COURT FILE NO.: 22-8032
DATE: 2022/09/29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
STEVEN HANSSEN
Julian Daller, for the Crown
Self-represented Michael Davies, as Amicus Curiae
HEARD: September 23 and 26, 2022
REASONS FOR Sentence
Roger J.
[1] Mr. Hanssen has pleaded guilty to arson, contrary to s. 434 of the Criminal Code, and to fail to comply with a probation order by having incendiary materials, contrary to s. 733.1 of the Criminal Code. Arson provides for a possible term of imprisonment not exceeding 14 years and failing to comply with a probation order provides for a possible term of imprisonment not exceeding four years.
Facts
[2] On July 31, 2019, Mr. Hanssen was released on a two-year probation order, which includes a condition that he not possess any incendiary materials. On January 26, 2022, Mr. Hanssen was released on another probation order, which includes a condition that he not possess any incendiary materials. At about the time of his release in January 2022, the Freedom Convoy (“Convoy”) protest came to Ottawa.
[3] Mr. Hanssen has a history of substance induced psychotic disorder (cannabis), severe cannabis use disorder, autism spectrum disorder, and Asperger's disorder (possibly subsumed in the autism spectrum disorder). After his release in January 2022, he became fearful of the Convoy and sought help.
[4] He attended at the Ottawa police station, seeking help. He also attended at The Ottawa Hospital, Civic Campus, seeking help. He was eventually discharged to The Mission by way of Salvation Army transport. His fears of the Convoy persisted, and he contacted the Ottawa police again, seeking help. He tried to leave Ottawa by train but was refused boarding because he was not vaccinated.
[5] He eventually called 911 and was transported to the Queensway Carleton Hospital by ambulance. During sentencing submissions, Mr. Hanssen explained quite eloquently that he then believed that he would be safer in jail. He said that in his view, he “did the smallest thing possible in order to get help”.
[6] On February 4, 2022, he set fire to a garbage can in the emergency lobby bathroom of the Queensway Carleton Hospital, and, in his words, “safely” carried the garbage can outside, to minimize risks. The plastic garbage can was observed outside, burnt at the bottom. Mr. Hanssen was promptly arrested, and six lighters were found in his possession. He has been detained at the Ottawa Carleton Detention Centre since his arrest on February 4, 2022.
[7] A pre-sentence report was not ordered. Two earlier psychiatric reports dated May 27, 2019, and December 14, 2021, found that Mr. Hanssen was not eligible for a defense of not criminally responsible due to mental disorder, because his psychotic symptoms originate from self-induced intoxication with marijuana. As a result, one was not ordered during this sentencing process.
[8] Mr. Hanssen is 32 years old. He suffers mental health issues as outlined above. He also has issues with marijuana consumption, which seems to aggravate his mental disorder and psychosis.
[9] During his incarceration, he received psychiatric treatment from a doctor of the Royal Ottawa Hospital. Mr. Hanssen expressed satisfaction with these services and with the medication provided. He also expressed his willingness to continue such treatments. Indeed, at the time of sentencing submissions, Mr. Hanssen appeared calm and made logical and convincing submissions.
[10] Mr. Hanssen has a criminal record, probably resulting from his mental health issues. In 2019, he was convicted of arson with disregard for human life under s. 433 of the Criminal Code, and with failing to comply with an undertaking under s. 145(3) of the Criminal Code; he was sentenced to 22 months in jail and to three years of probation. In January 2022, Mr. Hanssen was sentenced to the equivalent of nine months of pre-sentence custody and to two years of probation for interfering with the use and enjoyment of property under s. 430(1)(d) of the Criminal Code.
[11] During his current incarceration, Mr. Hanssen showed insight into his condition and difficulties. He followed and obtained a certificate of completion in substance abuse and in change is a choice. He registered with a caseworker of the John Howard Society to seek help. He also sees and is treated by a psychiatrist, Dr. Floyd Wood, which he admitted has been beneficial, and which he is willing to continue.
[12] During sentencing submissions, Mr. Hanssen said that he has learned his lesson and that in the future, he will contact his probation officer, or doctors, for advice on how to deal with such fears and issues. He also stated that he was willing to continue with any required treatment.
Parties’ Positions on Sentencing
[13] The Crown recommends a jail sentence of 15 months minus time served. Mr. Hanssen has been incarcerated for 237 days since his arrest on February 4, 2022. Allowing a credit at 1.5 results in a possible credit for pre-sentence custody of 356 days. The Crown also recommends a probation order of two or three years, a DNA order, and a lifetime weapons prohibition. In addition to the statutory probation conditions, the Crown recommends that Mr. Hanssen follows counselling and rehabilitation, as directed by his probation officer for substance abuse and for his psychiatric or mental health issues. The Crown also recommends that Mr. Hanssen contact and apply for intensive case management services with the Canadian Mental Health Association (“CMHA”).
[14] Mr. Hanssen asks for a sentence equivalent to the time served to date, with probation for two or three years. The amicus curiae stressed that this incident was caused by mental health issues, which the accused has taken steps to control, and that very little damage was caused because the accused brought the garbage can outside to minimize damage. No evidence was presented to the court relating to any additional difficulties experienced by Mr. Hanssen during his detention, including because of the Covid-19 pandemic.
Analysis
[15] The Criminal Code provides that the fundamental purpose of sentencing is to protect society and to contribute to the respect for the law and the maintenance of a just, peaceful, and safe society. Sanctions should seek to denounce unlawful conduct, deter offenders and other persons from committing offences, separate offenders from society where necessary, assist in rehabilitating offenders, provide reparations, and promote a sense of responsibility. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A court that imposes a sentence should also take into consideration: any aggravating or mitigating circumstances; sentences imposed on similar offenders in similar circumstances; that offenders should not be deprived of liberty if less restrictive sanctions may be appropriate; and, all available sanctions, other than imprisonment, should be considered.
[16] The accused referenced to R. v. Wells, 2018 BCSC 738, where the court imposed a conditional discharge, and two years probation. However, in that case, Ms. Well did not have a criminal record. She also attempted to retrieve her cigarette from the garbage can.
[17] I mentioned two decisions to the parties: R. v. Adzua, 2018 ONSC 1896 and R. v. Garcia, 2019 ONSC 5095. In Adzua, the accused set fire to his apartment, causing over $148,000 of property damage. He had mental health issues and a long history of alcohol misuse. The Crown sought a jail sentence between 18 to 24 months, followed by two years of probation. The court sentenced the accused to a suspended sentence and placed him on probation for a period of three years with terms that included seeking treatment. In Garcia, the accused was convicted of arson to her apartment building, causing $15,890 of property damage. She had a criminal record for uttering threats and breaching probation. The court sentenced Ms. Garcia to 12 months imprisonment and probation for a period of two years. Three other decisions are mentioned in Garcia: Ismail where the court imposed 12 months and probation, Jonah where the court imposed six months and probation, and Litago where 22 months in the community was imposed.
[18] Arson is a serious crime that involves a reckless disregard for the safety and well-being of others. As Justice Ratushny, as she then was, indicates in Adzua, “In its deliberate form where a person, for whatever motive, lights a fire “intentionally” to cause damage to life and property, a strong denunciatory and deterrent sentence of incarceration is required for the protection of the public”.
[19] However, as was the case in Adzua, the mental health issues and actions of Mr. Hanssen that evening require that sentencing objectives be re-balanced to also focus on rehabilitation.
[20] The aggravating factors include the seriousness of setting a fire at or near a hospital and Mr. Hanssen’s criminal record. The mitigating factors include Mr. Hanssen’s plea of guilt, him taking responsibility for his actions, and him taking proactive steps to improve his mental health. They also include how he brought the garbage can safely outside. Indeed, he did not appear to wish to cause damage by fire, but to bring attention to his mental distress, which clearly influenced his actions that evening. Now undergoing treatment and medication, he seems to understand that this was not an acceptable way to seek help, and that better alternatives were, and are, available.
[21] Considering all the circumstances, I conclude that a suspended sentence with a period of probation of two years is sufficiently denunciatory and deterring. It achieves an appropriate balancing of the sentencing objectives required by the circumstances of this case.
Disposition
[22] Mr. Hanssen please stand.
[23] For the reasons outlined above, I have decided to impose the following sentence:
a. a suspended sentence on each of counts one and two; and
b. probation for a period of two years starting on the date of your release with conditions outlined below.
[24] For purposes of pre-sentence custody credit, I allocate a total of 120 days to both counts, calculated as 80 days of real days of pre-sentence custody, plus a factor of 1.5 to arrive at 120.
[25] The terms of probation include the mandatory terms provided at s. 732.1(2) of the Criminal Code, including that you keep the peace and be of good behaviour, that you appear before the court when required to do so, and that you notify the court, or the probation officer, in advance of any change of name or address and of any change of employment or occupation.
[26] The other terms of probation are the following:
a. You are to report to a probation officer within 48 hours of your release and thereafter as directed by your probation officer. I consent to your probation being transferred to Toronto, should you move to Toronto.
b. You are to attend, comply with, and complete all counselling and treatment as directed by your probation officer in consultation with your treating psychiatrist or doctor, including for substance abuse or addiction and psychiatric care. Specifically, you are to contact the Royal Ottawa Hospital, and seek treatment and counselling with Dr. Floyd Wood, or from a designate of Dr. Wood, or from any other doctor, or counsellor, that Dr. Wood, or his designate, refers you to, and you are to comply with their recommendations regarding ongoing treatment and counselling. You are also to contact the CMHA and seek their advice regarding treatment, including their intensive case management services. Should you move to Toronto, you are to follow-up treatment and counselling with the doctors and counsellors in Toronto, that are recommended by Dr. Floyd Wood or his designate, and by the CMHA.
c. You are to sign all releases and consents, as requested by your probation officer, to confirm your participation in and compliance with the terms of this probation order including your terms of treatment and counselling.
d. You shall provide proof of your attendance and completion of any rehabilitation or treatment programs as directed.
e. You are to abstain absolutely from the purchase, possession, and consumption of any non-medically prescribed drugs, marijuana, or any other intoxicating substances, with the exception of alcohol.
f. You are to live at such address as has been approved by your probation officer.
g. You are not to posses, own, or carry any weapon, as defined in the Criminal Code.
h. You are not to possess any incendiary materials.
[27] I also make two corollary orders, the first being a DNA order for the collection of required bodily fluids. The second is an order under s. 109 of the Criminal Code requiring you to abstain absolutely from the possession of any firearm, ammunition, or any other item referred to in that section, for life. Applicable surcharges are, with the consent of the Crown, waived and not payable given the personal circumstances of Mr. Hanssen.
[28] Mr. Hanssen, your primary focus in the next two years, and thereafter, needs to be on your ongoing and regular psychiatric treatment and counselling, as recommended by your psychiatrist or doctor. I trust that you will comply with all recommendations made for treatment and counselling, and that you will comply with the other terms of probation that I have imposed. Remember that each term of the probation order is a court order. If you do not comply with a term, you could be charged with breaching the probation order and find yourself back before the court.
[29] This decision was read in court on September 28, 2022
Mr. Justice P. E. Roger
Released: September 29, 2022
COURT FILE NO.: 22-8032
DATE: 2022/09/29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
– and –
STEVEN HANSSEN
REASONS FOR SENTENC
Roger J.
Released: September 29, 2022