Court File and Parties

COURT FILE NO.: CR-22-012 (Owen Sound) DATE: 2024-08-02

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: His Majesty the King

-and-

Taran Hibma

Counsel: L. Dafoe, for the Crown R. Shankar, for Mr. Hibma

Heard: June 17, July 17 and August 2, 2024

Justice: R. Chown

Reasons for Sentence

[1] Mr. Hibma has been found guilty of criminal negligence causing death. The case involved the death of Genesis Young, age 17, in a fire caused by Mr. Hibma when he inserted lit sparklers into a sleeping cabin where Ms. Young and her boyfriend were sleeping, resulting in the ignition of a mattress and the treehouse. This case gives rise to an exceptionally difficult sentencing decision. The jurisprudence includes many examples where a long sentence is given out for criminal negligence causing death, in large part to reflect the principle of denunciation. However, there are competing factors in this case, including the young age of the offender. I have also had to determine whether a conditional sentence is appropriate.

[2] The discrepant positions of counsel, as well as the Crown’s change in position between the hearing on June 17, 2024 and the hearing on July 17, 2024 show how difficult the case is. The defence initially asked for a conditional sentence without specifying any non-mandatory terms other than mandatory addictions counselling at least twice per month, or alternatively a sentence of time served based on time that Mr. Hibma spent at a rehab facility. Neither of these proposals were a realistic proposal and neither had any grounding in the jurisprudence. In contrast, at the first hearing, the Crown’s position was that a penitentiary sentence of seven to eight years was appropriate. I disagreed with that position, finding it far too harsh, but the Crown was able to point to jurisprudence, discussed below, that supported it. By the time of the July 17, 2024 hearing, the Crown had changed its position to incarceration of two years less a day. This change was informed by the additional medical information about the offender that the defence had pointed out, by the position of some of Genesis Young’s family, and no doubt by some of the comments I made at the first hearing date.

[3] The victim impact statements identify the profound grief experienced by the family, and the serious toll Genesis death has imposed. Genesis’s mother and Aunt both described ongoing, serious mental health consequences and fallout for themselves as well as Genesis’s brother and grandparents. At the same time, Genesis’s aunt, Tracy O’Donnell, noted that Genesis considered Mr. Hibma to be a close friend. Ms. O’Donnell said she felt she would be letting Genesis down if she “let another kid fall victim to that night,” and that she forgave Mr. Hibma. I understand from a letter written by Mr. Hibma’s father that other members of Genesis’s family have expressed forgiveness towards Mr. Hibma.

Principles of Sentencing

[4] Under the Criminal Code, s. 718,

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[5] Under s. 718.1, it is a fundamental principle that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

Circumstances of the Offence

[6] This was a serious offence. I gave detailed reasons for judgment and the transcript of those reasons has been prepared. I will not repeat the facts, other than to note that Genesis Young died at age 17 in the fire that Mr. Hibma caused, and to note that the fire was the result of criminal negligence on the part of Mr. Hibma. However, the Crown did not suggest or attempt to prove that Mr. Hibma intended for Ms. Young to die in the fire.

[7] Mr. Hibma actively attempted to hide the fact that he caused the fire by lying in his statement to police about how he was asleep in the living room when the fire started and how the injury to his hand was caused.

Circumstances of the Offender

[8] Mr. Hibma is currently 22 years old. He turned 18 three and a half months before the offence date.

[9] Before the offence date, Mr. Hibma did have some moderate mental health difficulties and an alcohol abuse issue. Medical records indicate that at age 15 he took an intentional overdose of Trazadone with intent to die. A hospital social worker’s note from April 2018 indicates that Mr. Hibma had then been in counselling with Keystone “for years.” He had a history of anorexia when he was age 13 and had multiple evaluations by psychiatrists over the years. I say his mental health issue was moderate, strictly from my lay understanding, because despite any mental health issues he was having he seemed to have a friend group and he graduated from high school as an Ontario Scholar. This suggests he was functioning well in some areas. With that said, I infer from some of the records that Mr. Hibma missed time from school in 2019 due to anxiety, for which he was treated with medication, and the medication was helpful to him.

[10] The PSR indicates that Mr. Hibma began binge drinking on weekends in grade 9 and that he had been arrested for public intoxication in the past.

[11] On July 17, 2020, about a month before the offence date and shortly after graduating from grade 12, Mr. Hibma again went to Owen Sound hospital. He was seeking help for his alcohol consumption. He was seen by a mental health professional, likely a counsellor, who provided support and resources on addiction and anxiety and referred him for psychiatric consultation.

[12] Alcohol played a large role in the events of August 14 and 15, 2020. Mr. Hibma consumed an excessive amount of alcohol.

[13] Mr. Hibma was seen in a psychiatric consultation on August 31, 2020, i.e., about two weeks after the offence date. At the time, he was working for McDonald’s and was intending to return to high school for grade 13. It was on September 9, 2020, or about 10 days after that that Mr. Hibma gave his recorded interview to Det. Staff Sgt. Johnson.

[14] According to a letter from Mr. Hibma’s mother, after Mr. Hibma was charged, he lost most of his friends and isolated himself in fear of running into anyone he knew. I infer from this that he was embarrassed and felt shamed or ashamed. Mr. Hibma’s mother indicates that his cravings and substance abuse escalated, to the point where he was consuming hand sanitizer and huffing inhalants to find some relief.

[15] From the evidence, it is well established that Mr. Hibma has a serious and longstanding substance abuse issue.

[16] In his allocution Mr. Hibma stated that he was sorry and he asked for forgiveness from those who had been affected by Genesis’ death. He said that alcohol has ruined his life and caused damage to those in his vicinity. He prayed that everyone involved may find peace moving forward in their lives.

Aggravating and Mitigating Circumstances

[17] A principle that I must take into consideration is that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence with the offender: CCC s. 718.2(a).

1. Aggravating Circumstances

[18] One could say that the most obvious aggravating factor is that a person died as a result of the offence. At the same time, the offence itself is criminal negligence causing death, so death is included within the definition of the offence and is therefore not an additional aggravating factor.

2. Mitigating Circumstances

[19] The most obvious mitigating factor is Mr. Hibma’s youth. He was 18 years old at the time of the offence. Had he been a few months younger, he would have benefited from the Youth Criminal Justice Act and a much lighter sentence could have been expected. In addition, there is a theme in some of the jurisprudence to the effect that sentences for young adults should be lighter than for older adults. It is sometimes considered that the same conduct from a younger person is less morally blameworthy than from an older person.

[20] Substance abuse disorders are often considered a mitigating factor.

[21] This case has received attention in the local media. Mr. Hibma’s father’s statement for sentencing says that as a result of Mr. Hibma’s name and the charges being published by various media sources, Mr. Hibma lost nearly all his friends. Mr. Hibma is afraid of public recognition and has isolated himself. This and the release conditions resulted in coping issues and relapses (incidences of alcohol sourcing and consumption), which led to a breach and three month stay in Central North Correctional Center. I consider these to be mitigating factors.

[22] I have received multiple letters from Mr. Hibma’s family members. Mr. Hibma will have considerable support from his family, and that is often considered a mitigating circumstance.

[23] It is always difficult to know whether someone is truly remorseful. In this case, I believe Mr. Hibma is remorseful and I accept that as a mitigating factor.

Sentences Imposed in Similar Offences

[24] Another principle that I must take into consideration is that an offender’s sentence should be similar to the sentences imposed on similar offenders for similar offences committed in similar circumstances: Criminal Code, s. 718.2(b).

[25] The R v Issaky, 2012 ONSC 2420 case is a case that the Crown initially relied very heavily on in its submissions. Among the many cases I have reviewed, it is perhaps the most similar case, factually, to this case. The offender, as a prank, had flicked his lighter to start a small flame on an artificial Christmas wreath on the second-floor hallway door of a high-rise apartment building and walked away. The facts do appear to call for a higher sentence than is appropriate here. Two people were killed in the fire, and many lives were put at risk; the offender was 23 at the time of the offence not 18; there is no mention of alcohol being involved; the offender actually ignited the wreath and was apparently aware it was burning and did not advert to the risk he had created. But it was a brief act – probably briefer than the act here – and Mr. Issaky had the benefit of the significant mitigating factor of a guilty plea. Ratushny J. said, “For this kind of obviously dangerous and mindless prank, a penitentiary term is required,” and but for the offender’s youth and his limited record he would have imposed a term in the range of eight to nine years. He imposed a sentence of six years and ten months.

Availability of Conditional Sentence Order

[26] For reasons I will explain, in this case I was obliged to consider making a conditional sentence order. I seriously considered it, to the point of adjourning the sentencing hearing so I could receive some realistic options for such an order. As I will also explain, I have concluded that a conditional sentence order is not appropriate in this case.

[27] Section 742.1 of the Criminal Code gives a judge authority to impose a conditional sentence instead of a jail term. However, several requirements must be met before a conditional sentence order is available as an option for a sentencing judge.

[28] The first requirement is that the sentence the court imposes must be less than two years. Based on the jurisprudence counsel have provided and on the reading I have done on my own, the circumstances of this case could justify a sentence of more than two years. However, the Crown’s change in position has made this easier. This requirement is met.

[29] The second condition is that the court must be satisfied that service of this sentence in the community would not endanger the safety of the community. That is not an issue here. I have no reason to think that Mr. Hibma will reoffend, and plenty of reason to think that he will not ever do something equivalent to what happened on August 15, 2020.

[30] The third condition is that the conditional sentence must be consistent with the fundamental purpose and principles of sentencing. To explain why this condition is not met in this case, I need to step back and review some of the fundamentals of conditional sentences.

[31] The Supreme Court of Canada in R. v. Proulx, 2000 SCC 5, set out the legislative history that gave rise to s. 742.1 and goals of a conditional sentence. The decision was written by then Chief Justice Lamer in 2000. His decision is lengthy but contains a summary at para. 127. I reproduce parts of that summary below, with some additional commentary.

1. Bill C-41 in general and the conditional sentence in particular were enacted both to reduce reliance on incarceration as a sanction and to increase the use of principles of restorative justice in sentencing.
2. … Parliament intended conditional sentences to include both punitive and rehabilitative aspects. Therefore, conditional sentences should generally include punitive conditions that are restrictive of the offender's liberty. Conditions such as house arrest should be the norm, not the exception.
3. No offences are excluded from the conditional sentencing regime except those with a minimum term of imprisonment, nor should there be presumptions in favour of or against a conditional sentence for specific offences.
4. The requirement in s. 742.1(a) that the judge impose a sentence of imprisonment of less than two years does not require the judge to first impose a sentence of imprisonment of a fixed duration before considering whether that sentence can be served in the community. Although this approach is suggested by the text of s. 742.1 (a), it is unrealistic and could lead to unfit sentences in some cases. Instead, a purposive interpretation of s. 742.1(a) should be adopted. In a preliminary determination, the sentencing judge should reject a penitentiary term and probationary measures as inappropriate. Having determined that the appropriate range of sentence is a term of imprisonment of less than two years, the judge should then consider whether it is appropriate for the offender to serve his or her sentence in the community. [Emphasis added.]

[32] As a comment here, I will note that in 2005, in another Supreme Court of Canada decision, R. v. Fice, 2005 SCC 32, at para. 13, McLachlan CJC referred to this element of Proulx, saying:

… Lamer C.J. held that “the requirement that the court must impose a sentence of imprisonment of less than two years can be fulfilled by a preliminary determination of the appropriate range of available sentences” (para. 58). Of course, the overall approach to s. 742.1 suggested by Lamer C.J. still requires a sentencing judge to proceed in two stages: first, the judge must determine if a conditional sentence is available; if it is, the judge must then determine if it is appropriate. However, at the first stage of this analysis, Lamer C.J. made it clear that the judge need not impose a term of imprisonment of a fixed duration; rather, the judge need only exclude two possibilities: (i) probationary measures, and (ii) a penitentiary term. Lamer C.J. explained that “[i]f either of these sentences is appropriate, then a conditional sentence should not be imposed” (para. 58). In making this preliminary determination, he noted that “the judge need only consider the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 to the extent necessary to narrow the range of sentence for the offender” (para. 59). [Emphasis added.]

[33] I return to the summary at para. 127 of Proulx:

5. As a corollary of the purposive interpretation of s. 742.1(a), a conditional sentence need not be of equivalent duration to the sentence of incarceration that would otherwise have been imposed. The sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence.
6. Once the prerequisites of s. 742.1 are satisfied, the judge should give serious consideration to the possibility of a conditional sentence in all cases by examining whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. This follows from Parliament’s clear message to the judiciary to reduce the use of incarceration as a sanction.
7. A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be. There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future.
8. Generally, a conditional sentence will be better than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and the community, and promotion of a sense of responsibility in the offender and acknowledgment of the harm done to the victim and the community.
9. Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration. Where objectives such as denunciation and deterrence are particularly pressing, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved. However, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of lesser importance, depending on the nature of the conditions imposed, the duration of the sentence, and the circumstances of both the offender and the community in which the conditional sentence is to be served. [Emphasis added.]

[34] Later appellate jurisprudence also emphasizes that the terms of the conditional sentence are very important in assessing whether a conditional sentence order satisfactorily addresses the goals of sentencing set out in s. 718.

Importance of Denunciation

[35] There are competing principles at play in this case. First, denunciation and general deterrence are sometimes said to be the most important factors in determining a fit sentence in criminal negligence causing death cases, and cases that result in fatalities typically require a penitentiary term.

[36] The defence argues, and I agree, that criminal negligence cases arising from driving call for general deterrence and that is not as important in this case. Drinking and driving is a widespread problem so there is a benefit to sending a signal to the public that it will not be tolerated. Events such as the fire in this case are much less common.

[37] However, denunciation is a key sentencing goal in cases like this one. The cases contain comments such as the following that point towards a custodial sentence and away from a conditional sentence in this case:

• “Where the offender’s conduct results in serious personal injury or death, the gravity of the offence must be given predominance in determining the appropriate sentence. … [A] penitentiary range sentence was essential to adequately address the paramount sentencing purposes of denunciation and general deterrence”: R. v. Nusrat, 2009 ONCA 31, at paras. 67 and 69. That case involved street-racing on highway 400 and resulted in the death of a driver who was not involved in the racing. See also R. v Lehl, 2022 ONSC 5843, at para. 59 to 62.
• “The public should not have to wait until members of the public are killed before the courts’ repudiation of the conduct that led to the killing is made clear”: R. v. McVeigh (1985), 22 C.C.C. (3d) 145, at p. 150.

Custodial Sentences to be Avoided for Youthful Offenders

[38] The competing principle to the importance of denunciation in a case of this nature, is the principle that where the offender is youthful, rehabilitation is the most important consideration in sentencing:

• “It is well- established that rehabilitation and specific deterrence are the paramount considerations on the sentencing of a youthful first offender; undue weight should not be placed on general deterrence”: R v. Beauchamp, 2015 ONCA 260, at para. 379. This case involved fraud-related offences arising out of a widespread credit and debit card skimming scheme.
• “It is well established by the case law that when sentencing a youthful first offender the paramount considerations are rehabilitation and specific deterrence; a sentencing judge should not place undue weight on general deterrence”: R. v. Ijam, 2007 ONCA 597, at para. 55. This case involved a sophisticated counterfeit operation.
• “[T]he primary objectives in sentencing a youthful first offender are individual deterrence and rehabilitation. A sentence imposed on a youthful first offender should constitute the minimum necessary sanction that is adequate, community-based dispositions must be considered, and more serious forms of punishment imposed only where necessary”: R. v. Kutsukake, at para. 18. In this case the accused had pled guilty to criminal negligence causing death. While driving, she had towed the victim, who was wearing roller blades, at a speed of up to 80 km/h while he hung on to the driver’s side pillar. The sentencing judge had imposed a sentence of 12 months imprisonment, among other sanctions. The Court of Appeal overturned this and ordered an 18-month conditional sentence with the first nine months including house arrest.
• “The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence. Where, as here, the offender has not previously been to penitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives”: R. v. Borde, 63 O.R. (3d) 417, at para. 36. In that case, the offender pled guilty to aggravated assault, weapons offences, and breach of recognizance. In part because of the offender’s serous youth record, the Court of Appeal agreed with the trial judge that a penetentiary sentence was necessary, but did reduce the sentence.
• “Moreover, a conditional sentence can meet the objectives of general deterrence and denunciation”: Beauchamp, at para. 380; Ijam, at para. 58; R. v. Refaeh, 2024 ONSC 1604, at para. 112.
• A “deterrence message ordinarily should not be sent when the cost is imprisoning a youthful first offender where all other factors strongly point to a conditional sentence”: Ijam, at para. 380.

A Conditional Sentence is Not Appropriate Unless Appropriately Crafted

[39] A third principle that is significant here arises from a line of cases that say a conditional sentence must be properly crafted if it is to be used. Sentencing judges making conditional sentence orders have been cautioned by appellate courts to ensure that the conditions are crafted to address the actual problem with active efforts and adapted to the particular offender. While efforts to avoid imposing a jail term to a youthful offender are important, sentencing judges must ensure that a conditional sentence is a fit sentence.

• “No one can guarantee results. But a conditional sentence which makes little or no effort to address a real problem is just tokenism. A conditional sentence drafted in the abstract without knowledge of what actual supervision and institutions and programs are available and suitable for this offender is often worse than tokenism: it is a sham”: R v Brady, 1998 ABCA 7 at para. 134.
• “A properly crafted conditional sentence should force the offender to work full time at a job, or schooling, or treatment, assuming of course it is not appropriate to confine him to an institution or place him under house arrest”: Brady, at para. 134.
• “A conditional sentence is intended to punish, and should generally include punitive conditions restricting the offender’s liberty. House arrest or a strict curfew should be the norm, and the idea is to have tight controls, absent some specific reason”: R. v. MacKinnon, 2005 ABCA 8.

Application to this Case

What would Rehabilitation “Look Like” Here?

[40] I have considered what rehabilitation means in Mr. Hibma’s case. In the context of sentencing, rehabilitation typically refers to a restoration or change for the good that someone experiences through their sentence. Very often, the rehabilitation we hope for includes an end to substance abuse and that is the case here. Alcohol abuse was a factor in the crime here, and in Mr. Hibma’s case, his rehabilitation requires a change in him that results in an end to his substance abuse. The other changes one would hope for involve him becoming a productive member of society through employment and service to the community. He also seems to suffer from depression and anxiety, and thus a change we would like to see in Mr. Hibma is improved mental health. Finally, Mr. Hibma’s reputation and relationships have been impaired. We would like to see him gain some standing in his community and a circle of friends. Some of these things are likely to flow naturally over time if Mr. Hibma eliminates his substance abuse and finds productive work.

Options for a Conditional Sentence

1. LaunchPad

[41] The defence proposed several options for a conditional sentence order. One option was to sentence Mr. Hibma to reside at and participate in rehabilitation at LaunchPad. LaunchPad is a residential rehabilitation facility in Windsor. Mr. Hibma spent considerable time at LaunchPad after the offence date and before trial. At trial, I heard a good deal of evidence about the facility. Its programming requires heavy participation in the mornings in various forms of group and other therapy, with limited programming and considerable freedom in the afternoon. Residents are free to come and go from the facility as they please, but there are consequences if they leave after 11PM. Presumably there would also be consequences if a resident was not present for therapy. I also heard evidence that if there are three breaches of the conditions of living at LaunchPad, the resident will be required to find a new place to live, but they do give grace for some breaches.

[42] Mr. Hibma was at LaunchPad for almost a year starting at the end of 2021. He was also there from about September of 2023 for a period of time. Mr. Button said Mr. Hibma returned because he had relapsed and was using drugs. Mr. Button described that Mr. Hibma acted out by drinking hand sanitizer. I heard evidence that Mr. Hibma and another witness, Phillip Maltese, engaged in cocaine use while in the facility. That evidence came from Mr. Maltese. In my reasons for judgment, I relied only on a small part of Mr. Maltese’s evidence because I was concerned about his credibility. Mr. Maltese described some inculpatory statements made by Mr. Hibma and I was unwilling to rely on much of what Mr. Maltese said Mr. Hibma confessed to. The drug use Mr. Maltese described was not significant to the issue of Mr. Hibma’s guilt, so I did not address that. However, I did accept most of what Mr. Maltese said about his drug use with Mr. Hibma at LaunchPad. There can be no doubt that Mr. Hibma was at least present while Mr. Maltese did cocaine in their room. I also heard evidence from Mr. Hibma’s father that he spoke with Mr. Maltese on about October 3, 2023 and Mr. Maltese demanded $400 for drugs that he said he had supplied to Mr. Hibma. Mr. Hibma Sr. said that he asked Mr. Hibma about this during that same conversation, and Mr. Hibma replied, “I don’t know what to say.” Mr. Hibma Sr. emphasized that he did not think Mr. Hibma was under the influence of drugs at that time. That may be true, but between Mr. Maltese’s evidence and the comment, “I don’t know what to say,” the proper inference is that Mr. Hibma had consumed cocaine with Mr. Maltese in late September or early October of 2023. Based on this, the support letters I received from Mr. Hibma’s family members to the effect that he made great progress at LaunchPad or that he remained sober while there must be taken with a very large grain of salt. The evidence would suggest that Mr. Hibma continued to struggle with substance abuse as late as October of 2023, and I have no reliable evidence of significant improvement since then.

[43] Certainly, I do not have the same kind of evidence here that was available in the Ijam case I referred to above, where the offender had an impressive, documented potential for rehabilitation.

[44] Mr. Hibma’s parents both reside in Owen Sound, and I do not recall any evidence that he had family or other supports outside of LaunchPad in Windsor. A conditional sentence order focused on further time at LaunchPad would be a wholly unsuitable sentence as it offers no real punishment, and I am not satisfied that it would adequately address Mr. Hibma’s rehabilitation. That is not meant as any criticism of LaunchPad. To the contrary, it appears that Mr. Button and LaunchPad do admirable work. It is simply that LaunchPad is not the right facility to achieve the objectives of sentencing in this case.

2. Turning Point

[45] Another proposed option was the Turning Point recovery centre in London. I heard testimony from Robert Chiasson who works there. Some of the people in recovery at Turning Point are there under probation and some are on bail, so staying there may in some cases be part of probation or bail conditions. Residents must maintain strict adherence to sobriety and any deviation from this results in automatic discharge. That would potentially be setting up failure for Mr. Hibma’s conditional sentence. Mr. Chiasson also said that he did not see it as the role of Turning Point staff to enforce a court order. He also did not seem comfortable with the idea that discharge from Turning Point would result in a return to jail for a resident. I do not see Turning Point as an appropriate option to be the focus of a conditional sentence order in this case.

3. Brightshores

[46] Another proposed option was the Brightshores rehabilitation facility in Owen Sound. It is a residential facility that offers a variety of treatment including peer support and other therapy. The treatment team includes support from a peer worker, treatment planner, recovery worker, program worker, RN, RPN, OT, and family support worker. The facility includes acute withdrawal management services and addiction treatment services and long-term suites. I heard testimony from Jennifer Virtue who is a supervisor for the wellness and recovery team at Brightshores. The facility is not a secure facility but does have controlled access, so anyone could leave but they would have to re-enter through a controlled access point. Thus, if Mr. Hibma left, staff would become aware of it when he re-entered, if not before. Ms. Virtue indicated that the facility would be able to house Mr. Hibma for one year. In cross examination of Ms. Virtue, the Crown made an issue of the fact that others with criminal records would be there, and their criminal records are only identified through self-report. However, I do not see that as an issue because every correctional facility will be full of people with criminal records.

[47] Brightshores appears to be a better option for a conditional sentence than LaunchPad, but I do not think that Brightshores on its own would be an appropriate option. It would do little to address the denunciation goal. But importantly, I am not persuaded that on its own it would adequately address Mr. Hibma’s rehabilitation. I am concerned that a one-year stay at Brightshores may become inappropriate. Much can change in one year. Based on Ms. Virtue’s evidence, it appears to be more than can be expected of the staff there to impose on them the responsibility to police any mis-steps on the part of Mr. Hibma when they will know that ejecting him from the facility will result in him being sent to jail. Further, my sense of it is that Mr. Hibma has a powerful substance abuse issue and there is a strong chance that imposing Brightshores as part of a conditional sentence would be setting him up for failure.

[48] The defence did propose that it might be appropriate to include a house arrest condition for Mr. Hibma for after he is released from Brightshores or another treatment facility. He is willing to wear a GPS monitored ankle bracelet. His parents are both willing to supervise house arrest at their respective residences after his release from such a facility.

None of the Options for a Conditional Sentence Would be Appropriate.

[49] In result, while Mr. Hibma’s youth does require that I focus on the goal of rehabilitation and while it does require that I consider a conditional sentence, none of the options available for a conditional sentence would be appropriate in this case. I am convinced that only a jail sentence followed by probation with some strong probation conditions and recommendations is the appropriate sentence. The opportunity for early release will undoubtedly be a powerful incentive for Mr. Hibma. With good behaviour, his jail time will be short for a case involving a fatality.

Treatment Centre within Correctional System

[50] The last option proposed by the defence was that Mr. Hibma be sentence do a provincial correctional facility with a strong recommendation that he be admitted to St. Lawrence Valley Correctional and Treatment Centre or another appropriate treatment centre. However, I was provided with very little detail about the nature of St. Lawrence or any other treatment facility within the Ontario corrections system. The one document I was provided might be indicating that an admission requirement for St. Lawrence is that the offender committed offences that are sexual in nature. I am not willing to recommend something to correctional services without a strong basis in evidence that it is appropriate. It is better that I trust correctional services to put Mr. Hibma in the most appropriate setting. They will be provided with these reasons.

Sentence

[51] Mr. Hibma please stand.

[52] I have considered the role that punishment may play in your rehabilitation. At the last hearing, I observed that some of your behaviour since the offence was consistent with self-punishment. Now, I won’t pretend to know much about your psychology. And I do not think that sentencing you to jail will address your mental health issues in any way. Indeed, jail might be a terrible place for your mental health. However, if there is an element of self-punishment taking place within you, I do hope that the punishment of jail that I am imposing will allow you to feel adequately punished for what occurred, and able to move on. I hope that once you have gotten through it you can accept that you have been punished and move on. I am not imposing a light sentence in this case, and neither is it a long sentence. It is the most appropriate, just and fit sentence I can fashion.

[53] I sentence you to 18 months in custody. You will be given credit at 1.5:1 for any days you have spent in custody before trial and seven days of Downes credit.

[54] I further sentence you to probation for 18 months. The conditions of your probation will be the following:

a. keep the peace and be of good behaviour; b. appear before the court when required to do so by the court; c. notify your probation officer in advance of any change of name or address, and promptly notify your probation officer of any change of employment or occupation. d. report to a probation officer (i) within two working days of your release from custody; and (ii) and after that, when required by the probation officer and in the manner directed by the probation officer; e. remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the probation officer; f. abstain from the consumption of drugs except in accordance with a medical prescription, of alcohol or of any other intoxicating substance; g. provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation at regular intervals that are specified by a probation officer in a notice in Form 51 served on you; h. if you agree, and subject to the program director’s acceptance of the offender, participate actively in a treatment program approved by the province; i. if required by your probation officer, attend at a treatment facility, including a residential facility, designated by the Lieutenant Governor in Council of Ontario, for assessment and curative treatment in relation to the consumption of alcohol or drugs that is recommended pursuant to the program, and to follow the rules of any such facility; j. If required by your probation officer, to obey any curfew that he or she may direct; k. If required by your probation officer, to not attend any location that he or she may direct. l. Cooperate with your probation officer. You must sign any 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.

[55] It is my recommendation that upon your release from custody that you attend Brightshores on a residential basis for such length of time as the director of Brightshores recommends and that you follow the requirements of that institution and any other requirements that may be imposed by your probation officer.

[56] I have specifically given the probation officer a tool of setting a curfew and directing you not to attend any location he or she may direct; however, this is not intended to be additional punishment. Rather, I want the probation officer to specifically have these tools available to help ensure your abstinence from alcohol or illicit drugs.

[57] I have carefully considered whether it is appropriate to include the provision that you abstain from drugs or alcohol. If you breach that condition, it will be an offence and potentially land you in more trouble. I am concerned about setting you up for failure. However, those involved will have experience and discretion in dealing with people with substance abuse issues. It is in my view necessary to make this order to give the probation officer the option to require you to attend a treatment facility if that is appropriate.

[58] Mr. Hibma, I understand you may be eligible for release before serving the full sentence. You will then have 18 months of parole during which I hope you will attend a treatment facility and if it goes well, I hope that within 3 to six months of that you will be in a good position to continue your education or to find employment and to get launched on life. You clearly have the love and strong support of your family and that bodes well for your future.

[59] To Genesis’ family members and friends, Genesis will never be forgotten by you. And I am sure you will never be able to forget the tragic events that resulted in this prosecution. I can only imagine how difficult it must have been for you to sit through this case. I want to say to you that I was so very impressed by the victim impact statements and the positions taken in them. It really restores faith in humanity to see how you have responded with compassion towards Mr. Hibma in the circumstances. You have done immense credit to the memory of Genesis. I wish the very best for you and hope you can find peace.

Chown J.