COURT FILE NO.: CR-22-15806 DATE: 20231031 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

His Majesty the King – and – Jennifer Castillo

COUNSEL:

P. Affleck, for the Crown E. Fennell, for the Defendant

HEARD: September 15, 2023

REASONS FOR SENTENCE

McCarthy J.

[1] The Defendant Jennifer Castillo is before me today for sentencing.

The Offences

[2] On April 4, 2023, the Defendant was found guilty of intentionally or recklessly causing a fire; and willfully causing damage to property in excess of $5,000. The fire took place in the early morning hours of December 30th, 2020, at the Defendant’s then residence at 960 Olive Street in the City of Oshawa.

Materials at Sentencing Hearing

[3] At the sentencing hearing, the court received a pre-sentence report, a forensic psychological assessment of risk and psychopathology report, both a medical report and a social work report pertaining to the Defendant’s mental health and a letter from the Toronto Bail Program summarizing the Defendant’s comportment while on bail. The court also heard from the Defendant herself.

The Crown’s Position

[4] The Crown seeks a conditional sentence of 18 months with numerous conditions followed by a probation order of 3 years under certain terms. The Crown has agreed to a waiver of the victim surcharge. The Crown seeks an order for a DNA sample. The Crown agrees to a stay of the less serious charge of mischief under the Kineapple principle.

The Defendant’s Position

[5] The Defendant suggests a one-year conditional sentence divided between six months of house arrest and six months under curfew, followed by a 2-year probationary period. This sentence will respect the principles of deterrence and denunciation while acknowledging the Defendant’s compliance with bail conditions, her serious mental health challenges and personal stressors at the time of the offences, the strong support she receives from family and friends and her laudable efforts at rehabilitation including weaning off the use of marijuana. The Defendant does not object to the conditions the Crown seeks in respect of the conditional sentence but suggests some flexibility allowing the Defendant to pursue her gym program and engage in suitable employment.

Principles of Sentencing

[6] The principles of sentencing are set out in ss. 718, 718.1 and 718.2 of the Criminal Code, RSC 1985, c. C-46.

[7] In R. v. Levere, [2011] OJ No 3961, 2011 ONCA 576, the Ontario Court of Appeal upheld the sentence of a trial judge who imposed a 12-month conditional sentence with strict conditions, followed by 24 months of probation on a 49-year-old first offender who was suffering from mental health issues but who pled guilty to arson.

Discussion

[8] I accept that this is an appropriate case for a conditional sentence followed by a probationary period: this is the Defendant’s first offence; she is a 35-year mother; she has performed well under community supervision. Since the index offences, she has pursued physical fitness and a healthier lifestyle. The Defendant has ceased using marijuana; the likelihood of her acting out or engaging in violence in the future is rated as low; she now appears to be taking appropriate medication and engaging in therapy both of which allow her to cope with mental health challenges.

[9] I view her rehabilitation prospects to be excellent. She is not a habitual criminal or even a repeat offender. She impressed me in expressing remorse to the court when offered the opportunity. She remains part of a supportive family and is anxious to re-enter the work force. There is no basis to conclude that the offence was in any way pre-meditated.

[10] The sentencing principles of deterrence, both general and specific and denunciation, do weigh heavily here. Wanton destruction of property, for whatever reason, cannot be condoned or tolerated. Private citizens and society have the right to expect that neither public nor private property will fall victim to senseless, mindless, and destructive violence, whether individual or collective. Whatever their motivation, misguided self-righteousness, warped sense of values, or personal circumstances, those who spawn, promote, or commit such violent destruction must face the clear and consistent denunciation of such conduct by our courts.

[11] That said, restraint is certainly called for in this case. I am drawn to the opinion expressed at page 14 of the comprehensive report of Dr Tania Stirpe dated July 12, 2023: “Ms. Castillo’s behaviour appears out of character and in contrast with her history.” And later at page 15, “As previously stated, it is my professional opinion that her risk and needs can be easily managed in the community. With the application of modest social control measures and mental health support, Ms. Castillo possesses the character and resolve to exercise appropriate behavioral self-regulation, while making a positive contribution as a productive member of society.”

[12] The evidence certainly supports these twin conclusions.

[13] I am persuaded that Ms. Castillo has seen the error of her ways; that she is generally remorseful for her conduct and the damage she has caused; that she has made laudable efforts to clean up her life, both mentally and physically; that she has excellent potential to re-enter the work force, to remain drug free, to be a contributing member of society and that she is highly unlikely to re-offend in any manner.

GPS Monitoring

[14] The use of a GPS monitoring device was requested by the Crown. I am not persuaded that it is necessary or appropriate in this case. It was not one of the recommendations in the pre-sentence report. I have found that the chances of the Defendant reoffending are extremely low. The nature of the conditions on her sentence are such that GPS monitoring would be unwieldy, impractical, and unnecessarily burdensome. I am not persuaded that GPS monitoring would promote the principle of denunciation or that it is necessary to enhance deterrence. I would therefore not order it.

Disposition

[15] Jennifer Castillo, please stand.

[16] I sentence you to 12 months to be served in the community as a conditional sentence. During that year you shall observe the following conditions:

1. Keep the peace and be of good behaviour.
2. Appear before the court when required to do so.
3. Report immediately to a supervisor and thereafter report when required by the supervisor and in a manner directed by the supervisor.
4. Remain in Ontario unless you have written permission form the court or the supervisor to leave the province.
5. Notify the court or supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation.
6. You shall reside at 1400 Mary Street in the City of Oshawa (“your residence”)
7. For the first 6 months of this order, you must remain in your residence or on the property of your residence at all times, except a) Fridays between the hours of 2pm and 6pm, to allow you to acquire the necessities of life; b) For any medical emergencies involving you or any member of your immediate family (spouse, child, parent of sibling); c) To go directly to and from or while at pre-scheduled legal, medical, dental, psychiatric, or psychological appointments; d) To go directly to, from, and while at your place of employment; e) With the prior written permission of your supervisor.
8. During your period of home confinement, you must present yourself at your doorway upon the request of your supervisor or a peace officer for the purpose of verifying your compliance with your home confinement condition.
9. For the following 6 months of this order, you must remain in your residence or on the property of your residence at all times daily between the hours of 10pm and 6am, except a) For any medical emergencies involving you or any member of your immediate family (spouse, child, parent, or sibling); b) To go directly to and from or while at prescheduled legal, medical, dental, psychiatric, or psychological appointments; c) To go directly to, from, and while at your place or employment; d) With the prior written permission of your supervisor.
10. You shall not possess any incendiary devices.
11. You shall not contact or communicate with Maheswaran Ponnampalam, Rathini Maheswaran, or Vithuna Maheswaran, directly or indirectly, by any means.
12. You shall not be within 100 metres of anywhere the above-named persons work, go to school, live, worship, or are otherwise known to be.

[17] After you have served the conditional sentence, there shall be a period of two years’ probation during which you must:

1. Keep the peace and be of good behaviour.
2. Appear before the court when required to do so.
3. Notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change in employment or occupation.
4. Report to probation immediately and thereafter as required by your probation officer.
5. Not possess any incendiary devices
6. Not contact or communicate with Maheswaran Ponnampalam, Rathini Maheswaran, or Vithuna Maheswaran, directly or indirectly, by any means
7. Not be within 100 metres of anywhere the above-named persons work, go to school, live, worship, or are otherwise known to be.

[18] In addition, as the convictions relate to two secondary designated offences, the Defendant shall provide a DNA sample to police within 30 days.

[19] As per the Crown request and the Kineapple principle, the charge of mischief is stayed.

[20] And that is the sentence of the court.

McCarthy J.

Released: October 31st, 2023

NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions, it is the official written Ruling that is to be relied upon.