ultimately, this fire resulted in a loss of $541,835.

[4] Shortly before 3:30 p.m. on February 28, 2016, Mr. Nicholas set fire to 4100 Leitrim Road in Ottawa, a house where he had been residing for over 20 years. He started the fire using an ignitable liquid on the carpet in one of the rooms in the house. Ultimately, this fire resulted in a loss of $463,312.71.

[5] After having set fire to the Leitrim House, Mr. Nicholas was spotted by the police driving on a highway near Ottawa. There was a police chase prior to Mr. Nicholas being arrested. At the time, he had extensive burnt hair on the back and front of his head, including his eyebrows, along with multiple burns and skin damage on his hands. He had phoned his spouse while driving, telling her that he would see her in heaven. Mr. Nicholas was hospitalized that evening and made numerous suicidal statements in the presence of medical personnel related to his shame for his recent actions.

[6] Mr. Nicholas advised medical personnel that he had set the fire at the Leitrim House to get back at his landlord for terminating his lease. He had set the fire at the Walkley House because the landlord there was agitated and rude.

[7] Ratushny J. has retired from the court. It falls to me to sentence Mr. Nicholas for these two arson convictions.

The Accused

[8] Mr. Nicholas was 78 years old when he deliberately set the two house fires. He is now 82 years of age and is in poor physical and mental health. He relies heavily on his partner, Joanne Charron, with whom he has been in a relationship since 1988. According to her, Mr. Nicholas suffers from the following health issues: uncontrolled diabetes, a platelet disorder, skin problems, vision problems, balance problems, a loss of appetite, memory problems, changes in personality, depression, sleeping problems, feelings of isolation, apathy, difficulty concentrating, low self-esteem, and anxiety. Mr. Nicholas attends medical appointments at least twice a week.

[9] Mr. Nicholas is of Aboriginal heritage and identifies as Mohawk. The author of the Gladue Report investigated systemic issues that could have impacted Mr. Nicholas, including abuse, poverty, racism, substance abuse, family attendance in residential schools or institutional schools, historical traumas, and cultural dislocation. These issues either did not apply to Mr. Nicholas’ life, or he was unable to explain how one or more of them did apply.

[10] Mr. Nicholas came from a large family, having 8 siblings or step-siblings. Mr. Nicholas had a close relationship with his mother and father and his siblings. All have predeceased him, and their deaths have been hard on him. Mr. Nicholas has four children. He is estranged from the older two and has a good relationship with the younger two.

[11] Mr. Nicholas left school in grade 4 so that he could work alongside his father at the Dominion Bridge Company.

[12] When Mr. Nicholas was 20, he was convicted of manslaughter in the drowning death of his wife and sentenced to 6 years. While he was serving his sentence at Saint-Vincent-de-Paul Penitentiary in Laval in 1962, a prison riot broke out. Mr. Nicholas was blamed for starting the riot. He was sentenced to an additional 14 years. After an official inquiry, Mr. Nicholas’ sentence was commuted to 7 years. During Mr. Nicholas’ years of incarceration, he witnessed much violence in the institutions and was subjected to periods of solitary confinement and instances of brutality by the prison guards.

[13] Following Mr. Nicholas’ release from prison, he and a friend established l’Agence Sociale Spécialisée, a halfway house for offenders that had a workshop where its residents could have employment. Mr. Nicholas was also involved with distributing food, clothing, and bus passes to released offenders and to people living on the street. He worked with others to develop Victoria Island as a place of particular significance for Indigenous peoples in the Ottawa area. In 2005, Mr. Nicholas was awarded “Man of the Year” from the Odawa Fellowship for his work in helping Indigenous people in Ottawa.

[14] Mr. Nicholas established the Hope Organization to assist in the treatment of people with addictions and Les Gentilshommes, an organization that employed released offenders who were looking for work. As well, Mr. Nicholas was the founder and executive director of the Bureau Canadien des Droits de la Personne, which aimed to support and train released offenders and marginalized citizens while they reintegrated into society. The Bureau Canadien closed in 2012, precipitating Mr. Nicholas’ retirement. As was attested to in the many letters from community leaders filed as an exhibit to the sentencing hearing, the Bureau Canadien, and particularly Mr. Nicholas, made a huge contribution in our community to the reintegration of former inmates into society.

[15] Ms. Charron explained that the closing of the Bureau Canadien was very hard on Mr. Nicholas. She thinks he fell into a depression at the time. She described him in 2019 as having no interests, being isolated, experiencing generalized anxiety, feeling like he has lost his mind, and feeling ashamed. She considers him insecure and says he often speaks of death. In her view, his physical and mental health have deteriorated significantly since 2012.

[16] Ms. Charron’s evidence was that, prior to the fires, Mr. Nicholas had become increasingly lethargic and sad, but also increasingly angry with the Leitrim House landlord. Although previously Mr. Nicholas had occasionally been forgetting small things, he had never forgotten the date and had not previously been as disorganized as he was the night of the fires.

[17] In the months immediately following the fires, Mr. Nicholas lived alone in an apartment and was able to handle the normal activities of daily living, including bathing, showering, dressing, grooming, eating, and toileting. As well, he was able to take care of his finances, use the telephone, take his medications, prepare meals, and do housekeeping and laundry.

[18] Numerous psychiatric and psychological assessments were done of Mr. Nicholas following the fires to determine whether he should be held criminally responsible for the arsons.

[19] In an August 2016 report, Dr. Dufour, a forensic psychiatrist, assessed Mr. Nicholas as having possible vascular dementia of light intensity and possible adjustment problems with depressive tendencies. In a November 2016 report, Dr. Carriere, a geriatric psychiatrist, provided a working diagnosis of a major neurocognitive disorder, most likely vascular cognitive impairment with associated neuropsychiatric symptoms characterized by psychosis with delusions of persecution. In a May 2017 report, Dr. Van Gijseghem, a psychologist, diagnosed Mr. Nicholas as very probably suffering from paranoid personality disorder. He also observed a very important deterioration in his cognitive abilities. In a March 2018 report, Dr. Watts, a forensic psychiatrist, after having reviewed all of the prior medical records and expert medical reports relating to Mr. Nicholas, diagnosed Mr. Nicholas as suffering from vascular dementia of moderate severity and having narcissistic personality traits based on his pattern of grandiosity and need for admiration over his adult life. In an October 2018 report, Dr. Van Gijseghem opined that the dementia and cognitive impairment exhibited by Mr. Nicholas would have seriously undermined judgment and discretional and logical thinking.

[20] Ratushny J. found at the completion of the hearing regarding Mr. Nicholas’s criminal responsibility that, at the time of the offences, Mr. Nicholas suffered from some degree of vascular dementia, a mental disorder impairing his cognitive functioning, but that he was still high functioning at that time. She found that he appreciated the nature and quality of his actions and knew they were morally wrong. He acted as he did “in a moment of miscalculated anger”. Thus, he was criminally responsible for his actions.

[21] Further assessments were done regarding Mr. Nicholas’s health leading up to the sentencing hearing.

[22] Mr. Nicholas’ family physician reported that Mr. Nicholas’ diabetes requires daily monitoring, with blood work every three to four months. He should also follow a diabetic diet. As well, further blood work is done on a regular basis to monitor for thrombocytopenia.

[23] In November and December 2019, a psychosocial assessment and a psychiatric assessment were done at the Geriatric Psychiatry Community Services of Ottawa (“Geriatric Psychiatry Services”). It was observed that Mr. Nicholas, who is currently being followed by the Bruyere Memory Program, has on-going deficits in cognition and functional status likely secondary to cerebrovascular disease. He has difficulty managing his diabetes – both in terms of his diet and in terms of his medication. He is not able to cook for himself, and his ability to do household chores is limited. He dresses independently, but not always in clean clothes. It is likely that he has incontinence issues. In general, his ability to take care of his own hygiene needs has deteriorated since 2016. He should use a walker due to his lack of balance, but does not always do so. Insight into his cognitive and functional decline is very limited and he presents with impaired judgment. Mr. Nicholas relies on Ms. Charron for decision-making. At the time of the Mini Mental Status Examination, Mr. Nicholas was disoriented as to time, oriented as to place, able to register three words but not recall them without assistance, and had difficulty with the mathematics and drawing portion of the examination.

[24] In terms of living arrangements, the Geriatric Psychiatry Services recommended that, as his needs increase, Mr. Nicholas live in a more structured environment, such as Montfort Renaissance. At the present time, the Geriatric Psychiatry Services recommended that he attend an Adult Day Program.

Position of the Parties

[25] The maximum sentence that can be imposed on Mr. Nicholas for each of the arsons is imprisonment for a period not exceeding fourteen years under s. 434 of the Criminal Code.

[26] Crown counsel is seeking an intermediate reformatory sentence of approximately 12 months to provide a message of specific and general deterrence, but modified from the lengthier penitentiary sentence that would be more in the normal range to take into account Mr. Nicholas’ advanced age and his diminished mental health and cognitive capacity, both at the time of the fires and currently.

[27] Defence counsel is seeking a suspended sentence with probation of two years, taking into account Mr. Nicholas’ advanced age; his physical health issues; and the depression, dementia, and paranoia from which he was suffering at the time he committed the offences. Defence counsel also points out that, during the four years when Mr. Nicholas has been released on bail, he has complied with all conditions and has lived a law-abiding life.

Analysis

[28] In R. v. Prioriello, 2012 ONCA 63, 288 O.A.C. 198, at paras. 11-12, the Ontario Court of Appeal stated that:

In order for a mental illness to be considered as a mitigating factor in sentencing, the offender must show a causal link between his illness and his criminal conduct, that is, the illness is an underlying reason for his aberrant conduct: R. v. Robinson, [1947] O.J. No. 545 (C.A.).

Further, there must be evidence that a lengthy sentence would have a severe negative effect on the offender such that it should be reduced on compassionate grounds.

[29] Based on the psychiatric and psychological assessments of Mr. Nicholas done shortly after the offences in question, I am satisfied that there was a causal link between the depression and vascular cognitive impairment he was experiencing at the time and the conduct he exhibited by committing arson. I am satisfied that the anger he felt toward the two landlords was exacerbated by the neuropsychiatric symptoms of psychosis with delusions of persecution associated with his dementia and cognitive impairment. I am satisfied that as a result of his mental status at the time, Mr. Nicholas’ judgment and discretional and logical thinking was undermined.

[30] At the conclusion of the sentencing hearing, I asked for further evidence regarding the ability of our correctional institutions to meet the health needs of someone like Mr. Nicholas who is elderly, who suffers from advancing dementia and cognitive impairment, and who has reduced capabilities to manage personal hygiene and toileting. I also sought further evidence as to how our correctional institutions ensure that inmates with multiple morbidities receive the medical attention they require. In addition to his dementia and cognitive impairment, Mr. Nicholas has poorly controlled diabetes and requires regular monitoring for thrombocytopenia.

[31] Prior to the resumption of the sentencing hearing to enable Crown and Defence counsel to present any further evidence they might wish in regard to the issue of how our correctional institutions would manage the special needs of Mr. Nicholas, the Covid-19 pandemic arrived in our midst. The Superior Court of Justice has suspended operations indefinitely in an effort to curb the spread of Covid-19 and protect all litigants and other participants in the justice system. All criminal matters scheduled to be in court in the coming months have been adjourned to early June to be spoken to, with no certainty as to when they may ultimately be heard. Every day, the Public Health Agency of Canada, the provincial and municipal medical officers of health, and our governments at all levels are advising Canadians to engage in social distancing and not to be closer than two metres to others. I am well able to take judicial notice of the overcrowded conditions within our correctional institutions and the inability of inmates to engage in social distancing.

[32] As well, everyone is being advised to wash their hands frequently, to sneeze or cough into their sleeve or into a tissue that they immediately and safely discard, and not to touch their faces with unwashed hands. All of these directives could be in place for months. The evidence is that Mr. Nicholas is not capable of tending to matters of personal hygiene with any consistency or regularity. He relies heavily on Ms. Charron to assist him with personal care. There is ample evidence in the assessment reports that Mr. Nicholas has difficulty learning new tasks or routines. Therefore, not only would Mr. Nicholas not be able to keep a safe distance from others within the institution, but he would also not benefit from increased vigilance to mitigate the results of any contact with the virus.

[33] From the extensive reporting being done in our media regarding available data on Covid-19 and the reports provided by our public health officials, I can take judicial notice of the particular vulnerability of elderly individuals if they get Covid-19. The death rate among those in their eighties who get Covid-19 is much higher than it is for younger cohorts.

[34] Considering all these factors, I conclude that any period of incarceration for Mr. Nicholas would have a severe negative effect on him such that he should not be sentenced to jail on compassionate grounds.

[35] I am also keeping in mind that Mr. Nicholas showed remorse and shame after the events in question. They were out of character for him. He prided himself in helping others move on from a life of crime to a productive life within society. He felt he could be an example to others in this regard. What happened on February 28, 2016 shattered Mr. Nicholas’ self-image. Mr. Nicholas accepts that what he did was wrong. He is not in need of rehabilitation. Nor is there any evidence that Mr. Nicholas needs to be separated from society in order to protect society.

Conclusion

[36] I am suspending the passing of sentence and placing Mr. Nicholas on probation for a period of three years. The conditions of the probation order are the following:

• Keep the peace and be of good behaviour;
• Abstain from communicating, directly or indirectly, with the victims of the arson, Guy Villeneuve and Atallah Atallah;
• Appear before the court when required to do so by the court;
• Notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation;
• Report to a probation officer within two weeks after the making of the probation order and thereafter when required by the probation officer and in the manner directed by the probation officer;
• Remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the probation officer;
• Abstain from owning, possessing or carrying a weapon;
• Continue to participate in the Bruyere Memory Program and any additional programs, such as an Adult Day Program, that might be recommended from time to time by Mr. Nicholas’ medical care professionals; and
• Take advantage of personal support and household services provided to vulnerable seniors by local agencies, as recommended by Mr. Nicholas’ medical care professionals.

[37] In addition, I make the following order:

• A weapons prohibition order under s. 110(1)(a) for 10 years.

[38] Crown counsel has not persuaded me that a DNA order is required in the circumstances of this case. Mr. Nicholas has a very dated criminal record. Following his release from penitentiary in the 1960s, Mr. Nicholas lived a law-abiding life and, in fact, worked hard at helping other former inmates rehabilitate and integrate into society. Mr. Nicholas has continued to live a law-abiding life while on bail following the arsons. The offences occurred when Mr. Nicholas was suffering from depression and had impaired judgment and reduced anger management control in part as a result of reduced cognitive capacity. Considering Mr. Nicholas’ age, his medical issues, his reduced mobility, and his dependency on others, I conclude that very little would be gained in terms of the protection of the public by having Mr. Nicholas submit to a DNA test.

[39] In my view, the sentence that I have imposed meets the objectives of sentencing. As conceded by Crown counsel, specific deterrence is not a significant concern in the circumstances of this case. General deterrence is more important; however, Mr. Nicholas’ particular circumstances, including his age and his dementia and cognitive impairment, together with the presence of a pandemic in our community, mean that his case is easily distinguished from those of other would-be arsonists. I do not see the leniency of the sentence that I am imposing as a message to others that arson is not a serious offence. It is an extremely serious offence that often results in the loss of life, as well as the loss of property. In the normal course, it will result in a significant term of imprisonment, and that must not be forgotten.

Aitken J.

Released: March 30, 2020 Read to Accused July 17, 2020.