Court File and Parties

Court File No.: CR-22-50000032-0000 Date: 2022-05-18 Superior Court of Justice – Ontario

Re: R v. Jordan thompson

Before: S.F. Dunphy J.

Counsel: Mr. Michael Wilson, for the Crown Ms. Angela Lepsa, for the Defence

Heard at Toronto: May 11, 2022

REASONS FOR DECISION - SENTENCE

[1] Jordan Thompson was found guilty of one count of arson and acquitted on one count of obstructing justice by a jury on April 26, 2022. I have reviewed the written submissions of the parties on sentencing and heard their oral submissions. This is my decision on sentencing.

Circumstances of the offences

[2] The charge arises out of an incident that occurred on November 4, 2019.

[3] Shortly after 9 pm that evening, Mr. Thompson was captured on a security camera entering a convenience store attached to a gas station in the Dufferin and Lawrence area. Moments earlier, he had arrived as a passenger in a vehicle that parked in shadow at the side of the station. There were two other men in the vehicle whose identities remain unknown. Mr. Thompson purchased a gas can and approximately five litres of gasoline. His face and distinctive clothing were clearly captured on camera and he made no effort to disguise his identity if indeed he was conscious of being filmed at all. He returned to the vehicle which then left the gas station and drove directly to a nearby light industrial street running off of Caledonia Road.

[4] The car parked just beside a driveway that leads to the back parking lot of one of the light industrial buildings on the street. The other passenger in the car got out from the back seat and began to walk down the driveway towards the rear parking area of the property. A moment later, Mr. Thompson exited the front passenger seat and followed the other man. Mr. Thompson carried in his arm the gas can filled with the five litres of gas that he had just purchased. The gas can was covered by an article of clothing draped over it. The driver of what was to be the getaway car remained where he was and waited.

[5] A few minutes later, a late-model Ford F-150 pickup truck exited the parking area of the property, down the driveway to the street. It was driven by the first man with Mr. Thompson – a non-driver- in the passenger seat. As they drove by the parked vehicle, the driver of that vehicle pulled out and followed them.

[6] Subsequent examination of security camera footage in that area revealed that the same Ford F-150 had arrived and parked in the lot behind the building about eight hours earlier that day, its occupants leaving the area on foot. The area had only light pedestrian and vehicle traffic at mid-day when security cameras recorded its arrival. It was even more lightly travelled and deserted after 9 pm in the early hours of darkness on an early November evening when it was driven away by the unknown man with Mr. Thompson in the passenger seat.

[7] The two vehicles drove in convoy fashion directly to an apartment complex on Neptune Drive. Their progress was painstakingly reassembled by police using video feed obtained from a number of security cameras located on various residential, commercial and industrial properties along the route they followed. The apartment complex in question has a driveway from the street leading to a circular driveway at the back where deliveries to the complex can be made or passengers dropped off or picked up. In the middle of the circular driveway is a small parking area while at one edge is an area fenced off with wooden fencing containing a number of dumpsters and garbage containers.

[8] The pickup truck entered the circular driveway area while the following vehicle proceeded past the driveway and parked on the street a few yards beyond the entrance. Once again, the vehicle and its unknown driver simply waited. The pickup truck parked beside the wooden fence containing the garbage dumpsters and only a few feet from some parked cars on the other side of the narrow exit lane from the circular driveway.

[9] Mr. Thompson and the other man remained inside the pickup truck for a couple of minutes. One, the other or both of them were spreading gasoline from the gas can over the interior of the pickup truck. Mr. Thompson and then the other man exited the vehicle. Mr. Thompson was captured on a security camera at the complex putting the strap of a small duffel bag that had been in the back of the pickup truck over his head. The duffel bag contained the gas can purchased earlier that evening minus the approximately three litres of gasoline that had been spilled and scattered around the interior of the vehicle moments earlier. A few seconds later there was a loud explosion. Both men were at about arm’s length from the pickup truck when the explosion occurred. One of the two men had used a lighter to ignite the fire which, given the amount of gasoline vapour present in a partially enclosed space, went off very much as a bomb might. By luck, neither of the two men were hurt by the explosion.

[10] Mr. Thompson said that he did not light the fire. It appears from the video evidence and the subsequent Fire Marshal’s investigation that he may be correct. However, nothing can be said with confidence on the subject of which of the two men set the blaze. At all events, the fire was set and it was set deliberately.

[11] Whether Mr. Thompson set it himself or aided the unknown man to do so is a distinction without a difference. The jury convicted him of arson and therefore did not accept his evidence denying any advance knowledge of what was to happen or any intentional aiding on his part.

[12] The speed and force of the explosion clearly took both men by surprise. The unknown man immediately ran back the way he had come and towards the parked getaway car. Mr. Thompson’s hat had been blown off by the explosion. He instinctively threw down the canvas bag that was strapped over his shoulder. The bag contained the gas can that, it will be recalled, still had about two litres of gas remaining in it. Being only a few feet away from the explosion when it occurred, Mr. Thompson felt the blast and, given its intensity, can be forgiven for having supposed the he himself was on fire. Shedding the duffel bag and gas can made perfect sense in that context.

[13] After shedding the duffel bag, Mr. Thompson ran at top speed towards the getaway car as well, overtaking the other man in a few strides. The getaway car immediately drove away and deposited Mr. Thompson at a nearby community centre where he met some friends to hang out with after hours.

[14] The duffel bag containing the gas can remained at the scene. The gas can had a sticker on it identifying where it was purchased which eventually led police to Mr. Thompson’s door and his arrest a few months later.

[15] As might be expected, an explosion of this nature in a dense apartment complex did not go unnoticed. The explosion set off car alarms all around. Emergency call operators were flooded with approximately fifty 911 calls and police and fire soon arrived.

[16] The fire was doused before it was able to spread to any other vehicles or to the fence beside which the pickup truck had been parked. A passerby recorded the fire with her cell phone camera moments after Mr. Thompson and the man had fled the scene. Flames could be seen shooting high into the air and secondary explosions were heard from time to time that were sufficiently loud and terrifying to unnerve the observer filming the scene from what she thought was a safe distance.

[17] The damage to the pickup truck was total. The doors had been blown off in the explosion, the engine block was largely melted down and the interior completely burned out. Little remained but four damaged wheels and the outline of a frame.

[18] The F-150 pickup truck – which had been reported stolen a few weeks earlier – was entirely destroyed. It was only about a year on the road. From the photographs and Mr. Thompson’s own description, the vehicle was clearly a luxury edition, high-end pickup truck. Precise valuation evidence has not been presented but from general knowledge I have no difficulty in accepting the Crown’s conservative estimate of its value at more than $40,000 derived from on-line listings.

[19] The jury acquitted Mr. Thompson on the charge of obstruction of justice but convicted him on the charge of arson. I must infer from these two verdicts that the Crown has not proved beyond a reasonable doubt that Mr. Thompson was aware that the truck had been involved in a crime or that burning the vehicle was intended to destroy evidence relating to the investigation of the crime.

Circumstances of the offender

[20] Mr. Thompson was eighteen years of age at the time of the offence. He will celebrate his 21st birthday in a few weeks’ time. He has not found regular employment since leaving school after Grade 9 but has had some employment experience working in construction and in a grocery store. He lives with his mother, two brothers and a sister. When not doing odd jobs he volunteers in his community. He has no prior criminal record.

[21] At the hearing, additional details regarding Mr. Thompson and his personal situation emerged. His early departure from school was due in part to ADHD and his own perception that he could not sit still in class. He does want to return to school to finish high school but thus far has not taken concrete steps to do so. He is currently scheduled to interview for a summer job with Toronto Community Housing and outreach workers there have written glowing recommendation letters that I shall refer to in a moment.

[22] Mr. Thompson was born and raised in the Lawrence Heights area of Toronto. This is an economically challenged area with a significant incidence of violent crime. He has not been left unscarred by the experience of growing up in that area. He has personally been a victim of violence in the past. In addition, two friends of his were killed in separate gun violence incidents this past year. Such a description I am sure does but little justice in describing the adverse circumstances at play in the development of a young man whose life until now must feel like he always starts with two strikes against him.

[23] Turning to the support letters, there are two from Toronto Community Housing workers. Ms. Solorzano is a Supervisor of Revitalizatoin and Renewal Communities at TCH. She has known Mr. Thompson from the age of eight or ten years. She praised Mr. Thompson’s “meaningful support to Lawrence Heights residents”, his “strong relationships in the community” and his “natural ability to connect with people from all backgrounds”. Mr. Mejicano is a Community Services Coordinator for the Violence Reduction Program at TCH. He is currently engaged in supporting Mr. Thompson’s quest for employment. He too has known Mr. Thompson for several years and views him as someone who “has been active participating in local community initiatives” and with a “genuine desire to turn his life around”.

[24] Mr. Mejicano referred Mr. Thompson to the Delta Family Resource Centre, a non-profit community organization. Although Mr. Thompson only approached Delta about two weeks ago, he impressed Delta’s Ms. Magagula as someone with self-awareness and emotional intelligence. Mr. Thompson is participating in Delta’s Mmere Dane Youth Justice program and Delta is currently supporting his efforts to graduate from high school and seek employment. These are two milestones that, if achieved by Mr. Thompson, could turn his life on to an entirely different path than the one he has allowed himself to fall into. I see Delta, or programs similar to the ones Delta offers, as having the potential to make an incredibly positive change in Mr. Thompson’s life that he sorely needs. I also see his life as being at a turning point where such a change would do a world of good for him.

[25] Mr. Ghebremicael of the FuntoMental Academy has known and worked with Mr. Thompson for a considerably longer period of time – ten years. He spoke highly of Mr. Thompson’s perseverance and responsibility. He described Mr. Thompson as a role model in the community and outlined many of Mr. Thompson’s volunteer efforts. He was confident in the strength of the support system in place for Mr. Thompson and of his potential to redeem himself and become a productive member of society.

[26] Ms. Williams Smith is a long-time friend of Mr. Thompson’s younger sister and through this connection has known him for several years. Mr. Thompson helped her in launching her business for which he received a small stipend which he spontaneously told her would be put towards supplying groceries for the family or buying clothes for his younger siblings. She vouched strongly for his character.

[27] Mr. Thompson’s mother also wrote a support letter stressing his positive contributions to the household, especially since her back injury.

[28] Finally, Mr. Thompson’s girlfriend Ms. Laidley wrote a letter extolling Mr. Thompson’s loving, upright and caring character as someone who “doesn’t deserve this”.

[29] There can be no question that Mr. Thompson has available to him a strong pro-social network of family and community support that is of course a critical factor in assessing rehabilitation prospects. “Pro-social” is one of those technical words that somewhat obscures its rather simple meaning. It means nothing more than helping to build a better community rather than participating in tearing it apart as crime and violence do.

[30] While I have no hesitation in finding that Mr. Thompson can depend on this network in pursuing rehabilitation efforts, that observation must be tempered by the fact that his support network appears to have had little success in deterring him from choosing to become involved in committing such a serious crime in the first place. As well, two of the surest steps that might be taken towards his rehabilitation – completion of his high school education and building a positive record of regular employment – remain quite firmly in the “to do in the future” list for Mr. Thompson. Any assessment of his rehabilitation prospects must also bear that reality in mind. The needed tools are available for him to use, he has yet to show the grit to pick them up, do some hard work and use them.

[31] I am thus guardedly optimistic about Mr. Thompson’s prospects for successful rehabilitation. He took advantage of the opportunity to address the court at his sentencing hearing and I was impressed by the sincerity of his regret and disappointment in himself arising from this incident.

[32] The remorse and regret of an offender is frequently – and not without justification – ascribed to regret at being caught. I am not naïve enough to exclude this factor in assessing Mr. Thompson’s statement to me. However, he impressed me as a young man who is well aware of the degree to which his family depends on him and who is acutely aware of how he has let himself and them down. These are ingredients from which positive change can emerge. Change, however, requires choice. He must choose to change and take concrete steps to pursue his goals. Failing to choose, alas, is also a choice because it means life will choose for him. In the circumstances in which he finds himself, Mr. Thompson cannot expect random chance to deal him a favourable hand. Discipline and determination are the surest way out and he has yet to show a willingness to dig deep and find them.

[33] I must also observe that for all the planning evident in the execution of this crime, there is nothing in the evidence to suggest that Mr. Thompson’s own role in the crime was that of chief planner or mastermind. His participation in this crime appears to me to be entirely consistent with a relatively impulsive decision to participate in a plan of someone else’s devising without thought of the consequences. His observed involvement in the affair amounted to something under one hour of activity from the time he purchased the gas can until he was let off at the community centre. This last observation does not in any way excuse his actions but it is of some importance in assessing his relative degree of responsibility.

Aggravating and mitigating circumstances

[34] I find the following aggravating circumstances:

a. The planned nature of the offence: this was clearly a meticulously planned offence. There was nothing random about the choice of target or the manner of execution of the offence. There is no evidence that Mr. Thompson was anything like the mastermind of the offence, but he was a willing and integral part of the team that executed the plan.

b. The inherently dangerous location of the arson: The pickup truck was moved from a deserted location to another location to be burned for reasons that cannot be attributed to Mr. Thompson. However, the chosen location was in a crowded and active parking lot of a dense residential housing complex – the danger to other persons and property was self-evident and only narrowly averted. In fact a white minivan passed within only a few feet of the pickup truck only seconds before the explosion and the Van Dyke vehicle was occupied and only a few feet away as well.

c. An accelerant (gasoline) was used: the accelerant magnified very significantly the risks inherent in the operation and ensured the total destruction of the property beyond recovery. In this case, the gasoline exploded in bomb-like fashion. The truck itself had its own reservoir of gasoline that eventually exploded as well. The quantity of gasoline involved further magnified the risks inherent in burning the truck. In the hands of non-experts, the potential for catastrophic loss of life or property arising from the use of such a quantity of accelerant to burn the truck was quite predictably unpredictable.

[35] I find the following mitigating factors must be taken into account:

a. Mr. Thompson’s young age (18 years) at the time of the offence;

b. Mr. Thompson’s lack of a criminal record;

c. Mr. Thompson’s strong family and community support network; and

d. The conditions of Mr. Thompson’s period of pre-trial detention.

[36] With regard to the last point, Mr. Thompson was detained for sixty days following his arrest at Toronto South Detention Centre. The records from Mr. Thompson’s time in detention reveal that he was in segregation for a total of five days. I am advised that this was at Mr. Thompson’s own request due to safety concerns that he had. In addition, he was subjected to four periods of “lockdown” due to staff shortages.

[37] All of the foregoing mitigating circumstances must be taken into consideration in fashioning a fit and proper sentence for Mr. Thompson.

Position of the parties

[38] The Crown seeks a twelve-month sentence less 90 days of pre-sentence custody credit (60 days at 1.5:1) for a net sentence of an additional nine months. In addition, the Crown requests a two-year term of probation subject to fairly standard conditions regarding reporting, staying away from the locations and parties, some community service and participating in recommended programs. The Crown’s position is that the gravity of the offence is indicated by the heavy prescribed maximum penalty: fourteen years. The primary sentencing principles of deterrence and denunciation require that any sentence express in the clearest terms society’s condemnation of this conduct.

[39] The defence requested that Mr. Thompson be sentenced to time served – he has served sixty days in pre-trial custody in trying conditions, part of his time being spent in segregation and also subject to lockdowns. In the alternative, the defence suggested that a conditional sentence should be considered accompanied by a period of probation during which latter period the defence took no objection to the conditions proposed by the Crown.

Application of sentencing principles and sentence

(i) Proportionality and gravity of the offence (s. 718.1 Criminal Code)

[40] This is a crime that is clearly on the severe end of the spectrum and not only because of the fourteen year maximum sentence. While it may have been “just” a property crime, the damage to property was substantial – a very expensive vehicle belonging to an innocent victim was destroyed beyond hope of recovery. Further, the property damage is only a part of the picture. Significant emergency services resources were diverted to deal with this incident. The 911 switchboard was flooded with calls – a foreseeable outcome given the highly public and densely populated location chosen for the fire. Both factors necessarily impacted the response time for other emergencies while this incident was being dealt with. The potential for serious personal injury arising from arson is always present. First responders place themselves in danger and not infrequently suffer injuries as a result of attempting to protect the lives and property of others. The risk of personal injury arising from this incident was particularly high. As noted, the pickup truck literally exploded and the location was in the midst of a dense housing development in a parking lot area that was relatively full and frequently travelled by vehicular and pedestrian traffic. Apart from the two perpetrators of the crime who escaped serious injury by the narrowest of margins, the Van Dyke vehicle was occupied and parked only a few feet away and another white mini-van had passed very closely by the vehicle only seconds before the explosion.

[41] The property damaged was valuable and the damage was total. This was an expensive, late-model luxury edition pickup truck. The $40,000 minimum value ascribed to it by the Crown from on-line information sources is a reasonable if conservative estimate.

[42] An accelerant was used in setting fire to an object – the pickup truck – that contained a further reservoir of accelerant that could (and did) explode. The fire was set in a very public setting creating a significant risk to passersby, nearby cars and to the fence beside which it was set. The lives of first responders were thus placed at additional risk in tackling such a potentially dangerous fire.

[43] Within the spectrum of crimes of arson, this crime definitely tends to the serious end of the spectrum of an already serious crime.

(ii) Degree of responsibility of the offender (s. 718.1 Criminal Code)

[44] My assessment of Mr. Thompson’s degree of responsibility for this offence is a nuanced one.

[45] The jury acquitted Mr. Thompson of the obstruct justice charge. This means that his motive for participation in this crime remains opaque. However, the evidence at trial clearly established this this arson was no accident. It was definitely planned and executed to destroy evidence relating to a crime committed by an occupant of the truck only eight hours previous.

[46] The pickup truck was used as the getaway car following a very serious shooting incident. It proceeded from the scene of that crime to the relatively deserted location in the industrial area off of Caledonia Rd. described earlier. Eight hours later three men in a vehicle, one of whom was Mr. Thompson, drove to a gas station to buy gas and a gas can and then drove directly to the isolated location where the pickup truck was parked. One of the men drove the truck to a third location – once again directly – with Mr. Thompson as a passenger and then minutes later the truck exploded in flames.

[47] There can be no doubt that obstruction of justice was in fact the reason why this crime occurred. The acquittal verdict means that the jury was not satisfied that Mr. Thompson was aware of enough information to share that motive. This leads logically to my conclusion that I must consider that he played a subordinate role in the crime in the sense of being a “follower” and not a “leader”. Someone else planned the crime, Mr. Thompson played his assigned role while kept in the dark about the why’s and wherefor’s to some degree at least.

[48] It is in this limited sense that I find that his responsibility was attenuated. Nevertheless, the fact remains that Mr. Thompson voluntarily participated in this crime even if it was planned by others.

(iii) Dominant principles: denunciation, deterrence and parity principle (s. 718(a) and (b) and s. 718.2(b) Criminal Code)

[49] Our courts have clearly and repeatedly emphasized that that denunciation and deterrence – both specific and general - are the paramount sentencing principles to be applied in cases such as this. This was a serious crime. Other would-be offenders need to know that society’s denunciation of this conduct will be serious and severe. As King J. succinctly summarized in R. v. O’Hanley, 2020 ONSC 1310 (at paras. 51-53):

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

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.

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.

[50] Absent the mitigating circumstances present in O’Hanley, King J. found that a sentence of three years or more may well have been appropriate. In the result, a youthful first-time offender with a strong pro-social family network who was making a serious effort at attacking his addiction issues and had a steady job received a fifteen-month sentence for setting fire to a house rented by his romantic partner. The circumstances here are of course not identical, but there are strong parallels in O’Hanley to the present case in terms of the gravity of the offence and the characteristics of the offender.

[51] The Crown seeks a nine-month sentence after allowing for pre-sentence custody. The Crown’s recommended sentence gives Mr. Thompson very significant credit for his youth, his clean record and the rehabilitation prospects indicated by his strong pro-social family and community network. The parity principle strongly suggests that the Crown’s sentence is well within – and indeed near the low end – of the range of sentences commonly handed down in similar situations.

(iv) Assist in rehabilitating offenders and least restrictive appropriate sentence (s. 718(d) and s. 718.2 (d) and (e) Criminal Code)

[52] As I mentioned at the close of the sentencing hearing, this case presents me with two very different and difficult alternatives. Were I to find that a further period of incarceration over and above the sixty days Mr. Thompson has already served in pre-sentence custody is appropriate, the foregoing analysis very strongly points me towards handing down a sentence along the lines of what the Crown has proposed. It is a considered and balanced proposal.

[53] The defence urged me to consider a conditional sentence in the case of Mr. Thompson, citing his youth, his rehabilitation prospects, his lack of prior record, his clean record while awaiting trial and his attenuated degree of responsibility for this crime.

[54] In my view, I am required to give the defence suggestion very serious and careful consideration. Section 718.2(e) of the Criminal Code requires me to consider “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community”. A conditional sentence under s. 742.1 is an available sanction notwithstanding s. 742.1(c): R. v. Sharma, 2020 ONCA 478.

[55] Mr. Thompson’s youth and clear record also require me to give serious consideration to non-custodial sanctions. As Rosenberg J.A. noted in R. v. Priest, 1996 1381 (ON CA), “[t]he duty to explore other dispositions for a first offender before imposing a custodial sentence is not an empty formalism which can be avoided merely by invoking the objective of general deterrence. It should be clear … why the circumstances of this particular case require that this first offender must receive a sentence of imprisonment.

[56] I am satisfied that I can order a conditional sentence. The difficult question is whether this is a case where I ought to do so.

[57] Unfortunately, the case against doing so in this case is fairly clear-cut while the case for a conditional sentence relies more upon hope than articulable reasons. As inclined as I might personally be to “take a risk” with Mr. Thompson, and I have spent the greater part of a week going back and forth on that very question, the wide discretion granted to me as a sentencing judge must be exercised within the boundaries set by the applicable legal principles – including binding precedent – that govern its exercise. Exceptions, where they are found to exist, must be grounded on identifiable facts and principles and not whim.

[58] The Court of Appeal has consistently ruled that “conditional sentences are not appropriate for serious arson offences”: R. v. Fox, 2002 41943 (ON CA), R. v. Hirnschall, 2003 46450 (ON CA), R. v. Bos, 2016 ONCA 443 and R. v. Mirzakhalili, 2009 ONCA 905. This case is undoubtedly a serious arson offence for the reasons I have expressed. Mirzakhalili (at para. 9) reminds us of the ever-present risk to first responders in responding to fires, a consideration made all the more pressing given the explosive nature of this fire. Given the guarded outlook I expressed for rehabilitation in this case, I cannot state with confidence that Mr. Thompson presents with little risk to re-offend unlike the offender in Hirnschall, for example.

[59] I cannot pronounce what the Court of Appeal has repeatedly characterized as a “demonstrably unfit” sentence based on hope alone. Solid reasons would be required to demonstrate the existence of exceptional circumstances and, unfortunately, an objective assessment of Mr. Thompson’s rehabilitation prospects leads me to conclude that he has shown more in the way of promise than progress to date.

[60] The nature of this crime clearly calls for a custodial sentence. Mr. Thompson’s youth, his first-time offender status, his remorse and his somewhat attenuated degree of personal responsibility all argue for considerable leniency in sentencing. In addition to these factors, my faith in his prospects and the sincerity of his desire to put his life on a more constructive footing push me towards a sentence that is somewhat below the already lenient sentence proposed by the Crown. I can indulge my personal assessment of his character and potential that far and I shall do so. I do not take the view that the factor of specific deterrence, considered alone, requires much if anything in the way of further incarceration given the very deep impact that the sixty days already experienced by Mr. Thompson have had upon him.

[61] I find that a further period of incarceration of seven months (ten months less three months of pre-sentence custody) appropriately balances society’s need for denunciation and general deterrence, accounts for the mitigating factors present here while also ensuring that Mr. Thompson accepts and internalizes an appropriate level of responsibility for his actions. All of these legitimate and paramount interests would be unduly subordinated were I to accept the defence request for a conditional sentence in this case.

[62] A limited period of detention will provide Mr. Thompson with access to programming that will afford him at least a start in completing his high school diploma. A longer period of supervision while under probation will provide an opportunity for a structured re-insertion into society with appropriate guidance on employment placement, vocational training and/or educational opportunities. The Delta program or something similar would appear ideally suited to Mr. Thompson and probation offers the prospect of a back-stop for Mr. Thompson’s on-again, off-again determination. A two-year period of probation will provide enough time and runway to permit significant progress to be made while adding an appropriate additional degree of sanction to the sentence that balances somewhat the relative lightness of the custodial term ordered.

[63] The ancillary order sought by the Crown – an order for the taking of a sample of bodily substances for DNA analysis - appears fair and reasonable to me.

[64] Arson is a secondary designated offence and as such an order under s. 487.051 is something the court may but is not required to make where, as here, the prosecution applies for it providing I am satisfied that it is in the best interests of the administration of justice to do so having regard to the criteria therein provided.

[65] Considering in particular the time and effort required for investigators to unravel Mr. Thompson’s identity and participation in this offence and the gravity of this offence along the spectrum of arson offences, I am so satisfied. The impact upon Mr. Thompson’s privacy and security of his person is not negligeable but I consider that these factors must bend to the collective interest in identifying Mr. Thompson with less effort than was necessitated on this occasion should Mr. Thompson make poor choices in the future.

[66] My optimism in Mr. Thompson’s prospects is not diminished by my conclusion that a conditional sentence is simply too big a reach in this case. There are consequences to be faced for his actions, however ill-considered and impulsive they may have been. Part of maturing is recognizing that fact. However, he shall soon be finished with the short term of incarceration I am ordering. It is then that the real work for Mr. Thompson begins. He has been at loose ends for much of the past few years by all accounts. There is a path forward to a better future and it is not one that will find him by accident but requires hard work and dedication on his part.

[67] Mr. Thompson, please rise now while I pronounce your sentence.

Disposition

[68] Accordingly, I pronounce the following sentence:

a. Mr. Thompson shall be sentenced to a term of imprisonment of ten months LESS three months of pre-sentence custody credit for a net total of SEVEN MONTHS custody;

b. The foregoing custodial term is net of all mitigating factors including Downes considerations;

c. Mr. Thompson shall be further sentenced to a period of probation of TWO YEARS subject to the following terms:

i. Report to probation within 2 business days of your release from custody and thereafter as directed.

ii. Reside at an address approved of by your probation officer and do not change that address without the prior approval of your probation officer.

iii. Do not attend within 200 metres of 135, 145 and 155 Neptune Drive.

iv. Do not have any contact directly or indirectly by any physical, electronic or other means with Saaid MOHIADIN, except through his legal counsel for the purpose of preparing a defence.

v. Do not have any contact directly or indirectly by any physical, electronic or other means with Shannon MAHON.

vi. Attend at, actively participate in, and complete any counseling, rehabilitation, educational or vocational training program as directed by your probation officer.

vii. Sign any releases required by your probation officer to monitor your progress in any counseling or treatment program; and

viii. Complete 100 hours of community service at a rate to be determined by your probation officer.

d. Mr. Thompson shall be subject to an order for the taking of bodily substances for DNA analysis pursuant to s. 487.051 of the Criminal Code.

[69] Mr. Thompson, I have tried to fashion for you as lenient a sentence as I believe that the law and the circumstances of this case allow me to do. I know you will be disappointed in it nevertheless. Please understand that I have listened to you and believe in the sincerity of your remorse. I hope that you will not disappoint yourself or your family and loved ones again. Your future is not your past unless you do nothing to change its course. I believe you have the capacity to make the right choices and the people – family, friends and community supports – to help you stick to it.

[70] At the end of the day, it will be up to you to prove to yourself that you have the discipline to do what it takes to get there. Probation will put some structures around you to help prod you in the right directions but you know what they say: you can lead a horse to water but you can’t make it drink. Progress in probation will only happen if you want it to. I wish you the best of luck in future and I know you have many people who will be pulling for you.

[71] Finally, do remember that these reasons are recorded for a reason. Should you be convicted of another offence in future, you should expect a future prosecutor will ensure that the judge in that case is fully aware of all of the leniency shown to you by me and that will most certainly be taken into account the next time should there be a next time.

S.F. Dunphy J.

Date: May 18, 2022