Reasons for Sentence

Court File No.: CR-22-029 (Napanee)
Date: 2025-02-21
Ontario Superior Court of Justice
Between:
His Majesty the King
and
Douglas Bowley, Defendant

Tim Kavanagh, for the Crown
James Lisowski, for the Defendant
Heard (Sentencing): 16 January 2024, at Napanee

Reasons for Sentence
Graeme Mew

Introduction

[1] Douglas Bowley, on 21 March 2024, I found you guilty of three criminal offences, namely:

a. Arson arising from the destruction by fire of a house at 1602 Marble Lake Road in Cloyne, on 20 January 2022, contrary to s. 434 of the Criminal Code;

b. Between 13 January 2022 and 20 January 2022, threatening to cause bodily harm to Albena Stoykova, contrary to s. 264.1(1)(a) of the Criminal Code; and

c. Between 13 January 2022 and 20 January 2022, threatening to burn the residence of Albena Stoykova located at 1602 Marble Lake Road, Cloyne, contrary to s. 264.1(1)(a) of the Criminal Code.

[2] The house on Marble Lake Road in Cloyne, which was the subject of the arson charge and one of the uttering threats charges, was owned by Albena Stoykova and her husband, Michael McLellan. At the time of the fire, you had rented and lived in the house for nearly four years. Shortly before the fire, you had been told by Ms. Stoykova and Mr. McLellan that the house was going to be sold, and that you would need to find somewhere else to live. The threats and the eventual destruction of the house by arson were the apparent responses by you to the news that the house was going to be sold and that you would have to move.

[3] The text messages which you sent to Ms. Stoykova were profane, insulting and intimidating. They were laden with expletives and threats. Threats of physical harm, and, ultimately, threats that the house would be burnt to the ground.

[4] On 20 January 2022, two hours after Ms. Stoykova had sent you a text advising you that the house was going to be listed for sale the next day and that the agent would try to keep showings grouped together, but that you would be given a 24 hour notice before they needed to come in, Mr. McLellan received a call from a neighbour to the Cloyne property telling him that the house was on fire, and that you were at the home of some other neighbours.

[5] After setting the fire, you had gone to the home of Troy and Janeane Hanes, apparently intoxicated, saying, “they gave me 24 hours”. In video clips admitted into evidence, you could be heard saying, “house is gone”, “don’t fuck with me – I’ll play the ace of spades”, and laughing in response to a comment by Mr. Hanes that “the demon could come out any time and it did”.

[6] Arson is an indictable offence, punishable by up to fourteen years’ imprisonment. The uttering threats charges each carry a maximum sentence of five years in prison. The court is also required to impose a weapons prohibition order for ten years and has discretion to make an order requiring the provision by you of a DNA sample.

[7] The Crown submits that an appropriate sentence in all of the circumstances is a term of imprisonment of eighteen months. The defence argues for a conditional sentence, with a substantial period of house arrest, followed by a term of probation of three years with conditions that you continue to address your mental health and alcohol issues.

Circumstances of the Defendant

[8] At the conclusion of the trial, there was a discussion between counsel and the court about Mr. Bowley’s mental health. His counsel at trial, Ruth Roberts, who, sadly, has since passed away, as well as Crown counsel, agreed that it would be appropriate for the court to be provided with a full psychiatric assessment of Mr. Bowley. This was undertaken by Dr. Amanjot Sandhu, a forensic psychiatrist at the Royal Ottawa Mental Health Centre and University of Ottawa, who provided the court with a report in September 2024. Dr. Sandhu’s assessment revealed that Mr. Bowley was experiencing a substance-induced bipolar and other related disorder, alcohol use disorder, and cannabis use disorder at the time of the offences. However, Dr. Sandhu also concluded that, on a balance of probabilities, Mr. Bowley was able to appreciate and know the wrongfulness of his actions between 13 January 2022 and 20 January 2022.

[9] Mr. Bowley is currently 60 years old. He was born in Hamilton and raised by his mother and father along with a younger sister, Sherry-Lynn. Mr. Bowley’s mother had cancer during his childhood. She died when she was just 26 years old and Mr. Bowley was nine. When he was fourteen, Mr. Bowley’s father remarried. The marriage was not happy. Mr. Bowley dropped out of high school in grade ten and lived on the streets for a while. In his early twenties, he worked for a high pressure vacuum company with his father. He then moved to Calgary and worked several jobs, including as a paint sprayer. At some point he completed a one-year heavy equipment technician course at the Southern Alberta Institute of Technology. When he was 24, he entered into a relationship with a woman called Christine, with whom he had three children. In his early thirties, Mr. Bowley and his family moved back to Hamilton when he was offered a job by his father to work as a sheet metal mechanic. It was at that time that Mr. Bowley started to have mental health issues. It is reported that he became paranoid, and at one point had a psychiatric admission at St. Joseph’s Health Care in Hamilton.

[10] After being discharged from St. Joseph’s, Mr. Bowley began to self medicate with alcohol. He and Christine separated. Although he returned to work for a while, the combination of substance abuse and panic attacks resulted in Mr. Bowley ultimately being terminated from his employment. He then moved back to Calgary for about three years. He eventually began a romantic relationship with an exchange student, with whom he moved to British Columbia. They got married and Mr. Bowley worked odd jobs as a roofer. However, after his wife obtained her Canadian citizenship, she left Mr. Bowley. He moved back to Ontario in 2008 and for a while resumed working in sheet metal. But in 2009, as a result of continuing mental health issues, Mr. Bowley started to receive financial assistance through the Ontario Disability Support Program (ODSP). He last worked about ten years ago, as a cook on a part time basis.

[11] Mr. Bowley currently sees a psychiatrist at Peterborough Regional Health Centre and, in recent months, he has been seeing an addiction counsellor for alcohol misuse. He has also received assistance biweekly from a counsellor at the Canadian Mental Health Association.

[12] At the time of the offences, Mr. Bowley was, by his own admission, consuming “quite a bit of beer and smoking weed”.

[13] A clinical impression noted by Dr. Uhoegbu, a psychiatrist at the Peterborough Regional Health Centre, on 22 April 2024 was alcohol use disorder, substance-induced psychotic disorder, and alcohol-induced mood and anxiety disorder.

[14] The Crown concedes that, for all intents and purposes, Mr. Bowley has no relevant criminal record.

[15] He has completed an anger management programme through the Canadian Mental Health Association.

[16] Mr. Bowley, by all accounts, the pandemic was a challenging time for you. You were living alone in a remote location. You did not have ready access to your regular medication. The offences occurred in January of 2022, less than two years after the onset of the pandemic.

[17] At the present time, you are renting a room in a unit that you share with a friend in a small community near Madoc. You have been on bail since January 2022, on conditions which have required you to reside with one of two sureties, and to remain at such residence except when in the presence of a surety for medical emergencies, court and lawyer attendances, or travelling directly by public transport from the residence of one surety to the other.

The Victims

[18] Arson is not a victimless crime. You destroyed a home to which Mr. McLellan and Ms. Stoykova had devoted time and money – a “labour of love” to quote Ms. Stoykova, repairing and restoring “that little old house”. Ms. Stoykova described how on the day when you set it on fire, they stood outside in the cold watching the flames eating it, and all she could think about was her bleeding fingers when she was nailing hardwood floors down by hand on her knees.

[19] It took fourteen months after the fire for Ms. Stoykova and Mr. McLellan to persuade the insurance company that they were entitled to indemnity under their fire insurance policy, which contained an exclusion that may have resulted in them being denied coverage altogether.

[20] Mr. McLellan’s plans to retire were put on hold, they still had a mortgage to pay.

[21] And to add insult to injury, they had in the back of their minds the threats that you had made.

Aggravating Factors

[22] In R. v. White, 2021 ONSC 2476, para 13, Pomerance J. said this about the offence of arson:

The crime in this case is extremely serious. Fire is an erratic beast. Once set, it will often exceed and/or defy the wishes of its creator. Fire can spread, it can reignite, it can consume property, and it can destroy life. This is so, whether or not these consequences were intended or foreseen. The offence of arson poses a unique danger to persons and property.

[23] Mr. Bowley, you deliberately set a fire which burnt the house you had lived in to the ground. As the fire raged, propane canisters on the premises could be heard exploding. Local volunteer firefighters placed themselves in jeopardy controlling and extinguishing the fire. It was by sheer good fortune that the consequences of your actions were not more serious, both in terms of injury to persons and property.

[24] While not a mitigating factor, you destroyed not only the property of Mr. McLellan and Ms. Stoykova, but also all of your own possessions, including a significant collection of vinyl records.

[25] Your threats were vulgar, insulting and intimidating. Your behaviour after the fire was contemptible. You boasted to Mr. and Ms. Hanes that “the house is gone”, that you “played the ace of spades”.

Mitigating Factors

[26] At the end of your sentencing hearing, you expressed in clear and unequivocal language your acceptance of responsibility and your regret for the harm that you have done. You had been going through a stressful period of your life before you heard that you would need to leave your home of over four years.

[27] You have had well documented mental health and addiction challenges which, it would appear, you are presently working on. For the past three years, you have been subject to strict bail conditions without any incidents of non-compliance.

Sentencing Principles

[28] The general principles of sentencing are set out in s. 718 of the Criminal Code. Judges passing sentence are required by law to impose a just sanction that has one or more of the following six objectives:

a. To denounce unlawful conduct;
b. To deter the offender and others from committing offences;
c. To separate offenders from society when necessary;
d. To assist in the rehabilitation of offenders;
e. To provide reparation for harm done to victims or to the community; and
f. To promote a sense of responsibility in offenders and acknowledge harm done to victims and to the community.

[29] Furthermore, the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The sentence must also be consistent with those imposed on similar offenders, for similar offences, committed in similar circumstances.

Discussion

[30] A review of the cases which counsel referred me to shows that there is a wide range of possible dispositions, depending on the particular circumstances of a given case. The outcomes in those comparable cases range from a suspended sentence and probation to a term of imprisonment of three years.

[31] In R. v. Mirzakhalili, 2009 ONCA 905, the respondents set fire to their business in order to get an insurance recovery at a time when people were working in the store next door. At trial, they were sentenced to conditional sentences of two years less a day. The Crown appealed. The Court of Appeal noted (at para. 3) that it has consistently held that conditional sentences are not appropriate for serious arson offences. The arson in that case was described as well planned. Gasoline was acquired, deadbolts to a door were unlocked, debris was cleared away from the door to permit entry, a motion sensor was moved, and a burglar alarm was bypassed. Furthermore, and undoubtedly an aggravating feature of the case, the perpetrators followed through with their plan to blow up and burn down their own store even after they discovered that people were working late in the adjoining shop. The Court of Appeal said that a fit sentence would have been two years less a day in custody, but bearing in mind that the respondents had already complied with their conditional sentences when the appeal was heard, a further twelve months in custody was ordered.

[32] In R. v. O’Hanley, 2020 ONSC 1310, the accused was convicted of setting the residence of the complainant, a person with whom he had had a relationship, and had children, on fire. They were not in the house at the time. But the complainant and her family lost significant personal property that was not insured, neighbours had to flee from their homes to a position of safety, and firefighters were put at risk, not knowing whether there were occupants in the house who needed assistance to escape the fire. King J. stated, at para. 55, that in the absence of any mitigating factors, the actions of the accused might attract a sentence of three years or more. Even after taking into account mitigating factors, King J. was of the view (at para. 60) that the accused:

… must receive a sentence of imprisonment. No other type of sentence would be appropriate in these circumstances without significantly, if not totally, disregarding the key sentencing considerations of deterrence and denunciation.

[33] In R. v. Nicholas, 2020 ONSC 1701, the defendant, who was 78 at the time of the offences, pleaded guilty to two separate acts of arson. He first set fire to a house into which he was going to be moving. He did so by starting fires in the sunroom on the upper floor and in the main basement room using an open flame and a volatile ignitable liquid vapour. After setting the fires, he left the house, telling a neighbour that there was a fire in the house and that he had called 911. In fact, he had not made that call. The defendant got into his vehicle and left the scene. Ultimately, this fire resulted in a loss of $541,835. He then set fire to another house where he had been residing for over 20 years. He started the fire using an ignitable liquid on the carpet in one of the rooms in the house. Ultimately, this fire resulted in a loss of $463,312.71. The defendant presented with significant mental and physical health concerns, and the sentencing decision of Aitken J. was handed down just after the Covid-19 emergency had started. She concluded, on compassionate grounds, that he should not be incarcerated, instead suspending the passing of sentence, and placing the defendant on probation for three years.

[34] In R. v. White, the defendant and his co-accused had set fire to the house of their neighbours. While the residents of the house suffered no physical harm, having escaped the blaze, the trial judge noted that the emotional and financial harm they had suffered was significant. They lost not only their home and physical possessions, but, she said, their sense of safety and security. The defendant was 21 at the time of the incident and suffered from what the court described as “debilitating cognitive limitations”. Pomerance J. stated that while the offence would ordinarily call for a significant term of incarceration, the offender’s mental disability was a significant mitigating factor. Noting that the defendant was amenable to supervision and counselling, she concluded that a two-year conditional sentence was appropriate, the first twelve months of which was under conditions of house arrest, followed by three years of probation.

[35] The Crown places emphasis on the need for general deterrence and denunciation in whatever sentence I impose on Mr. Bowley. I agree that these are important considerations. That is not to say, however, that a conditional sentence can never achieve the objectives of deterrence and denunciation. See, in general, R. v. Sharma, 2020 ONCA 478, para 110, and in particular, R. v. Kasotty, 2021 ONCJ 238, para 21.

[36] As I have indicated, rehabilitation of offenders is also an objective of sentencing. In Mr. Bowley’s case, it would appear that he has been working on addressing his mental health and substance abuse issues. Whereas the Crown has pressed for a custodial sentence, on Mr. Bowley’s behalf it has been submitted that he benefits from the structure and stability which reflects his life at the present time.

[37] Mr. Lisowski concedes that Mr. Bowley needs to continue to be supervised, so that he continues with his medication, to access services, and reduce his substance abuse. He submits that is unlikely that these positive activities can be achieved to the same extent, if at all, if Mr. Bowley is in custody.

[38] Mr. Kavanagh, for the Crown, candidly acknowledged that a sentence of anything less than the eighteen months that the Crown has asked for makes it unlikely that Mr. Bowley would be able to access specialist mental health programming in the provincial reformatory system.

[39] It is clear that mental health played a significant role in the commission of this offence. In R. v. Nicholas, 2020 ONSC 1701, para 28, referring to R. v. Prioriello, 2012 ONCA 63, paras 11-12, Aitken J. noted that in order for mental illness to be considered as a mitigating factor in sentencing, the accused must show a causal link between the illness and the criminal conduct.

[40] Pomerance J.’s sentencing decision in R. v. White, 2021 ONSC 2476, paras 22-23 also recognised that a direct link between an offender’s cognitive limitations and his involvement in the crime can justify a lower sentence than would usually be required.

[41] With the assistance of Dr. Sandhu’s report, I am satisfied that there is a causal link between Mr. Bowley’s mental health and the offences that he committed. Further, one only has to look at the abusive rants in the texts that he sent to Ms. Stoykova to appreciate that his actions and words were not those of a mentally well person.

[42] In R. v. Hart, 2015 ONCA 480, para 8, the Court of Appeal noted, with approval, the conclusion reached by a trial judge that to impose a custodial sentence would likely destroy any progress that had been made by the defendant with respect to his mental health and would serve no genuine societal interest. In that case, the accused, who was 20 years old at the time and had a youth record and a history of mental health issues, had set fire to a carpet which ended up setting fire to the attached home where five people resided. The trial judge suspended the passing of sentence and imposed a three year period of probation, along with various ancillary orders.

[43] Mr. Bowley, you can consider yourself fortunate that no one was hurt, and that the damage caused by your criminal behaviour was not more extensive.

[44] Although it is clear that what you have done would usually merit a period of imprisonment, I have concluded that in view of your personal circumstances it would not be appropriate to send you to prison. In coming to that conclusion, I have taken into account what has been said about the need for you to continue to have access to the mental health and other services that you have been accessing, as well as the importance of structure and stability in your life. I have also taken into account that you have already spent three years living under something close to conditions of house arrest. Since the decision of the Court of Appeal in R. v. Downes, it has been appropriate for sentencing judges to consider reducing a sentence in light of time spent under stringent bail terms, especially house arrest.

[45] That having been said, it is appropriate that you experience some further deprivation of your liberty through a term of imprisonment to be served in the community, under conditions which are intended to promote the goal of rehabilitation.

Decision

[46] Mr. Bowley, please stand up.

[47] On the charge of arson, you will serve a conditional sentence of imprisonment in the community of eighteen months. In coming to that term, I have taken into account the significant period during which you were on judicial interim release on restricted terms.

[48] On each of the uttering threat charges, you will serve a conditional sentence of imprisonment in the community of six months, to be served concurrently.

[49] Within two working days of today, you will report in person to a supervisor and, thereafter, when required by the supervisor and in the manner directed by the supervisor.

[50] You will remain within the province of Ontario unless written permission to go outside Ontario is obtained from either this court or the supervisor.

[51] You will reside at a place approved of by your supervisor.

[52] You will notify the supervisor in advance of any change of name or address, and promptly notify this court or the supervisor of any change of employment or occupation.

[53] For the first six months of your conditional sentence of imprisonment, you will remain within your residence daily except in the following circumstances:

a. Attendance for work related or education related matters and travel directly related to such matters;
b. Medical/dental appointments;
c. Meetings with the conditional sentence order supervisor or treatment/counselling sessions as directed by the supervisor;
d. On Saturdays between 10:00 a.m. and 2:00 p.m., to shop for the necessities of life; and
e. In relation to any other matter as may be pre-approved in writing by the conditional sentence order supervisor.

[54] After the first six months of your conditional sentence, until the conditional sentence has been served in full, you must be in your place of residence between the hours of 8:00 p.m. and 6:00 a.m. unless permission in writing is obtained from the supervisor, for example to enable you to undertake employment or education, or your absence is the result of a medical appointment or emergency.

[55] Throughout the eighteen months of your conditional sentence:

a. You will keep the peace and be of good behaviour;
b. You will appear before the court when required to do so;
c. Unless and until recommended otherwise by the supervisor, or discharged by the professional concerned, you shall continue with the following treatment:
i. Dr. Chimdi Uzoma Eleazer Uhoegbu, psychiatrist at the Peterborough Regional Health Centre;
ii. Dr. Janet Webb, family doctor at Tri Area Medical Centre;
iii. Addiction counselling; and
iv. Biweekly meetings with a counsellor/therapist from the Canadian Mental Health Association.
d. You will notify the supervisor of any other health care professionals that you are in a therapeutic relationship with, and will promptly notify the supervisor if you are discharged by, or cease to have a therapeutic relationship with any of these health care professionals, including those I have specifically identified;
e. You will take all medications as prescribed for you for mental health purposes by duly qualified healthcare practitioners;
f. You must sign any consents necessary for the monitoring of your mental health by the supervisor;
g. You must attend for any counselling as recommended by the supervisor, you shall pay any applicable fees, and you shall sign any consents necessary for your supervisor to monitor your attendance and completion of any assessments, counselling or rehabilitative programmes as directed;
h. You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programmes as directed;
i. You shall not possess or consume any unlawful drugs or substances as defined by the Controlled Drugs and Substances Act, SC 1996, c 19, except with a valid prescription in your name or those available over the counter;
j. You shall not possess any incendiary devices except for a single lighter for your personal use;
k. You will not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with Michael McLellan or Albena Stoykova;
l. You will not be within 500 metres of any place where you know Michael McLellan or Albena Stoykova to live, work, go to school, or frequent, or any place where you know those persons to be; and
m. You must carry a copy of the conditional sentence order with you whenever you are outside of your place of residence.

[56] I am required by the Criminal Code to explain the substance of the conditional sentence order that has been made. A conditional sentence is both punitive, because it restricts your liberty, and rehabilitative. The conditions I have just told you about must be complied with by you. None of them are optional. If you break one or more of the conditions of your conditional sentence, there may be a hearing held in front of a judge. If the judge is convinced that you have broken one or more of the conditions without lawful or reasonable excuse, he or she may require you to serve the remaining time in jail.

[57] You, the supervisor or the Crown can apply to the court, pursuant to s. 742.4 of the Criminal Code, to change the conditions of this conditional sentence order upon giving notice, and in some cases, there can be a hearing in a court to determine whether the change or changes requested should be made.

[58] Do you understand what I have told you about the conditional sentence?

[59] You will be provided with a copy of the conditional sentence order that I have made as well as a copy of my reasons.

[60] Following the completion of your conditional sentence of imprisonment, you will be on probation for a further three years, the terms of which will be as follows:

a. You will keep the peace and be of good behaviour;
b. You will appear before the court when required to do so;
c. Within two working days of the expiration of your conditional sentence of imprisonment, you shall report in person to a probation officer and, thereafter, be under the supervision of a probation officer or a person authorised by him or her, and report at such times and places as that person may require;
d. You will reside at a place approved of by your probation officer and not change that address unless pre-approved by your probation officer;
e. You will promptly notify the probation officer of any changes of education, employment or occupation;
f. You will attend for any counselling as recommended by your probation officer, and sign any consents necessary for the monitoring of your progress at such counselling;
g. Unless and until recommended otherwise by your probation officer, or discharged by the professional concerned, you shall continue with the following treatment:
i. Dr. Chimdi Uzoma Eleazer Uhoegbu, psychiatrist at the Peterborough Regional Health Centre;
ii. Dr. Janet Webb, family doctor at Tri Area Medical Centre;
iii. Addiction counselling; and
iv. Biweekly meetings with a counsellor/therapist from the Canadian Mental Health Association.
h. You will take all medications as prescribed for you for mental health purposes by duly qualified healthcare practitioners;
i. You will sign any consents necessary for the monitoring of your mental health by the probation officer;
j. You will not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with Michael McLellan or Albena Stoykova; and
k. You will not be within 500 metres of any place where you know Michael McLellan or Albena Stoykova to live, work, go to school, or frequent, or any place where you know those persons to be.

[61] It is important that, despite some similarities in their terms, you understand that the conditional sentence order and the probation order that I have made are separate orders. The probation order takes effect when the conditional sentence ends.

[62] The exact wording of the conditional sentence and probation orders that I sign may, because of forms used, vary slightly from the terms I have just articulated, but if there are differences, they will be differences of form, not of substance, and the signed orders will be what governs in the event that there are any discrepancies between the orders and the reasons I have just given.

[63] There will also be orders authorising the taking from you of such bodily substances as are necessary for the purposes of a forensic DNA analysis, pursuant to s. 487.04 of the Criminal Code, as well as a weapons prohibition for ten years under s. 109 of the Criminal Code.

Graeme Mew
Handed down (orally and in writing): 21 February 2025