Court File and Parties

Court File No.: 8502/21 Date: 2024-01-31 Ontario Superior Court of Justice

Between: His Majesty The King And: Joseph Gingras, Defendant

Counsel: Robert Skeggs, for the Crown Angela Ruffo/Cara Barbisan, for the Defendant

Heard: December 14, 2023

Before: Varpio J.

Reasons for Sentence

Overview

[1] On July 10, 2023, Mr. Joseph Gingras pleaded guilty to aggravated assault and arson causing damage to property. An agreed statement of fact was filed on the guilty plea. A brief recitation of same is a helpful introduction to these reasons. On September 22, 2019, Mr. Gingras was staying at Mr. Darrell Johnson’s residence. Mr. Gingras had stopped working in the summer of 2019 and his life was in a downward spiral of excessive drug and alcohol use. Mr. Thomas Boissoneau and Mr. Johnson are cousins, and the former came to the latter’s house on the date in question. The three began drinking and using cocaine. Mr. Gingras and Mr. Johnson began using crystal methamphetamine. Mr. Boissoneau consumed benzodiazepines and marihuana.

[2] Mr. Boissoneau began having suicidal ideations. Mr. Gingras suggested to Mr. Boissoneau that the offender should douse the victim in gasoline as a way of attempting to dissuade the victim from committing suicide. Mr. Gingras then joked that they should both be doused in gasoline and set on fire. This was an attempt to show Mr. Boissoneau the absurdity of the position.

[3] Mr. Gingras then began pouring gas around the living room, and Mr. Gingras showered both men in gasoline.

[4] A fire erupted in the house. The flames were started by Mr. Gingras.

[5] Mr. Gingras accepts that he intentionally poured gasoline around the residence and on Mr. Boissoneau, in circumstances with a lighter present, which actions gave rise to an objectively foreseeable risk of bodily harm, and that he was at least reckless as to the probable consequences of fire damage. These facts support findings of guilt for aggravated assault and arson causing property damage: see R. v. Schuck, 2003 BCCA 282 at para. 8; R. v. Vang; and R. v. Kupec, 2015 ONSC 7096 at para. 77.

[6] Ultimately, Mr. Gingras suffered burns to 15% of his body and was hospitalized for 72 hours. Mr. Boissoneau suffered burns to 39% of his body and spent a month in hospital in Toronto. Mr. Johnson’s house burned to the ground.

The Evidence Filed at the Sentencing Hearing

Victim Impact Statement

[7] The victim provided a statement to the court wherein he stated that the offence has had a profound impact upon his life. He spent three days on life support, 30 days in a coma and a further 15 days in recovery. He suffers from PTSD and severe paranoia such that he is unable to be around the general public. He also suffers from loss of sleep, poor concentration, nightmares, depression and anger outbursts.

[8] The local media coverage of this matter caused a rift as between Mr. Boissoneau and his immediate family such that Mr. Boissoneau moved to Western Canada to get away from negative stressors.

[9] Mr. Boissoneau is scarred for life and is constantly itching as a result of skin grafts. He is self-conscious about his appearance. He feels that he will never recover as his hands will never work as they did prior to the incident. They are always numb or stiff.

[10] Financially, Mr. Boissoneau lost two years of work where he earned $10,000/month doing shutdowns at Algoma Steel and at other plants. Mr. Boissoneau left a job at a gold mine because of the stress of the trial process.

[11] The offence has thus had a profound and negative impact upon Mr. Boissoneau.

[12] I have no evidence before me as to the long-term impact upon Mr. Johnson.

Mr. Gingras’ Criminal Record

[13] Mr. Gingras has a cluster of offences upon his record that begin in 1997 and end in 2002. He received a seemingly steady tariff of approximately 15 to 60 days for those offences which involved resisting arrest, failing to attend court, and the like.

[14] In 2003, he received a global 10-month sentence for assault with a weapon and in 2006, he received a global 14-month sentence for assault with a weapon, obstruct police officer and failure to comply with recognizance.

[15] In 2013, he received a global 12-month sentence for three counts of assault, and one count of uttering threats.

[16] In February 2021, he was found guilty of mischief under for an offence that occurred while he was in custody. He received a sentence of one day time served.

Pre-Sentence Report (“PSR”)

[17] Mr. Gingras is a 46-year-old Indigenous man from the Batchewana First Nation, located just outside Sault Ste. Marie. He grew up with his parents and two siblings in Batchewana and in Sault Ste. Marie. His father suffered from alcohol addiction and quit drinking entirely when Mr. Gingras was 10 years old. Nonetheless, Mr. Gingras’ father remained physically, psychologically, and emotionally abusive towards Mr. Gingras.

[18] Mr. Gingras left home at age 15 to begin work after completing Grade 10. He has an adult son from a relationship he was in during the 1990’s, and three daughters from a subsequent relationship. Mr. Gingras has no relationship with his son but maintains that he has a positive relationship with his daughters.

[19] Mr. Gingras began abusing alcohol and substances shortly after he left home. He used hallucinogens, cannabis, morphine, pills, cocaine, as well as alcohol. The PSR writer reports:

The subject is cognizant of his [sic] trouble his substance abuse has caused him and that it has significantly impacted all aspects of his life. Most of, if not all his offences are substance related, he acknowledged that when he is facing a difficult situation he has resorted to alcohol and drug use which subsequently led him to make a poor decision. He admitted to being intoxicated at the time of the index offence.

[20] Mr. Gingras expressed remorse and regret for his actions on the day of the offence, indicating that he was “only trying to scare his friend out of committing suicide”.

[21] The PSR writer noted that a psychological report was completed in 2004 while the accused was detained in the Algoma Treatment and Remand Centre (“ATRC”). The PSR writer advised:

The subject has a history of impulsivity, anger issues, substance use and difficulty considering long term consequences. She [the psychologist] reported that he demonstrated pro-criminal thinking at the time and often justified his actions. She recommended on going [sic] support for mood management and substance use which she related to [sic] often go hand in hand in his case.

[22] During his time in custody, Mr. Gingras has actively participated in Indigenous service programs provided by the ATRC including The Eastern Door, a program designed to engage and motivate Indigenous men to undertake rehabilitation, and Biidaaban Kwewok and Biidaaban Niniwok Beginnings for Indigenous Women and Men, an educational multi-circle life skills program. Ms. Cindy-Lou Makkonen, the Indigenous Programs Supervisor for the ATRC, stated that Mr. Gingras was

...a willing and active member of all the programs offered. He consistently volunteers to attend any Indigenous program or ceremony offered by herself or her staff. She recalled him to be respectful of staff as well as the medicines provided.

[23] Ultimately, the PSR writer opined that

[i]t appears that Mr. Gingras has also developed a substance use problem that has plagued all aspects of his life. His substance use has impacted his ability to maintain employment, enjoy familial relationships, and his freedom. The subject’s criminal record is directly correlated to his substance use. If court ordered, he is prepared to participate in a treatment program or attend recommended program. He admits that what he “has been doing hasn’t been working” for him and sees a need for change.

He has no concrete plans for his release but is prepared to seek employment, he expressed concern that a residential treatment program could potentially interfere with his potential employment. The subject has demonstrated a willingness and the ability to be a contributing member to society [sic] but historically his addiction eventually interferes. When confronted about this pattern, the subject did consider that perhaps it could be beneficial to prioritize recovery over employment.

Should the subject fail to address his addiction issues and its root cause, it is likely that he will reinvolve in the criminal justice system.

Gladue Report

[24] The Gladue Report writer indicated that Mr. Gingras is a registered member of the Batchewana First Nation as both his parents were members of that First Nation. His culture has always been a part of his life.

[25] Mr. Gingras grew up in poverty, with relatively little material benefits to be had. His father worked on and off, but sometimes the family wound up on welfare. Mr. Gingras’ life has been marred by alcohol abuse, having seen his father engage in that behaviour and having done so himself. Mr. Gingras’ relatives attended residential school and there was a suggestion that Mr. Gingras suffered from intergenerational trauma as a result.

[26] To his credit, the accused worked from 1992 to 2009, and he enjoys working with his hands. He also enjoys fishing, hunting and life in the bush. He finds life in the bush to be peaceful and that it connects him with his culture.

[27] The accused understands that, when he drinks, he can be violent.

[28] Mr. Mark McCoy, Chief of the Batchewana First Nation and former Native Inmate Liaison Officer at the ATRC, indicates that he has known Mr. Gingras for approximately 13 years and that Mr. Gingras is a respectful person who is easy to work with. He participates in Indigenous programming. However, Mr. McCoy indicates that Mr. Gingras is a different person when he drinks.

[29] As for the offence before the court, the Gladue Report writer stated:

According to a document provided to Aboriginal Legal Services, Joseph [Gingras] plead guilty to aggravated assault and arson causing damage to property on July 10, 2023. Joseph has expressed remorse for his actions.

It wasn’t anything intentional. I wasn’t trying to burn him. It was a stupid friggen accident. The gas spilt and the shit went up. And if there’s anything I am guilty of, it’s being drunk and being clumsy and being an idiot. I should not have touched the gas at the time. That’s the only thing I am guilty of. I being [sic] in here, being remorseful for what I did. You know the stuff that happened, because of my court case and the risks why I am in here. I had a long time to reflect on my drinking. As for getting out, I have to reflect for another amount of time after being here all this time. I just want to get on with my life. That’s what I want.

[30] The Gladue Report writer suggested that Mr. Gingras attend the Indigenous Friendship Centre for drug and alcohol relapse prevention, anger management programming and mental health counselling. The Gladue Report writer also suggested that Mr. Gingras work with Aboriginal Legal Services, Sault Ste. Marie catchment area, to locate additional resources and supports.

Forensic Psychiatric Assessment

[31] Dr. Maryana Kravetsenyuk prepared a forensic psychiatric assessment on behalf of Mr. Gingras.

[32] In her report, the psychiatrist reviewed the Agreed Statement of Fact. The doctor also added that the accused’s employers universally indicated to Mr. Gingras that they were concerned about his alcohol consumption. In fact, alcohol abuse caused the offender’s last employer to terminate the employment relationship in 2019.

[33] Mr. Gingras denied suicidal ideations or any intention of self-harm to the doctor.

[34] Dr. Kraventsenyuk stated that Mr. Gingras had insight into his substance abuse problems:

Mr. Gingras has not yet received any rehabilitation treatment while in the community. However, while in custody he attended Algoma Treatment Centre on two occasions, in 2006 and approximately 2018. He reported he did not complete the program as he was “not getting along with the teacher.” This was in keeping with his difficulties with authority figures.

Mr. Gingras has made an effort to stop his alcohol use, quitting for periods of four to twelve months, and reducing his consumption. He did not formally enroll in any treatment program in the community as he thought that he could do it on his own.

He recognized he must cease all alcohol and drug use. He candidly reported he encounters legal problems every time he has been drinking. He identified that being a father and having supportive children has been a positive force for him in his journey to sobriety. His children have asked him to quit drinking, and he identified that he has stopped drinking for them on a few occasions.

[35] As regards the index offence, Dr. Kravetsenyuk reported that Mr. Gingras offered the following explanation:

…So, you know, so I think I tried to a more of a scare tactic with the gasoline than anything. I never set anybody on fire but more to just see how stupid it sounds about both of us committing suicide. ‘So, if you want to do it, I’ll join you’ [laughter]. You know so it was more of a stupid, it’s a ridiculous kind of thing and uh yeah, kind of a scare tactic but drunk, clumsy, all that; I guess I yeah, messed around with the gas too long and yeah, eventually it kind of lit up and yeah set the house on fire. I think I dropped the gas can I believe, and it hit the floor and that’s all I remember of it, the fire started, and it went tall over the place.

[36] Dr. Kravetsenyuk then wrote,

Mr. Gingras reported overwhelming remorse for what happened. He “didn’t expect that anybody’d get hurt. I mean yeah, I think it just being intoxicated as I was probably not realizing how dangerous the situation actually was with that gallon of gas that I had. You know just the two gallon can and looking back on it now, realizing how stupid it was with open flame in a confined space with all the fumes kicking around and being as intoxicated and as clumsy as I was. I shouldn’t have been messing with the gas to begin with. So, I’m just happy that everybody lived, and nobody died, that’s a good thing.”

[37] Based on her review of the evidence and interviews with Mr. Gingras, Dr. Kraventsenyuk diagnosed Mr. Gingras with

Alcohol Use Disorder, severe, currently in early remission, in a controlled environment, Stimulant Use Disorder, severe, currently in early remission, in a controlled environment and Cannabis Use Disorder, severe, currently in early remission, in a controlled environment.

[38] Dr. Kravetsenyuk then opined that the following recommendations were appropriate for Mr. Gingras’ rehabilitation:

• Mr. Gingras should access and complete a comprehensive addiction treatment program that utilizes cognitive-behavioural and psycho-educational approaches during a period of incarceration. This program should incorporate culturally sensitive trauma-informed care, anger management, and emotional regulation programming that are deeply grounded in traditional Indigenous practices. From the file information that was made available to the undersigned, the multimodal rehabilitative program at the Algoma Treatment and Remand Centre, namely “Life without Violence” curriculum would encompass the necessary components of evidence-based formal and structured treatment that Mr. Gingras requires; in order to mitigate the risk relapse and reoffence. It would be important to assure that Mr. Gingras’ personal supports such as close family members, are engaged and involved in his recovery care. Thus, it would be of a great benefit if Mr. Gingras would be placed in Sault Ste. Marie to enhance rehabilitation gains made in the treatment.
• Mr. Gingras should abstain from any alcohol or other recreational substances.
• Mr. Gingras should receive regular psychological services with respect to his history of intergenerational trauma and abuse. Referral to local peer support agencies would offer structured recovery-oriented activities. It can also provide much needed psychosocial support.
• Mr. Gingras should access culturally informed programs founded on the Indigenous culture and spirituality. Further, consideration should be given to his spiritual and cultural needs to increase his resiliency.

Other Materials Filed

[39] The defence filed extensive materials that included information about various rehabilitation programs including:

1. Life Without Violence, a rehabilitation program at the ATRC available to inmates serving a further 6 to 9 months at the ATRC;
2. N’Mninoyaa Mental Wellness and Manchnaadizig Services; and
3. The Sault Area Hospital Addictions Treatment Clinic.

[40] A certificate of completion for Change is a Choice – Anger Management Program was filed on Mr. Gingras’ behalf, as was a letter of support from the mother of his three daughters.

[41] Lockdown records from the ATRC were filed which indicated that, during Mr. Gingras’ 1222 days in custody up to and including the date of the sentencing hearing [1], Mr. Gingras spent numerous days in lockdown. Mr. Gingras also filed an affidavit wherein he deposed that he spent additional time in lockdown - not captured by official records - such that his time in lockdown was over 220 days. It should be noted that Mr. Gingras was on bail for some time leading up to his plea.

Mr. Gingras’ Statement to the Court

[42] Mr. Gingras indicated remorse for his actions. He said that he is sorry for what happened and stated that he was not trying to hurt anyone. He was simply trying to help a friend.

Position of the Parties

[43] The Crown submits that a sentence of 8 years is appropriate in the circumstances given the severity of the crime and its consequences. Factoring in time served, this would amount to a further three years in custody. Such a sentence is necessary because of the twin needs for denunciation and deterrence.

[44] Mr. Gingras’ counsel submits that the needs for denunciation and deterrence can be met via a five-year sentence, which amounts to time served. Such a sentence factors in the Crown’s concerns as well as the Gladue principles and gives weight to the efforts at rehabilitation that Mr. Gingras has undertaken. Further, the sentence reflects the fact that Mr. Gingras’ time in custody has been towards the more difficult end of the spectrum in so far as he has been through a number of lockdowns, and he contracted COVID in 2022 while in custody.

Analysis

The Law

[45] Sections 718, 718.1 and 718.2 of the Criminal Code of Canada govern the principles to be applied when sentencing any accused:

Purpose

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.

Fundamental principle

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Other sentencing principles

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[46] As an Indigenous person, Mr. Gingras’ background must be considered in the sentencing process: R. v. Gladue, [1999] 1 S.C.R. 688; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433. The jurisprudence demands that a different analytical construct be engaged when sentencing Indigenous offenders. The judge sentencing an Indigenous offender must consider:

(a) The unique systemic or background factors which may have brought the offender before the courts; and

(b) Any culturally-specific sentencing processes or programming available to the offender that may address those concerns: see Ipeelee.

[47] The Gladue analytical construct can lead to greater weight being placed upon rehabilitation and restorative justice than would be the case for non-Indigenous offenders, even in cases involving violence: R. v. Jacko (2010), 2010 ONCA 452, 256 C.C.C. (3d) 113 (Ont. C.A.). Despite that reality, however, the Court of Appeal for Ontario in R. v. Macintyre-Syrette, 2018 ONCA 706 reaffirmed prior jurisprudence that made clear that deterrence and denunciation can remain primary sentencing principles for Indigenous offenders:

However, as LaForme J.A. noted in R. v. Kakekagamick (2006), 81 O.R. (3d) 664, leave to appeal refused [2007] S.C.C.A. No. 34, at para. 42, there is no general rule that in sentencing an Aboriginal offender the court must give the most weight to the principle of restorative justice, as compared to other legitimate principles of sentencing. The relative weight to be assigned to the goals of restorative justice as against the principles of denunciation or deterrence will be connected to the severity of the offence: Wells, at para. 39. The principles of denunciation and deterrence may predominate where the offence is sufficiently serious: Kakekagamick, at para. 42.

The Sentencing Range

[48] Mr. Gingras’ counsel filed R. v. Tourville, 2011 ONSC 1677 (Ont. S.C.) wherein Code J. dealt with an offender who was found guilty of aggravated assault. At paras. 27 to 31 of his sentencing reasons, Code J. described three tranches of sentences that arose from the jurisprudence. The first tranche, or low-end cases, were instances where exceptional circumstances demanded that shorter sentences be imposed, including suspended sentences. The mid-range of cases caused the courts to impose upper-reformatory sentences. The mid-range cases generally involved first offenders and some element of consent fights where the accused resorted to excessive force. Finally, Code J. described the high-end of the range as imposing sentences of four to six years imprisonment where the cases “generally involve recidivists, with serious prior criminal records, or they involve “unprovoked” or “premediated” assaults with no suggestion of any elements of consent or self-defence” (at para. 30).

[49] Counsel provided a number of cases that appear to fit within the Tourville range. As regards the middle of the range, in R. v. Chickacho, 2008 ONCA 488, the Court of Appeal for Ontario upheld an 18-month sentence for an Indigenous offender suffering from an alcohol addiction who smashed a beer bottle over a victim’s head during a drunken fight, leaving the victim with facial scarring and other injuries that were described as “severe, lift-threatening and permanently disfiguring”.

[50] In R. v. Pearce, 2021 ONCA 239, the Court of Appeal for Ontario noted that Tourville described a range of sentences for aggravated assault [2]. In Pearce, the court dealt with an Indigenous offender who stabbed a fellow drug dealer leaving permanent injuries. The accused was an addict with a lengthy record. A three-and-a-half-year sentence was imposed on appeal on the basis of parity with the sentence imposed upon a co-accused. I am uncertain as to whether the Court of Appeal otherwise thought the five-year sentence imposed by the judge at first instance was appropriate.

[51] At the high end of the range, upper single-digit penitentiary sentences were imposed in cases like R. v. Jocko, et al, 2022 ONSC 2581 and R. v. Corhamzic, et al, 2023 ONSC 2766. These high-end case were described as “premeditated”, racially motivated, and/or “horrific”.

[52] Aggravated assault within the context of arson cases has also been considered by the courts. In R. v. Leslie, 2018 ONSC 41, A.J. O’Marra J. sentenced an offender to a global sentence of five years for aggravated assault, arson with disregard to human life and arson causing damage to property. In that case, the schizophrenic offender started a rooming house fire which caused a sprinkler system to be set off, thereby ruining personal items. The accused had a significant and related record containing 58 entries and a penitentiary sentence. The accused also stabbed the victim during the event. The victim was hospitalized with multiple wounds to the neck, back, face and head. He required surgery for a compound depressed skull fracture and the implant of a metal mesh in his head. The victim suffered permanent injury.

[53] In R. v. A.A. 2020 ONSC 3802, Corrick J. found the accused guilty after trial of a number of offences as against his intimate partner, including aggravated assault and arson endangering property. At paras. 13 and 14 of the sentencing reasons, the judge described the arson:

On the morning of November 1, 2017, A.A. hid in the stairwell next to Y.L.'s apartment. When Y.L. returned home from taking her youngest child to daycare, A.A. approached her and followed her into the apartment. He sprinkled a liquid that smelled like gasoline on Y.L.'s hair and ignited a hand-held torch (the aggravated assault charge). Fearing that she would be burned, Y.L. fled the apartment and took refuge in an apartment down the hall and called the police.

Once Y.L. was escorted by the police out of the building, she saw smoke and flames coming from her apartment. I found that A.A. intentionally set four independent fires in different areas of the apartment. The interior of the apartment and its contents were destroyed (the arson charges).

[54] The sentencing judge in A.A. relied upon Ricchetti J.’s reasoning in R. v. Bevacqua 2014 ONSC 6279 at paras 47 and 49 to state that deterrence and denunciation must be the paramount consideration when sentencing for arson. The sentencing judge in A.A. therefore imposed a global sentence of eight years, with four years being attributed to the arson counts, two years to the aggravated assault count, and two years to other charges arising from other facts in the same case. Therefore, the defence submits that the range of sentence imposed for aggravated assaults and arson endanger life ranges from 3 to 5 years, with arson damaging property receiving lower sentences.

[55] By way of contrast, the Crown relies upon R. v. Kupec, 2019 ONCA 851 to suggest that an eight-year sentence is appropriate in the circumstances of the case before me. As can be gleaned from trial citations located at 2015 ONSC 6766 and 2015 ONSC 7096, Kupec dealt with a situation where, similar to the matter before this court, the offender and other individuals were “partying” at a house using a variety of substances. The party got out of control and a physical dispute ensued. Subsequently, the accused returned to the house in question with a gas can. The evidence became unclear at this point save for the fact that the accused was the aggressor in the situation, poured gasoline in or around the home, and the home erupted in flames. The victim was burned and the house suffered considerable damage. The accused was found guilty of several offences including aggravated assault, arson causing bodily harm and arson causing property damage. The accused appealed his sentence, and at paragraph 2, the Court of Appeal concluded:

Given the appellant's lengthy record, the circumstances of the offences and their catastrophic impact the ten-year two-month sentence was entirely fit. It was not an error to impose consecutive sentences for arson causing bodily harm and arson causing property damage as they involve different elements.

[56] Of note, it appears that the trial judge in Kupec did not find that the lighting of the match, and the concomitant burning of the victim, were intentional. Nonetheless, the fact set described in Kupec appear to involve a heightened level of aggression by the accused but little else can be gleaned from the Court of Appeal’s decision given its brevity. The sentencing reasons of the judge at first instance were not filed, nor have I been able to locate same.

Application to This Case

Synthesis of Case Law Regarding the Range of Sentence

[57] It appears that the sentences imposed for aggravated assault vary greatly depending upon the facts of a given case. Nonetheless, the range described in Tourville appears roughly consistent with the sentence imposed in Pearce and in other cases. While the sentence imposed in Kupec appears to be beyond the sentences suggested in Tourville, it occurs to me that the facts in Kupec are particularly egregious given both the heightened negative animus demonstrated by the accused, the horrific consequences that were visited upon the victim and the offender’s possible lack of remorse. [3] While the trial judge accepted that the offender in Kupec did not mean to light the fire, the trial judge’s findings suggest that the tenor of the situation was driven by Mr. Kupec’s aggression.

[58] When I examine the case before me, it is clear to me that the negative animus that apparently existed in Kupec is not found in this case. Indeed, it was accepted by all parties that Mr. Gingras harboured no negative animus towards the victim. The accused poured gas on himself in order to dissuade the victim from committing suicide. This is not like Kupec where the use of gas appeared to be a one-sided attempt at either intimidation or causing pain.

[59] Accordingly, the absence of hostile intention and the presence of some remorse take this case below the sentence imposed in Kupec.

Remorse

[60] A plea of guilt, and the remorse typically associated therewith, are often important factors in sentencing. Mr. Gingras pleaded guilty which is some indication of remorse. Further, Mr. Gingras indicated his remorse to a number of people, including this court, and I accept that he is remorseful at some level.

[61] Mr. Gingras’ degree of remorse, however, is uncertain. It appears from the psychiatrist’s report that Mr. Boissoneau was remorseful about what had happened. The doctor described this remorse as being “overwhelming”. However, it is unclear to me that Mr. Gingras was remorseful about the criminal conduct per se. Mr. Gingras’ recitation of events to the psychiatrist come close to a suggestion that the incident was merely an accident, which could obviate a guilty plea. Mr. Gingras made similar representations to the Gladue Report writer. I also note that the psychological report generated in 2006 indicated that Mr. Gingras has a tendency towards justification when describing his criminal antecedents. I canvassed this concern with defence counsel and Mr. Gingras. Mr. Gingras pleaded guilty and he accepts responsibility for his conduct. He also accepts the facts as found in the Agreed Statement of Fact. Said facts support the findings of guilt.

[62] Accordingly, I find that Mr. Gingras’ remorse does not appear to be overwhelming. Rather, Mr. Gingras seems to feel badly about the effect that the offence had on the victims as opposed to having remorse about engaging in the criminal behaviour itself.

[63] In fairness to Mr. Gingras, he can only have remorse for those things for which he was found guilty. He was not found guilty of trying to kill Mr. Boissoneau, or even attempting to harm Mr. Boissoneau. Rather, the accepted facts are that Mr. Gingras poured gas on himself and Mr. Boissoneau in an attempt to dissuade the latter from suicidal ideations. Mr. Gingras then started a fire in some way. So, while Mr. Gingras’ remorse does not appear to be overwhelming, neither can it be said that Mr. Gingras committed a crime of nefarious intent such that he ought to feel a level of remorse commensurate with such an intention.

The Effect of Time Served

[64] In written argument, the defence argued that the accused’s 324 days of house arrest bail is a mitigating factor as contemplated in R. v. Downes at para. 37. Also Mr. Gingras argued that the number of lockdowns and the difficult conditions in custody suggest that he is eligible for an enhanced Duncan credit: see R. v. Duncan, 2016 ONCA 764 at para. 3.

[65] This is not an appropriate case for bail-based mitigation or enhanced credit as a result of lockdowns.

[66] First, while Mr. Gingras contracted COVID in 2022 while in custody, I have no evidence to suggest that this illness had a major impact upon Mr. Gingras’ health. Indeed, by 2022, the COVID pandemic was on the wane and the impact of the illness was considerably more attenuated than it was in 2020 or 2021.

[67] Second, Mr. Gingras was found guilty of criminal offences committed while in pre-trial custody. This by itself suggests that Mr. Gingras is not eligible for enhanced Duncan or Downes credit. Further, I note that Mr. Gingras was able to complete programming while in pre-trial custody so it cannot be said that the number of lockdowns impeded his ability to access those systems in place that are designed to assist his rehabilitation.

[68] Counsel wisely appeared to abandon this more strenuous position regarding the effect of pretrial custody at the sentencing hearing. This was a good choice. For the reasons stated, there will be no Duncan credit, or Downes mitigation in this case.

The Gladue Analysis and its Impact

[69] Defence counsel rightly submitted that, even when considering the Gladue factors, Mr. Gingras’ crime requires incarceration. Rather, the defence submitted that Mr. Gingras’ Indigenous background, coupled with the programming available, demand that rehabilitation and restoration ought to be given due consideration as per Gladue. The defence suggests that the facts of this case do not require a sentence beyond five years to satisfy the needs of deterrence and denunciation.

[70] While I acknowledge counsel’s able submissions, I also note the Court of Appeal’s statement in Macintyre-Syrette (adopting itself from Kakekagamick), that “[t]he relative weight to be assigned to the goals of restorative justice as against the principles of denunciation or deterrence will be connected to the severity of the offence: Wells, at para. 39. The principles of denunciation and deterrence may predominate where the offence is sufficiently serious”.

[71] Mr. Gingras’ position fails to adequately address the law as synthesized in Macintyre-Syrette in that it does not give sufficient weight to the main elements of this case and their import upon the sentencing analysis. Specifically, I consider:

1. The tragic consequences suffered by Mr. Boissoneau and Mr. Johnson;
2. The inherently risky conduct undertaken by Mr. Gingras;
3. Mr. Gingras’ record; and
4. Mr. Gingras’ likelihood of rehabilitation.

[72] First, Mr. Boissoneau had his life inexorably altered by Mr. Gingras’ poor decision-making. He suffered financially and continues to suffer emotionally and physically. He likely will so suffer for the remainder of his life. The effects on Mr. Boissoneau’s life cannot be overstated. For his part, Mr. Johnson’s house burned down. Unless one is so well-heeled that the loss of a residence is of minimal impact – and there is no evidence to suggest that that is the case here – the loss of one’s domicile must be one of the most serious property offences imaginable. Indeed, if “one’s home is one’s castle”, then the loss of said home is a very serious offence.

[73] Given the facts described in the preceding paragraph, it is apparent to me that the impact of the offences are at the very high end of the spectrum which demands that deterrence and denunciation be given considerable weight.

[74] Second, exacerbating the need for deterrence and denunciation is the inherently dangerous and risky activity undertaken by Mr. Gingras. The risks associated with this case are akin to an accused person recklessly driving while tremendously intoxicated and causing lifelong injuries to others. While the driver does not intend to cause damage and pain, the risks of their conduct are so dangerous that denunciation and deterrence must be given overriding weight. Indeed, I am surprised that no one was killed by Mr. Gingras.

[75] Third, Mr. Gingras’ record is related in so far as it has a number of assault and assault police officer entries. However, many of these entries are quite dated and Mr. Gingras’ longest sentence was 14 months incarceration. Therefore, as Code J. described in Tourville, Mr. Gingras is a recidivist, but he is not someone with a multiple page record with lengthy entries. He is an addict who gets into trouble when he cannot remain sober.

[76] Fourth, Mr. Gingras has, in the past, attempted to rehabilitate himself. These efforts have generally failed. Thus, this is not a case where an offender has turned the corner and has successfully undertaken several steps to rehabilitate. Rather, Mr. Gingras’ journey towards improving his lot in life is in its infancy. Mr. Gingras is to be given credit for attending rehabilitation programming while in custody. It is especially significant that much of this programming is culturally-specific because it is more likely to redress the effects of Mr. Gingras’ upbringing/background and the criminality that appears to have flowed therefrom. Nonetheless, Mr. Gingras’ statements to the PSR writer suggest that Mr. Gingras is more concerned with employment than with developing a lasting sobriety. Although this does not entirely negate the generally positive tone of the materials describing Mr. Gingras and his efforts to improve his life, it does cause me some concern about his commitment to sobriety. Taking everything into account, while I am not satisfied that Mr. Gingras’ prospects for rehabilitation are especially heightened given his seeming lack of focus on sobriety, I have some hope that Mr. Gingras will follow through on his aspirations given his participation in culturally appropriate programs and the continued availability of same.

[77] Thus, the consequences suffered by the victims, the riskiness of Mr. Gingras’ behaviour, and Mr. Gingras’ criminal record place the aggravated assault at the mid- to high-end of the Tourville sentencing range while the evidence shows that the value to be placed on Mr. Gingras’ possible rehabilitation is mitigated to a degree. The inherently risky nature of the arson (at night with intoxicated people in a residence) also demands that denunciation and deterrence are the paramount considerations in this sentence.

Conclusion

[78] Therefore, I note the following aggravating features of the case:

1. The aggravated assault charge is very dangerous because Mr. Boissoneau could easily have been killed;
2. The arson charge causing damage to property is an especially dangerous variety of that offence given the fact that a residence was burned down at night when a number of intoxicated people were located therein. It is obvious that these people could easily have been killed by the fire. Further, it is clear that Mr. Boissoneau was in fact burned severely in the interaction which highlights the possible dangers of Mr. Gingras’ conduct; and
3. Mr. Gingras has a related and meaningful criminal record, although I would not describe it as overly lengthy. I also note that he has never served a penitentiary sentence.

[79] Given these three points, the aggravated assault is at the mid- to upper-end of the Tourville range while the arson to property is at the most serious end of the scale.

[80] The mitigating feature of the case is that Mr. Gingras has shown some remorse for the situation.

[81] I also note that the Gladue principles must be applied. I note the following:

1. Mr. Gingras has suffered from intergenerational trauma and its consequences;
2. Mr. Gingras has attempted to avail himself of culturally-sensitive programing to address these concerns;
3. Mr. Gingras recognizes that he needs to remain sober, but some of his statements suggest that he needs to commit to sobriety in a more meaningful fashion;
4. Given the jurisprudence as described in Macintyre-Syrette, the principles of denunciation and deterrence must predominate even when I engage the Gladue factors; and
5. This predominance is especially apposite given my moderately guarded view of Mr. Gingras’ prospects for rehabilitation.

[82] Given the foregoing, a global sentence of six-and-a-half years is appropriate in circumstances. This sentence is consistent with the range outlined in Tourville and with the sentences imposed in Pearce, A.A. and the remainder of the jurisprudence. It is meaningfully lower than the sentence imposed in Kupec because the facts in Kupec appear to be more blameworthy given Mr. Kupec’s aggression and apparent lack of remorse. This sentence also reflects the fact that denunciation and deterrence remain the driving principles of sentencing in this case, while providing adequate weight to the Gladue factors and the mitigating features described in these reasons.

[83] The sentence will be broken down as follows:

1. Arson causing property damage: 5 years time served.
2. Aggravated assault: 18 months consecutive to the arson count, to be endorsed as the equivalent of 3 months time served, plus a further 15 months in custody. I would ask that Mr. Gingras participate in the “Life Without Violence” program while incarcerated at the ATRC.

[84] This period of incarceration will be followed by a period of three years of probation with the following terms:

1. Report as directed;
2. Take such counselling as suggested by probation, with a special focus on the culturally appropriate counselling suggested by Dr. Kravetsenyuk, the Gladue Report writer, and the PSR writer;
3. To have no contacted with Mr. Thomas Boissoneau, Mr. Darrell Johnson, and Ms. Michelle Neveau;
4. To possess no weapons as defined by the Criminal Code except in furtherance of your culture of traditional hunting.

[85] There will be a s. 743 order in the names of Mr. Boissoneau, Mr. Johnson, and Ms. Neveau except with written revocable consent.

[86] Mr. Gingras will provide a sample of his DNA to authorities within one day. Mr. Gingras will forfeit the lighter seized.

[87] Mr. Gingras will be subject to a s. 109 order for life, with the exception being that he can have weapons to pursue hunting as per s. 113.

[88] I would like to thank counsel for thorough and insightful submissions.

Varpio J. Released: January 31, 2024

[1] When enhanced as per R. v. Somers (2014), 2014 SCC 26, 308 C.C.C. (3d) 471 (S.C.C.) at 1.5:1, this amounts to 1,833 days or just over 5 years.

[2] See para. 11. However, the Court of Appeal did not comment on whether it agreed with the Tourville range: see para. 16. I note, however, that the Court of Appeal did cite the Tourville range with apparent approval in R. v. Pomanti, 2017 ONCA 48 at para. 35.

[3] It was never made clear in the reasons filed what those horrific consequences were. Equally, sentencing occurred after trial, so there is no evidence of remorse via guilty plea or through other indicia.