HER MAJESTY THE QUEEN v. Gary White

COURT FILE NO.: CR-19-4583

DATE: 20210412

Delivered orally and in writing

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Gary White

Offender

COUNSEL:

Craig Houle, for the Crown

Patricia Brown, for the Offender

HEARD: Sentencing submissions heard March 29, 2021

REASONS FOR SENTENCE

pomerance j.:

[1] Gary White pleaded guilty to arson with disregard for human life. He and his brother, a young offender, set fire to the house of their neighbours. The residents of the house suffered no physical harm, having escaped the blaze, but the emotional and financial harm they have suffered is significant. They have lost, not only their home and physical possessions, but their sense of safety and security. An offence of this nature would ordinarily call for a significant term of incarceration. However, this case is unique. The offender before the court suffers from debilitating cognitive limitations. His cognitive score rests at the 1st percentile, which means that he operates at a level lower than 99 percent of the population. Given his cognitive and emotional difficulties, his level of moral blameworthiness is much reduced.

[2] This is, therefore, a challenging sentencing decision. The sentence must reflect both the gravity of the offence and the moral blameworthiness of the offender. These are the twin pillars of proportionality, the overarching objective of the sentencing process. Often, the two factors move in tandem. Where the crime is serious, moral culpability will often be at the higher end of the scale. However, this is not always the case. It is important to examine each pillar independently, in arriving at a proportionate sentence. As it was explained in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 129 and 131:

My colleague states that the principle of proportionality means that the more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be (para. 12). I would qualify this statement somewhat. In my view, an offender’s degree of responsibility does not flow inevitably and solely from the gravity of the offence. The gravity of the offence and the moral blameworthiness of the offender are two separate factors, and the principle of proportionality requires that full consideration be given to each of them: Proulx, at para. 83. As s. 718.1 Cr. C. provides, “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

The application of the proportionality principle may therefore cause the two factors to conflict, particularly where the gravity of the offence points strongly to a sentence at one end of the range while the moral culpability of the offender points in the other direction: R. v. Hamilton (2004), 2004 5549 (ON CA), 72 O.R. (3d) 1 (C.A.), at para. 93, quoted in C. C. Ruby, G. J. Chan and N. R. Hasan, Sentencing (8th ed. 2012), at pp. 26‑27. In short, although it is true that the gravity of the crime is a relevant factor, it must nevertheless be considered in conjunction with the offender’s degree of responsibility, a factor that is unrelated to the gravity of the offence.

[Emphasis in original.]

[3] I will begin by briefly stating the facts. I will, then, turn to the sentencing calculus as it applies in this case.

THE OFFENCE

[4] The offender committed this offence with his brother, a young offender. His brother was the instigator of the event, with this offender following his lead. On April 8, 2018, at about 12:00 a.m., the two attended the driveway of 605 Vimy Avenue, Windsor, Ontario, puncturing the tires of two vehicles parked in the driveway. The two then returned to the address at 2:24 a.m., the young offender carrying a pizza box. Once in the backyard of the house, the young offender placed the pizza box on the wooden deck and ignited the box and its contents – torn up paper, an aerosol can, and a battery.

[5] The offender ignited a recycling bin located in the backyard. The two then ran back home. At the time the two offenders walked over to the house, Mr. White knew that his brother had a pizza box but did not know of its contents. At least initially, he may have tried to talk his brother out of committing the offence.

[6] At 2:31 a.m., two neighbours observed the fire and sprinted over to the house, banging on the windows and doors. One of the neighbours flagged down a Windsor police cruiser and, with the assistance of police, were able to evacuate the two individuals inside the house.

THE OFFENDER

[7] According to Dr. Ross, the offender is severely limited in his understanding and ability to vocalize words. He is at the 1st percentile in comprehension, which means that his skills are lower than 99 percent of the population. He suffers from ADHD. His difficulties are further compounded by his extreme depression, flowing from the death of his mother, and, thereafter, his girlfriend. The impact of these losses was such that he tried to take his life on at least one occasion.

[8] The offender was 21 years old at the time of the incident – while the older of the two offenders, it is apparent that his younger brother was the dominant actor. There is little doubt that the offender was highly suggestible and prone to follow his brother into criminality.

[9] The offender’s sister, Amanda Bester, lives with him and cares for him. For purposes of the pre-sentence report, Ms. Bester described the offender as having difficulty with literacy and estimated his abilities to be approximately that of a six-year-old. She reported the offender consistently expresses a desire to learn to read and write. Ms. Bester stated the offender has a strong work ethic and has an opportunity waiting for him when his legal matters are resolved. She indicated the offender enjoys being engaged in work tasks.

[10] Ms. Baz, the Dual Diagnosis Justice Case Manager – Regional Support Associates, reported that the offender wears a “cloak of competence,” in which he “pretends to understand in order to avoid focus on his disabilities.” She reported the offender has very limited literacy and comprehension; however, he continues to have great potential and desire to engage in employment.

[11] It is apparent that Mr. White did not fully understand the impact that setting the fire would have. This is not to suggest that he is not criminally responsible. He understood the consequences of his actions and knew that they were wrong. It is only to say that he had a limited understanding of the harm and suffering that his actions could bring about. He came to have a better grasp of the situation after he himself lost a pet during a house fire. As it was put in the pre-sentence report:

The Offender stated he accepted responsibility for the matter before the Court. He reported that after the commission of the offence, he lost his cat in a family housefire. The Offender explained that the experience gave him understanding of victim impact and his own actions.

[12] Ms. Bester expressed her belief that the offender was unable to grasp the truly serious impact of a fire until he experienced it first-hand. She stated that when her father had a fire in his home, which resulted in personal loss for the offender, “he definitely understood.” Ms. Bester indicated the offender is remorseful and avoidant of fire at this time.

Analysis

[13] The crime in this case is extremely serious. Fire is an erratic beast. Once set, it will often exceed and/or defy the wishes of its creator. Fire can spread, it can reignite, it can consume property, and it can destroy life. This is so, whether or not these consequences were intended or foreseen. The offence of arson poses a unique danger to persons and property. This case is no exception. It was highly fortuitous that a watchful neighbour spotted the blaze and alerted the occupants of the house in sufficient time to allow them to escape. Were it not for this intervention, the offender would be facing a far more serious offence, perhaps involving loss of life.

[14] While the residents of the house survived the fire, they have experienced tremendous loss. The fire resulted in $150,000 in property damage. The home was destroyed, along with its contents. The most significant losses concern the items that cannot be replaced; those that Ms. Gambriel described as “everything we made, held close to our hearts, carried with us for years” to keep stories and memories alive. The financial toll, while significant, pales in comparison to the emotional impact of these events, as poignantly described in the victim impact statements. Marco Rose wrote: “Emotional impact has been immeasurable. On April 3rd we lost our sense of security, our sense of safety and a sense of hope.” Anne Gambriel set out a moving description of how this has impacted upon her and her family, though she closed her statement with an assertion of strength and grace, saying that she and her family are strong and will fight the darkness.

[15] The impact on the homeowners is not surprising. Home is a place where we should all feel safe. Not only was this sense of safety shattered, but the home itself was physically destroyed. In the normal course, deterrence and denunciation would be the paramount factors in sentencing a crime of this nature.

[16] I will now turn to the countervailing factors, relating to the circumstances of the offender.

[17] Mr. White has confronted several challenges in his young life. His cognitive limitations render his functioning to the level of a six-year-old child, with a comprehension score at just the 1st percentile. With this come a host of difficulties, including learning disabilities, difficulty interacting with others, and extreme vulnerability. His ability to cope with life was further reduced by the loss of his mother and then his girlfriend. His grief caused him to plummet into a cycle of depression.

[18] Various courts have considered the impact of cognitive deficits and mental health issues on the sentencing process. In R. v. J.E.D., 2018 MBCA 123, 368 C.C.C. (3d) 212, the court stated at paras. 72-73:

When evaluating whether an offender’s moral blameworthiness was affected by his or her mental illness or other form of cognitive limitation, guidance in making this evaluation may also be sought by considering the following passage from R v Ramsay, 2012 ABCA 257 as follows (at paras 24-25):

Where the cognitive deficits experienced by the offender significantly undermine the capacity to restrain urges and impulses, to appreciate that his acts were morally wrong, and to comprehend the causal link between the punishment imposed by the court and the crime for which he has been convicted, the imperative for both general deterrence and denunciation will be greatly mitigated (Quash [R v Quash, 2009 YKTC 54] at para 71; Harper [R v Harper, 2009 YKTC 18] at para 47).

The degree of moral blameworthiness must therefore be commensurate with the magnitude of the cognitive deficits attributable to FASD. The more acute these are shown to be, the greater their importance as mitigating factors and the less weight is to be accorded to deterrence and denunciation, all of which will serve to “push the sentence ... down the scale of appropriate sentences for similar offences”.

[emphasis added]

Three areas of guidance can be gleaned from the above passage. First, in determining whether a mental disorder affects the moral culpability of an offender, a court should consider whether the evidence indicates that the offender’s cognitive defects undermine the offender’s capacity: (1) to restrain urges and impulses; (2) to appreciate that his or her acts were morally wrong; and (3) to comprehend the link between the punishment imposed by the court and the crime for which he or she has been convicted. The mental illness does not have to have caused the offender to commit the crime. It is sufficient that the mental illness contributed to the commission of the offence. Second, the magnitude of the cognitive deficits must be considered so that the degree of moral blameworthiness can be commensurate with the magnitude of those deficits. Third, public safety issues will always have to be taken into account as well. [Emphasis in original.]

[19] As was held in that case, an offender’s mental disability can be a significant mitigating factor and relevant to sentencing principles and objectives. When sentencing individuals with cognitive limitations, deterrence and punishment assume less importance.

[20] In R. v. N.M.G., 2020 ONCJ 146, Green J. observed that the reduction of sentence for cognitive limitations is a fact specific, case by case determination. He went on, at para. 33, to observe that:

Ascertaining the moral blameworthiness of an offender with a mental illness or some other form of cognitive limitation is a tactful and considerate exercise. Sentencing judges must avoid committing one of two obvious errors in principle. The first is being indifferent to the question of whether an offender's mental circumstances affected his or her degree of responsibility. The other error in principle is the reverse situation, namely, assuming an offender's moral blameworthiness for an offence is reduced automatically because he or she has a mental illness or other cognitive limitation. It is suggested that, when sentencing offenders with a mental illness or some other form of cognitive limitation, such as a form of FASD, sentencing judges keep separate and properly assess the following questions:

1. Is there cogent evidence that the offender suffers from a recognized mental illness or some other cognitive limitation?

2. Is there evidence as to the nature and severity of the offender's mental circumstances such that an informed decision can be made as to the relationship, if any, between those circumstances and the criminal conduct?

3. Assuming the record is adequate, the sentencing judge must decide the offender's degree of responsibility for the offence taking into account whether and, if so, to what degree his or her mental illness or cognitive limitation played a role in the criminal conduct.

[21] Finally, the Court of Appeal for Ontario has also endorsed the potential for reduction of sentence on this basis. In R. v. Ghadghoni, 2020 ONCA 24, at para. 45 , the court affirmed that:

Cognitive impairment, where it affects behaviour resulting in criminal liability, “can attenuate the moral blameworthiness attached to that behaviour. It can also justify less emphasis on the principles of specific and general deterrence”: R. v. Manitowabi, 2014 ONCA 301, 318 O.A.C. 175, at para. 64.

[22] I am satisfied that this is a case in which there is a direct link between the offender’s cognitive limitations and his involvement in the crime. His suggestibility, together with his limited comprehension of the outcome, combine to reduce the moral blameworthiness of his actions. This is not to minimize the gravity of the offence. As noted above, moral blameworthiness is a factor independent of the seriousness of the crime. It is to say that the offender’s participation in the crime was, at least in part, the product of his personal circumstances and his limited capacity to exercise independent, rational and long-range judgment.

[23] Mr. Houle, for the Crown, has fairly recognized that in light of this unique feature, it is appropriate to impose a much lower sentence than would usually be required. The Crown, while properly highlighting the aggravating features of the crime, acknowledges that a sentence of two years or less could be imposed. This opens up the possibility of a conditional sentence, an option resurrected in the case of R. v. Sharma, 2020 ONCA 478, 390 C.C.C. (3d) 1. In Sharma, the Court of Appeal for Ontario struck down s. 742.1(c) which barred a conditional sentence for offences prosecuted by indictment and for which the maximum term of imprisonment is 14 years or life. That is the provision that would normally apply in this case. With the declaration that it is unconstitutional, there is no longer a statutory bar to the availability of a conditional sentence for Mr. White.

[24] Is a conditional sentence otherwise appropriate? Would it adequately address the purposes and principles of sentencing? Would a community-based sentence be consistent with the safety of the community? I find these requirements are satisfied in the circumstances of this case. Just as Mr. White was suggestible when it came to the offence, he is amenable to supervision and counselling. It is agreed by both Crown and defence that he stands to benefit from the terms that would be imposed as part of a conditional sentence and those that would be imposed as part of a subsequent probation order. He will be able to engage in some limited employment with a landscaping company, which will assist him in developing skills and in feeling that he is a productive member of the community. Further assistance will be available in the form of an adult protection worker, for which he is currently eligible.

[25] The courts have long recognized that, in appropriate cases, a conditional sentence can adequately address the goals of deterrence and denunciation: see R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61. It can allow for punitive sanction, while furthering the goal of treatment and rehabilitation. Finally, it can avoid the highly negative impact of imprisonment on persons who are particularly vulnerable to abuse.

[26] Mr. White’s vulnerability can, and indeed has, led to his victimization. On at least one prior occasion, he was set upon by others in the jail and assaulted. His difficulties may make him an easy target for those intent on exercising dominance and aggression in the custodial context. A conditional sentence will protect him from a recurrence of what must have been a terrifying experience.

[27] I accept that Mr. White is extremely remorseful for his actions. This was the perception of the probation officer who wrote the pre-sentence report. It is the perception of the offender’s sister, who cares for him. It is my perception of the offender and the comments that he made to the court. His plea of guilt is a formal sign of remorse and responsibility. I believe that it reflects a genuine sense of regret over the pain he has caused to the victims.

[28] No sentence I impose today can restore the victims to the place they occupied before this crime. I cannot return this family to the physical home that they once occupied, and I cannot return them to the psychological sense of home that they once enjoyed. Nor can Mr. White offer any meaningful restitution for financial loss. However, the sentence that I will impose is one that balances the competing principles at play in this case. The combination of house arrest, followed by probationary supervision, for a total period of five years is far more likely to prevent future crimes than would placing Mr. White in a jail cell.

[29] Finally, there is the issue of parity in sentencing. Like offenders who commit like crimes should receive similar penalties. The young offender who acted as an accomplice and, it would seem, the instigator of the crime received a sentence of 240 days closed custody less pre-sentence custody. This amounted to a sentence of 114 days closed custody, followed by two years’ probation. Of course, this sentence was imposed under an entirely different statutory scheme, that of the Youth Criminal Justice Act, S.C. 2002, c. 1, which approaches sentencing very differently than does the Criminal Code, R.S.C. 1985, c. C-46. Be that as it may, the sentence imposed on the young person is a rough yardstick by which to assess penalty. It is a further indication that a sentence of two years or less is appropriate in this case.

[30] Counsel for Mr. White asked that I explain my decision to Mr. White in simple language, so that he can understand it. I will try to do that now.

[31] Mr. White, you committed a serious crime when you helped your brother set the fire at your neighbour’s house. The house burned down. The people who lived in the house lost everything. When you are at home, you feel safe. It is a place where you can escape from the world. They no longer feel safe. They feel like they could be hurt again. They were very lucky that someone woke them up during the fire. Otherwise they could have been hurt very badly.

[32] You know what it felt like to lose your cat in a fire. Imagine what it would be like to lose everything that matters to you. I think that you know all of this. I think that you know how much the fire hurt the victims. I think that you know that you must never do something like this again.

[33] I also think that when you helped set the fire, you were doing what you thought your brother wanted you to do. I think that sometimes you do not entirely understand what is happening. Some people think that you pretend to understand when you do not. It is alright to say you do not understand. It is alright to say that you do not want to do something. It is very important that you say that when someone wants you to do something bad.

[34] Some judges would put you in jail for what you did. I am not going to do that, because I think that you should have a chance to get better, so that this never happens again. I am going to make you stay at home for a while. We are going to arrange for you to get some help. I know you are sad about losing your mother and your girlfriend. We want you to get some help for that sadness. And we want to help you understand things better. You are going to have a person supervising you who will help you do these things.

[35] I am now going to tell you what the sentence is. It is very important that you follow all the rules. If you break any of these rules, you will be in trouble and have to come back to the court. I do not think you want to do that.

[36] As part of the sentence, you will have to pay some money to the victims each month for two years. This is a way for you to say you are sorry, by paying something back.

[37] For all of these reasons, I impose a sentence of imprisonment to be served in the community for a period of two years with the following terms and conditions:

For the first 12 months

1. For the first 12 months, remain within your residence daily except in the following circumstances: a) Attendance for work-related or education-related matters and travel directly related to such matters; b) Medical/dental appointments; c) Meetings with the Conditional Sentence Order Supervisor or treatment/counselling sessions as directed by the supervisor; d) On Saturdays between 10:00 a.m. and 2:00 p.m. to shop for necessities of life; and e) In relation to any other matter as may be pre-approved in writing by the Conditional Sentence Order Supervisor.

2. Carry conditional sentence order with you whenever you are outside of the residence.

3. For the last 12 months obey a curfew between 10:00 p.m. and 6:00 a.m.

4. For each of 24 months pay 15 dollars per month to the Conditional Sentence Order Supervisor to be forwarded to Anne Gambriel and Marco Rose.

5. Report in person to a Conditional Sentence Order Supervisor within 48 hours and thereafter as directed by the Supervisor. Cooperate with your Conditional Sentence Order Supervisor. Sign releases necessary to permit the Conditional Sentence Order Supervisor to monitor your compliance, and you must provide proof of compliance with any condition of this Order to your Conditional Sentence Order Supervisor on request.

6. Live at a place approved of by the Conditional Sentence Order Supervisor and not change that address without obtaining the consent of the Conditional Sentence Order Supervisor in advance.

7. Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the Conditional Sentence Order Supervisor and complete them to the satisfaction of the Conditional Sentence Order Supervisor for: • Anger Management; • Grief Counselling; • Criminal Thinking; • Special Needs Supports; and • Other.

8. You shall pay any applicable fees and sign any release of information forms to enable your Conditional Sentence Order Supervisor to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed. You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

9. Make reasonable efforts to seek and maintain suitable work and provide proof of same as required by the Conditional Sentence Order Supervisor.

10. Do not possess or consume any unlawful drugs or substances (refer to the Controlled Drugs and Substances Act, S.C. 1996, c. 19) except with a valid prescription in your name or those available over the counter.

11. Do not possess any incendiary devices except for a single lighter for personal use.

[38] The conditional sentence order is to be followed by three years of probation, on the following conditions:

1. Report in person to a Probation Officer within 48 hours of the expiry of your conditional sentence and thereafter if and as required. Cooperate with your Probation Officer. Sign releases necessary to permit the Probation Officer to monitor your compliance and you must provide proof of compliance with any condition of this Order to your Probation Officer on request.

2. Live at a place approved of by the Probation Officer and not change that address without obtaining the consent of the Probation Officer in advance.

3. Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the Probation Officer and complete them to the satisfaction of the Probation Officer for: • Anger Management; • Grief Counselling; • Criminal Thinking; • Special Needs Supports; and • Other.

4. You shall pay any applicable fees and sign any release of information forms to enable your Probation Officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed. You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

5. Make reasonable efforts to seek and maintain suitable work and provide proof of same as required by the Probation Officer.

6. Do not possess or consume any unlawful drugs or substances (refer to the Controlled Drugs and Substances Act) except with a valid prescription in your name or those available over the counter.

7. Do not possess any incendiary devices except for a single lighter for personal use.

[39] The ancillary orders are as follows:

1. Section 109 weapons prohibition for 10 years.

2. DNA order pursuant to s. 487.051 of the Criminal Code.

[40] I thank both Crown and defence counsel for their assistance in this matter.

Original signed by Justice Renee M. Pomerance

Renee M. Pomerance

Justice

Released orally and in writing: April 12, 2021

COURT FILE NO.: CR-19-4583

DATE: 20210412

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Gary White

REASONS FOR sentence

Pomerance J.

Released: Orally and in writing – April 12, 2021