COURT FILE NO.: 49-21
DATE: 2022-10-14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
Christopher Vance
Harutyun Apel, for the Crown
Brendan Neil, for Mr. Vance
HEARD: October 14, 2022
REASONS FOR DECISION ON SENTENCING
conlan j.
I. The Convictions
[1] On June 20, 2022, Mr. Christopher Vance (“Mr. Vance”) entered a guilty plea to count 1 on the Indictment dated June 25, 2021 – that he, on or about July 19, 2020 at Oakville, did intentionally or recklessly cause damage by fire to a dwelling house knowing that or being reckless with respect to whether the said property was inhabited or occupied, contrary to section 433(a) of the Criminal Code.
[2] On June 29, 2022, Mr. Vance entered guilty pleas to three further charges – that he, on or about June 1, 2020 at Oakville, did by verbal means knowingly utter a threat to Manuel Vargas-Gonzalez to cause death to Esther Vance, contrary to section 264.1(1)(a) of the Criminal Code; and that he, between May 31, 2020 and June 1, 2020 at Oakville, did break and enter a dwelling house and did commit therein the indictable offence of theft, contrary to section 348(1)(b) of the Criminal Code; and that he, on or about December 7, 2021 at Milton, did without lawful excuse disobey the lawful order made by a justice of the peace, namely to abstain from communicating directly or indirectly with Esther Vance or their child pursuant to section 516(2) of the Criminal Code, contrary to section 127 of the Criminal Code.
[3] Mr. Vance is now to be sentenced on those four convictions.
II. The Facts
[4] Mr. Vance and the victim, Esther Vance, were married in 2013 and separated in April 2020. They share a young daughter together, and that child is in the custody of Esther Vance.
[5] With respect to the arson, disregard for human life offence, on the date in question Mr. Vance attended the residence of Esther Vance and the child. Esther Vance and the child were both inside, as well as five other persons living in another part of the residence, including a newborn baby. The security camera video filed with the Court captures the frightening conduct of the offender. He poured fuel for several minutes on the ground and along the foundation of the residence. He then lit the fuel, causing a large explosion and a burst of flame. Mr. Vance fled the scene.
[6] Fortunately, nobody was killed or injured. A neighbour and the fire department managed to extinguish the blaze. Extensive property damage resulted.
[7] With respect to the other three charges, the death threat to Esther Vance was relayed by way of a voicemail left by the offender when he contacted a third party. That message was as follows: “you’re fucking my wife, answer the god damn phone, next time you see her she will be dead don’t you understand me, I will fucking kill her”.
[8] Regarding the break and enter and commit offence, Mr. Vance entered the home of Esther Vance and the child without permission. He did so by cutting the screen and crawling inside through a ground level window. Once inside he stole several electronic/computer items, all of which were later recovered and returned to the victim.
[9] With respect to the disobey Court order offence, while on judicial interim release which included a term that he not have any contact or communication with Esther Vance, the offender sent a letter to Esther Vance, indirectly through her mother. In the letter, Mr. Vance discussed the relationship, the child, and the fire that he previously set at the victim’s residence.
[10] In summary, in chronological order, the parties separated, and then about a month later Mr. Vance committed the break and enter and the threatening death offences, followed by the arson endangering life offence, and then finally the disobey Court order offence.
[11] It was, unquestionably, a rash of very serious criminal conduct on the part of the offender.
III. Victim Input
[12] Esther Vance completed a Victim Impact Statement. In it, she describes eloquently the devastating effect that Mr. Vance’s criminal conduct has had on her and the child. The following is taken directly from that statement: “[n]o amount of words can describe the absolute dread I felt as I was confronted with the thought of having to witness my child burn alive or suffocate in front of me and how much of a failure as a mother I would be if I could not get her out. All while trying to stay calm so as not to scare her. This moment still haunts me. It echoes through my days and in my dreams”.
[13] Esther Vance speaks about the fear instilled in both her and the child, and the child’s “meltdowns” and “nightmares”, particularly in reaction to the smell of gasoline and smoke.
IV. Pre-Sentence Report and Filings by the Defence
[14] A Pre-Sentence Report (“PSR”) was prepared and filed. Mr. Vance is 34 years old. He is now single. As noted previously, he entered guilty pleas to these offences, and he was cooperative with the police.
[15] Mr. Vance and the victim were married for about six years before separating. They share the young child together.
[16] According to the offender’s father, Mr. Vance was diagnosed with Asperger’s Syndrome when he was in his twenties. The offender reported that he met Esther Vance in the psychiatric ward of a hospital. He described to the author of the PSR a long history of his own mental health struggles and frequent hospitalizations. He also described a history of alcohol abuse and drug abuse.
[17] Mr. Vance completed grade 10 in the traditional school setting and then later in the year 2000 completed an equivalency program for grade 12. He wants to attend university in the future.
[18] Mr. Vance was most recently employed at Home Depot, where he worked for three years up until 2018.
[19] The offender underwent a psychiatric consultation with Royal Ottawa Health in the Spring of 2022. The resulting report outlines past suicide attempts and a diagnosis on the autism spectrum. Mr. Vance is currently on prescribed medication, including Seroquel.
[20] Mr. Vance presented to the author of the PSR as cooperative and accepting of responsibility for the offences that he committed. It must be noted, as well, that Mr. Vance expressed genuine remorse for his actions when he spoke to the Court today.
[21] Mr. Vance has no family support in the immediate area, and he has no strong friendships. His mother has expressed an interest in him being relocated closer to where the parents are, in New Brunswick, upon his release from custody.
[22] The Defence has filed a series of certificates of completion for Mr. Vance with respect to programs that he successfully undertook while in custody. Those programs were: maintaining employment, setting up a budget, “it’s a gamble”, being an effective father, changing habits, and anger management.
[23] This Court has also been provided with Mr. Vance’s Ontario Student Transcript which shows several courses that the offender enrolled in during the year 2022 – equivalent credits, housing and home design, raising healthy children, healthy active living education, making personal economic choices, navigating the workplace, food and healthy living, and biology.
[24] Finally, the Court has the benefit of a report from Dr. Duboff of the forensic psychiatry program at St. Joseph’s Healthcare Hamilton, dated October 13, 2020. That report confirms diagnoses of borderline personality disorder and alcohol use disorder, severe, plus adjustment disorder. Dr. Duboff was of the opinion that Mr. Vance requires ongoing psychiatric treatment, including psychotherapy.
V. The Positions of the Crown and the Defence
[25] The Crown, relying in part on the decision in R. v. Bevacqua, [2014] O.J. No. 5130, 2014 ONSC 6279, suggests a global sentence for Mr. Vance of eight (8) years in custody, less credit for presentence custody, plus ancillary orders.
[26] In the case relied on, the facts of which were quite similar to ours, the Court, at paragraph 49, placed the appropriate range of sentence for the arson endangering life offence at three (3) to five (5) years’ imprisonment.
[27] I pause here to note that Bevacqua, supra was decided many years ago. Since then, I think it is fair to observe that there has been, for good reason, a heightened awareness of the evils of domestic violence, particularly that perpetrated against women and children. In R. v. Fraser, 2016 ONCA 745, the Court of Appeal for Ontario, at paragraph 30, described domestic violence as an insidious crime that can have long-lasting and devastating effects on the victims.
[28] I would place the range of sentence for arson, disregard for human life, in the context of a domestic relationship, even post-separation, at between four (4) and six (6) years in custody.
[29] The Defence suggests a global sentence for Mr. Vance of six (6) years in custody, less credit for presentence custody, plus the ancillary orders suggested by the Crown and which are not objected to on behalf of the offender.
[30] The Defence points out that its position would allow this Court to impose upon Mr. Vance a lengthy probation order, which order could help not only the offender but could also assist the victims of these offences and the public at large. This Court finds considerable merit to that submission.
VI. The Sentence of the Court
[31] In my view, the chief principles of sentencing in this case are denunciation, specific and general deterrence, and rehabilitation. This is, after all, a first-time offender who comes before the Court with significant mental health issues but who has now been convicted of extremely serious offences.
[32] The guilty pleas mitigate against what might otherwise be the penalty imposed upon Mr. Vance. The mental health issues are mitigating as well.
[33] There are, on the other hand, several aggravating factors on sentence: the planned and deliberate nature of the arson endangering life offence, the fact that the residence was so full of persons at the time that the fire was set, and the domestic nature of the crimes, among them. Section 718.2(a)(ii) of the Criminal Code is applicable here, as “intimate partner” includes, in my opinion, a separated partner, and “abuse” includes, in my opinion, verbal and psychological abuse.
[34] Sentencing is a highly discretionary and individualized exercise. No two sets of facts are the same. No two offenders are the same. This is not a cookie-cutter industry. To craft a sentence that is reflective of the facts and the moral blameworthiness of the offender is not an easy task.
[35] First, the ancillary orders sought by the Crown, and unopposed by the Defence, are imposed. Those are a lifetime firearms and weapons prohibition order under section 109 of the Criminal Code, a DNA order, and a section 743.21 order prohibiting Mr. Vance from communicating directly or indirectly with Esther Vance while in custody, except through a legal representative in the context of a family law court proceeding.
[36] Second, because Mr. Vance will be spending much more time in jail and has already been unable to earn any money for more than two years, the victim fine surcharges are waived.
[37] Third, in terms of the custodial aspect of the sentence, recognizing that counsel agree (and I concur) that Mr. Vance should be credited with 4.5 years of presentence custody (817 actual days grossed-up at the rate of approximately two days for every one served), the sentence of the Court is as follows:
• arson disregard for human life – sixty (60) months in custody;
• break and enter and commit theft – sixteen (16) months in custody, consecutive;
• threatening death – six (6) months in custody, consecutive to the arson but concurrent with the break and enter and commit; and
• disobey Court order – one (1) month in custody, consecutive to all other sentences.
[38] That results in a global sentence of 77 months in custody. Mr. Vance will be credited with 54 months of presentence custody, which is the equivalent of the agreed-upon 4.5 years. That leaves a net sentence from today of 23 months in jail.
[39] All of the presentence time will be credited to the arson endangering life conviction.
[40] Following the custodial sentence, Mr. Vance shall be the subject of a probation order for a period of three (3) years. All of the statutory terms apply. In addition, Mr. Vance shall:
-report to the nearest probation office within three working days of his release from custody and thereafter as required;
-not possess or consume any alcohol or non-medically prescribed drugs;
-not possess any firearm or weapon;
-not possess any incendiary device;
-not communicate in any way with Esther Vance except in the context of a family court proceeding;
-not attend any residence or place of employment or place of education known to him to be that of Esther Vance;
-not be within 100 metres of the person of Esther Vance except for attendance at a scheduled court proceeding;
-attend any treatment or counselling program recommended by his probation officer and sign any releases of information demanded of him in that regard; and
-perform 100 hours of community service work at the direction of his probation officer, such work to be completed within the first twelve months of the probation order.
[41] That is the sentence of the Court – to summarize, 23 months in custody from today, plus probation for three years, plus the ancillary orders.
[42] I thank both Mr. Apel and Mr. Neil for their helpful submissions on sentence. I will now ask both counsel if there anything else that they would like me to address.
C.J. Conlan J.
Released: October 14, 2022
COURT FILE NO.: 49-21
DATE: 2022-10-14
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
Christopher VANCE
REASONS FOR decision on sentencing
C.J. Conlan J.
Released: October 14, 2022