IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Name one of the largest providers of mental health in this province; if you guessed the criminal justice system and our jails you guessed right.

[2]           It remains a constant challenge for those involved in the Criminal Justice System in our de facto roles as Mental Health Workers to ensure those struggling with mental illness are treated fairly and appropriately by the system.

[3]           On November 22, 2016 Ms. Leer plead guilty to causing damage by fire to a townhouse complex that she and her mother were living in, contrary to section 434 of the Criminal Code. The incident occurred on evening of October 13, 2016, five weeks after her 18^th birthday. The damage to the building was 1.1 million dollars.

[4]           Ms. Leer is mentally ill.

[5]           The Crown is seeking a sentence of 4-5 years less the time she has already spent in custody.

[6]           The defence seeks a sentence of two years in addition to the time she has already served. This equates to a sentence of just over three years.

[7]           I appreciate Ms. Leer, that what I am about to read is lengthy and some of what I have to say might be of little interest to you, but it is important that not only you but the victims and other members of our community understand why I am imposing the sentence I am. Although it would easier to summarize it and provide a written copy of my reasons, I am required by law to read it in your presence.

[8]           Ms. Leer turned 18 on September 5, 2016.

[9]           Ms. Leer began experiencing learning difficulties at an early age. In middle school fellow students started bullying her because of her inability to keep up with them. She was beaten-up several times walking home from school and developed insecurities. In grade 11 she stopped going to school altogether.

[10]        During her last year of school she developed a relationship with a boy that resulted in emotional, physical and sexual abuse.

[11]        Ms. Leer’s mother, Ms. Knutson, says the last three years her relationship with her daughter has been very challenging. She became increasingly irritable, and aggressive. In the last six months, she began posting comments on Facebook about wanting to end her own life. Her mother described her as being isolated and quite angry in the past year.

[12]        A few weeks prior to the arson, she broke up with her boyfriend and began exhibiting aggressive and unpredictable behaviour that resulted in police and psychiatric interventions.

[13]        Ms. Leer has made several spurious accusations about her mother that are not corroborated by other members of her family. She says she resents her mother for not letting her have more contact with her father. Her father left the family when she was three. She also maintains suspicions that her mother is not her natural mother and says she would rather live in an orphanage than return to her mother’s home.

[14]        Ms. Leer told the report writer that prior to being incarcerated she was smoking marijuana daily and drinking on weekends. She also admits to trying cocaine, magic mushrooms, ketamine and MDMA the previous summer.

[15]        At age 12 she began engaging in self-harm by cutting and burning herself. Her most recent act occurred in custody when she tried choking herself for about 5 seconds.

[16]        On October 7, 2016, Ms. Leer was hospitalized after been found running in traffic. She was initially admitted for suicidal ideations. She refused to stay in the hospital voluntarily and was admitted under the Mental Health Act. She remained hospitalized for two days. During her stay, Ms. Leer was very aggressive with the staff. At one point she yelled that she was going to kill someone when she was released.

[17]        She was diagnosed as having an alcohol use disorder. Prior to her release she was offered medication but refused to take it. She was referred for drug and alcohol counselling at Pathways and a follow-up visit with Dr. Nino, but did not attend either.

[18]        On October 13, 2016, following a complaint by a neighbour, police returned Ms. Leer to the hospital. The basis of the complaint is unknown. Ms. Leer was cooperative. She stayed in the hospital for a few hours before being discharged.

[19]        The Psychiatrist who conducted the assessment at that time concluded that Ms. Leer was not suffering from suicidal ideations beyond the baseline. There was no evidence of any psychotic symptoms or thought disorder. However, her insight, judgment and relationship with her mother were described as poor.

[20]        In the discharge summary the doctor states:

[21]        Ms. Leer’s mother plead with the medical staff to keep her daughter in the hospital arguing that her daughter was suffering from more than just behavioural issues or a teenage fit.

[22]        I am sure some will criticize the doctor for releasing Ms. Leer from the hospital on October 13^th, 2016. This is not the forum to decide whether that decision was correct, nor would it be fair to try to make such an assessment without having more information. Furthermore, it is important to point out that in Canada it is very difficult to keep someone in the hospital against one’s will; the threshold is very high. Certain criteria must be met before doing so, and often, despite concerns, the threshold cannot be met.

[23]        Following her arrest, both a Psychiatrist and Psychologist conducted a Court ordered assessment to determine whether she was suffering a mental disorder that would exempt her from criminal responsibility. Dr. Kolchak, a Psychiatrist, employed by the Forensic Psychiatric Services, concluded that Ms. Leer was not suffering from any sort of disorder that would deprive her from appreciating the nature and quality of her actions, or prevent her from understanding that her actions were both legally and morally wrong. He diagnosed Ms. Leer as suffering from Borderline Personality Disorder, and possible Substance Use Disorder associated to her use of marijuana and alcohol.

[24]        Ms. Leer described her actions to the Psychiatrist as an impulsive act of anger and frustration that she built up towards her mother.

[25]        In preparation for sentencing, Ms. Leer was assessed again on February 2, 2017. Dr. Lopes states in his report, that the more time it took to complete the assessment, the more difficult Ms. Leer’s statements became to follow. Many times her statements were nonsensical.

[26]        The Psychiatrist asked Ms. Leer whether she was willing to take medication, she said no.

[27]        Dr. Lopes describes Ms. Leer as showing symptomology consistent with Borderline Personality Disorder with increasing difficulty in regulating her emotions. She also demonstrated chronic impulsivity, long-standing preoccupations with abandonment from her parents and friends, long-standing difficulties with relationships and significant fluctuation in her mood symptoms. He said that she has a history of a love-hate relationship with her mother and a history of making suicidal threats and threats of self-harm.

[28]        He points out that the use of drugs and alcohol likely exacerbate some of her mood symptoms.

[29]        She does show a history consistent with manic or full-blown psychosis.

[30]        In summary Doctor Lopes states:

[31]        On June 14, 2017, Ms. Leer found herself back in the forensic psychiatric hospital. This time she was presenting with disorganized thought process, guarded and unable to engage in conversation appropriately. She spoke about receiving messages from others, and appeared to be experiencing perceptual disturbances. Doctors were not able to pinpoint the origin of her psychosis.

[32]        According to the hospital staff, Ms. Leer eventually agreed to take medication. With the antipsychotic medication her thought processes became organized and she was better able to engage in conversation with the professionals.

[33]        In the last report, Dr. Kolchak remains very guarded. He concludes that Ms. Leer continues to suffer from residual psychotic symptoms but they do not appear to interfere with her functioning. However, he states that both her insight and judgement remain poor.

[34]        Ms. Leer’s mother and father both continue to support her. Her father hopes that he will be able to find her employment and a residence when she is released from jail, but has no concrete plans in that regard.

[35]        On October 13^th, 2016, Ms. Leer was taken to the Penticton hospital by police. She was released back into the care of her mother later that same day.

[36]        As Ms. Leer and her mother drove back to their residence, Ms. Leer grabbed the steering wheel and attempted to steer the vehicle into oncoming traffic.

[37]        When they arrived at home, Ms. Knutson went outside to call 911 and report the erratic behaviour of her daughter. She told the dispatch operator she was concerned that her daughter was released from the hospital when she ought not to have been.

[38]        During the telephone call, Ms. Leer lit a candle and deliberately started a fire in their townhouse. As the fire spread, Ms. Leer ran out of the house and then back in after realizing the family dog was still inside.

[39]        The fire started shortly after 8 p.m.

[40]        Police arrived first and began evacuating residence from the three attached units. It is unclear how many people were evacuated, what their ages were and whether any of them suffered physical challenges. Given the time of day, it would have been foreseeable that most of the units would have been occupied when the fire started.

[41]        Fire crews attended shortly thereafter. They described the fire as one very difficult to combat. There was heavy smoke and low visibility. They were left to fight the fire defensively as opposed to an offensive approach.

[42]        The fire caused 1.1 million dollars damage to the structure alone. This did not include the contents of the units, for which some tenants, including Ms. Knutson, did not have insurance. Fortunately, there was no loss of life or injuries. However, some family pets did perish.

[43]        Ms. Leer was arrested by police at the scene.

[44]        Police obtained a warned statement from her.

[45]        She spoke about her difficulties at school and her anger towards her mother.

[46]        She said she lit a big candle on fire and tossed a book beside it to help fuel the fire. One reason that she provided for lighting the fire is that she wanted her mom to find a different residence.

[47]        Ms. Leer did not express any remorse for her neighbours.

[48]        A number of victim impact statements were filed in this matter. They all describe the fear and anxiety the fire caused and continues to cause them. All had to relocate and lost their personal possessions.

[49]        A mother of three, Alanna Sampson, describes having no insurance for any of their possessions, and losing their family pets.

[50]        The Cangiano’s estimates their losses in the six figures. They too were without insurance and lost their beloved family cat.

[51]        Ms. Calfa speaks about missing two weeks of work because of the emotional, physical and financial upheaval caused by the fire. Like others, she too lost sentimental possessions that cannot be replaced.

[52]        Finally, Ms. Leer’s mother, Ms. Knutson, read her victim impact statement to the Court. She spoke of becoming a recluse because people in the community were shunning her for the actions of her daughter. She continues to experience nightmares. She is thankful nobody got hurt. Ms. Knutson says that although she is afraid of what her daughter might do next, she loves her and desperately wants to help her.

[53]        The objective seriousness of the crime is established by its maximum sentence of 14 years. It is considered less serious than its companion section, section 433 of the Criminal Code, which carries a maximum sentence of life. This distinction is important when reviewing sentencing precedents.

[54]        The statutory objectives of sentencing are set out in section 718 of the Criminal Code. The following objectives are paramount in the case at hand: protection of the public, denunciation, general and specific deterrence, separation of the offender from society and rehabilitation.

[55]        The principles of sentencing that have application are proportionality, restraint, and parity.

[56]        Ms. Leer was only five weeks past her 18^th birthday when she committed the arson.

[57]        Young people often lack maturity, parental supervision and guidance and this diminishes their level of responsibility and moral blameworthiness. Although Ms. Knutson tried her best, with the issues that Ms. Leer was struggling with, it was next to impossible to help her move her moral compass in the right directions.

[58]        As our Court of Appeal observed in Campbell, general deterrence is usually foregone for rehabilitation when dealing with youthful offenders. Many crimes committed by youthful offenders are impulsive and immature, and likely not influenced by exemplary sentences. However, deterrence remains a primary consideration for violent crimes.

[59]        Generally speaking, sending young people to the penitentiary is not conducive to the protection of the public. In Addley, the accused was 20 years old and described as young and impressionable. The Court pointed out that if it imposed a two year sentence like the Crown sought, people who would be in a position to influence the accused for the next two years of his life would be comprised of prisoners convicted of serious offences who were incarcerated in federal prison. In that case, the Court viewed the accused as someone who could mature and develop into a productive and valued member of society, but that would be unlikely if the accused was placed in a federal prison.

[60]        Unfortunately, the likelihood of Ms. Leer improving her lot in life appears less certain that for Mr. Addley.

[61]        In Kerswell, the accused was convicted of break and enter. He had an unenviable record but was only 20 years old. In reducing the sentence from 3 years to 2 years less one day, the Alberta Court of Appeal observed that when it comes to young people there is a little likelihood of rehabilitation in a penitentiary and a considerable likelihood that even a bad youth will be made worse by the experience.

[62]        Ms. Leer’s mental illness is not an aggravating fact, but there are mitigating and aggravating factors that flow from her condition.

[63]        Although mental illness does not diminish the gravity of the offence, it can diminish the degree of responsibility or moral culpability of the offender. People who are afflicted by impaired reasoning, delusional disorders, and other similar mental conditions are distinguished from the ordinary offender who is fully accountable for his or her conduct.

[64]        In Soosay, the Court described it this way:

[65]        The presence of a mental illness can impact the sentence imposed in several ways. It can:

[66]        In Robinson, the Ontario Court of Appeal observed:

[67]        General and specific deterrence and denunciation are often given less weight when dealing with the mentally ill because the offender is not an appropriate medium to serve as an example to others.

[68]        In Abou, the Court summarizes this point well:

[69]        In order for mental illness to be considered a mitigating factor, the accused must show a casual link between the illness and the criminal conduct. The illness must be an underlying reason for the improper conduct.

[70]        In Day, The British Columbia Court of Appeal observed that the accused’s mental illness (Schizoid-Effective Disorder) did not justify a reduction in sentence because it neither caused him to commit the arson nor could it be said that his moral culpability was reduced as a consequence of his mental illness.

[71]        In Alcorn, the Alberta Court of Appeal noted that the evidence taken as a whole did not demonstrate that the accused was unable to master his behaviour, and his mental disorders were not a mitigating factor.

[72]        The risk that a person poses to the community as a result of the mental disorder is an important consideration where the illness makes the individual dangerous. Some offenders suffer from disorders that defy treatment that renders them unlikely candidates for rehabilitation.

[73]        In the case at hand, I am satisfied that Ms. Leer’s illness did contribute to some extent to her actions that day. However, I am unable to conclude that it was the sole reasons for her actions.

[74]        The mitigating and aggravating features that flow from her illness are:

[75]        During the proceedings, I asked counsel to make submissions regarding whether Ms. Leer, given her mental health issues, would benefit more from being in a federal versus provincial institution.

[76]        In response, the Crown filed a letter prepared by Katherine Cote. Ms. Cote is a Probation Officer employed at Alouette Correctional Centre for Women. She is very familiar with the programming in both the federal and provincial systems.

[77]        The description of the programming in the provincial institution is discouraging. The provincial institution is the first introduction that people suffering from mental illness have to our jail systems. Ms. Cote points out that despite Ms. Leer being in the “special high needs unit” at the prison, she does not have access to a counsellor throughout the day as she would in the federal institution. In a federal institution, she would have daily access to a counsellor until 9 p.m.

[78]        Ms. Cote, also points out that there is only a single core program that would be available to Ms. Leer in the provincial institution as compared to the numerous and very robust programs available to her in the federal institution.

[79]        In pains me to know that better programming for the mentally ill is found in the federal institution, an institution where one expects to find more serious and hardened criminals.

[80]        In weighing the advantages and/or disadvantages of the two systems, I must remind myself that although it may be appropriate in some circumstance to increase a sentence to enable treatment to be undertaken while the offender is in prison, the sentence should never exceed what is appropriate for the offence and offender.

[81]        In Wilson, the Alberta Court of Appeal found that the sentencing Judge erred by imposing an excessively harsh sentence with a view to controlling the accused’s actions and providing treatment. The Court emphasized that imprisonment should not be used as a substitute for mental health care. While rehabilitation is always a consideration, it should never be used to take the sentence beyond what is appropriate for the offence.

[82]        In Hynes, the accused suffered from schizophrenia and attacked the neighbour’s house by throwing rocks at it. The sentencing Judge imposed a sentence of two years jail and three years’ probation for mischief. The Newfoundland Court of Appeal held that the Judge erred in imposing the maximum sentence simply because the mental health authorities did not step in a deal with the accused. The sentence must fit the crime and not be imposed to keep the offender out of circulation just because of illness.

[83]        Fortunately, we do not lock up people because small segments of our population might see them as socially inconvenient, instead the sentences we impose must fit the offence and the offender. We must rely on our medical/mental health systems to do their part too.

[84]        After hearing submissions regarding the type of programming available for the mentally ill, I am satisfied the federal programming presents as being more robust and suited to Ms. Leer.

[85]        In the book, Ruby's Sentencing, Seventh Edition at p. 954 the author writes:

[86]        The range of sentences is particularly broad. No two cases are alike, but the following cases share some similarities to the case at hand. Notably, in some of the cases that I will be referring to, the accused did not suffer from mental health issues, and were considerably older that Ms. Leer.

[87]        In R. v. Quigley, 1998 CarswellBC 494 (CA), the 56 year old accused was found guilty of arson pursuant to section 433 of the Criminal Code. He was a resident of the building and being evicted. The building was occupied when he set it on fire with gasoline. Fortunately no one was injured. He suffered from paranoid tendencies and anti-social personality disorder. At the time of sentencing he failed to appreciate the enormity of his actions and was unwilling to engage in any treatment regime. In reducing the sentence from 8 to 5 years, the Court said it hoped that a structured penitentiary setting would serve to reform the accused.

[88]        Mr. Quigely was much older than Ms. Leer, was found guilty after trial and unlike Ms. Leer engaged in a measure of planning in deliberation before setting fire to the building.

[89]        However, like the case at hand, the material laid before the sentencing Judge indicated that this appellant did not seem, even at the time of sentence, to appreciate the enormity of his conduct and appeared to be largely unwilling to accept a treatment regime.

[90]        The Court of Appeal made the following observation regarding the challenges faced by Court in sentencing individuals like this when it states at paragraph 6:

[91]        In R. v. Castro-Andino, [1998] BCJ No 3171 (SC), the accused was convicted of arson. He had been mistreated by some members of the community and in the course of seeking revenge, set fire to the local cultural centre. Although he was intoxicated when he set fire to the building, it was not considered a mitigating factor. The accused’s actions were planned and deliberate. He had taken a container of gasoline to the building and lit the fire near a propane tank. The Court said it was aggravating that he was motivated by the worst of intention, revenge. The sentence imposed was 3 ½ years less 1 ½ years of pre-sentence custody.

[92]        In R. v. Allard, 1999 BCCA 48, the accused was found guilty of arson after a trial. The accused had been living in the home of the victim and her children. The relationship became strained and the victim asked the accused to leave. The accused threatened to harm her and her children. When the victim was away, the accused set her residence on fire causing substantial damage and the death of 11 pets. The accused was not remorseful, and was characterized by the Court as demonstrating a continuing danger to the public. With pre-sentence credit the aggregate sentence imposed was slightly more than 4 years. The sentence was upheld on appeal.  

[93]        In R. v. Barnes, 2005 BCCA 432, the 20 year old Aboriginal appellant plead guilty to lighting on fire a gathering place for people suffering from mental health problems, theft and killing a cat. The fire had been set in 5-6 different locations in the building. He set the fires to conceal the theft of money from a cash box. There was approximately $85,000 damage. He was on bail for killing a cat. When police interviewed him, he spoke about having fantasies killing people and being empowered by killing cats. He was diagnosed as suffering from autistic spectrum disorder, personality disorder, and utero exposure to substances. He was deemed to be a high risk to violently reoffend. The Psychiatrist recommended a minimum two year sentence for treatment in a federal institution. The Court of Appeal upheld the 2 year sentence.

[94]        In R. v. Keber, [2005] BCJ No 2475 (CA), the 33 year old offender was employed at a gas station. He lit the station on fire to conceal the fact that he had stolen money. He suffered from depression, bipolar disorder, poly substance drug addiction, and a mixed personality disorder with some antisocial tendencies. He did not have a prior criminal record. Although having fled the province initially, he returned, was cooperative with police and turned himself in. The Court of Appeal opined that a two-year sentence followed by two-years’ probation was the best way to ensure that the appellant was successfully rehabilitated and the community was protected. 

[95]        In R. v. Jones, 2006 BCPC 278, the accused became embroiled in an argument with his common-law partner and during a state of intoxication lit a photo of her on fire, threw it on the bed and left. The apartment building caught fire, and the inhabitants were evacuated in the early morning. The damage to the building was $50,000. He had an unrelated criminal record. He had taken counselling in custody but the Court was not persuaded he was genuinely remorseful. The Court imposed a sentence of 2 ½ years for arson pursuant to section 433 of the Criminal Code. 

[96]        In R. v. Clifford, 2015 BCSC 875, the accused was convicted of arson after destroying 12 trees and burning a garage during the night when the victim was asleep in the house near it. The loss was estimated to be in the hundreds of thousands of dollars. The accused was a 49 year old veterinarian without any criminal record. The accused had been in a relationship with the victim’s wife prior to setting fire to the garage. The Court described the crime as carefully planned, with nothing impulsive about it. The motive, revenge, was another aggravating factor. The Court imposed a sentence of 3 years.

[97]        In R. v. Bogue, 2017 BCPC 58, the accused plead guilty to arson. While in a drug induced psychosis he lit four separate fires to the house he was renting. There was $315,000 damage. The fire also put the neighbours at risk. Although the accused was in a drug-induced psychosis, there was a degree of planning involved. He purchased a jerry can of gasoline, poured it in four separate locations inside the residence, and opened a fire door to help the fire spread more quickly. While on bail, he lit a second fire at the local fire hall. Again, he was in a drug-induced psychosis. The accused did not have a criminal record, was described by his Psychiatrist as a model patient, and had completed an eight-week treatment program. At sentencing, he was already in full remission of his Substance Abuse Disorder. In light of his findings that the accused was clearly in a drug-induced psychosis, and had made very positive strides towards rehabilitation, Judge Merrick imposed a suspended sentence and placed the accused on probation for 3 years. He also made a stand-alone Restitution Order for approximately $315,000.

[98]        In R. v. CPM, 2009 ABPC 58, the accused plead guilty to two counts of arson. He set 13 fires in two days. He set fire to personal property that was close to residences where people were asleep. The total loss was approximately $75,000. The accused had just turned 18 and had 15 convictions as a youth. The accused had a longstanding alcohol addiction and the offences were committed while he was under the influence of alcohol. The Psychologist diagnosed the accused with a Poly Substance Abuse Disorder and an Anti-Social Personality Disorder. In his view the accused was a high risk to reoffend. The prospects for rehabilitation were not good. The aggregate sentence imposed was 2 ½ years.

[99]        In R. v. Prangley, [1983] SJ No 820 (CA), the accused was convicted along with another of setting fire to an apartment building. The fire was set at around 2 a.m. after the accused spread gasoline. People were asleep inside but fortunately no one was injured. The two were hired to commit the arson on behalf of the owner of the building. Neither were remorseful. The accused had a lengthy record and described by the Court as a seasoned criminal. The sentence was increased from 5 to 8 years.

[100]     In R. v. Roberts, [1998] OJ No 619 (Gen Div), the accused set fire to a stack of newspapers in the garage. The fire spread quickly and the accused ran inside to wake his wife, in-laws and children. No one was injured. The house was completely destroyed and its estimated value was $150,000. He was sentenced to 18 months.

[101]     In R. v. E (JL), 2001 ABPC 90, the 19 year-old accused in an effort to get back at her former boyfriend’s girlfriend, threw a Molotov Cocktail through a window of the girlfriend’s residence, creating a small fire. There was little damage and no injury to the occupants. She plead guilty. She had been encouraged by her new boyfriend to commit the arson. She had a criminal record as a youth and the longest sentence served was 4 months. The Court imposed a sentence of 27 months.

[102]     In R. v. Roswell (2002) 2002 CanLII 54000 (NL SC), 210 Nfld & PEIR 226 (NLTD), the accused lived in a house owned by his mother who lived elsewhere. Acting on the original suggestion of the accused the mother found a buyer for the house. He changed his mind and objected to the sale and said he would rather see it burned down than sold. He got some gasoline, poured it in the house and lit it on fire. The accused was intoxicated at the time. He was charged pursuant to section 434 of the Criminal Code. The accused suffered from some mental disorders namely Obsessive Compulsive Disorder, and a Schizotypal Personality. The Court said the range was between two years less one day and six years. The Crown suggested the lower end of the range and the Court imposed a sentence of two years but expressed the view it was extremely lenient. 

[103]     In R. v. HK, [2004] NBJ 196 (CA), a young offender, aged 16, and two adults set fire to a boat which was in an exhibition building. They had been offered $1,000 to do so. The building and its contents were destroyed and nearby homes were threatened. There was 3 million dollars in damage. All three were convicted of arson and sentenced at the same time. One of the adults was sentenced to 4 1/2 years and the other was sentenced to 3 1/2 years. The young offender was sentenced to 22 months of secure custody. One year earlier, he had been convicted of theft and sentenced to 6 months of supervised probation.

[104]     In R. v. Bain, 2005 ABPC 101, the 21 year-old accused plead guilty to arson. He had been smoking in a garage connected to the family home and lit a small piece of wood on fire. He watched it burn for a while but it was only smouldering. He then went inside and went to bed. When the smoke alarm went off, he woke up his parents and sister and called 911. The damage was estimated at $330,000. He said his intention was to only blacken the wood to send a message to his father that there were issues between them that needed addressing. He had also been the subject of bullying at school. He was on probation at the time for theft and assaulting his father. He had no other record.

[105]     While imposing effectively a 26 month sentence, the Court said it was important not to place undue emphasis on the consequences of the offence and insufficient attention to actual circumstances and moral blameworthiness of the appellant.

[106]     In R. v. Lapointe, 2010 CarswellNB 429 (CA), the accused lit a fire to a shed causing $30,000 damage. He did not know who owned the property and it was not insured. He plead guilty and was sentenced to 3 years. The Court of Appeal reduced the sentence to 18 months. In doing so, the Court reviewed a number of cases and noted these comments from R. v. HK (1994), 1994 CanLII 17267 (NB CA), 146 NBR (2d) 372 (CA):

[107]     As the New Brunswick Court of Appeal pointed out, the seriousness of the offence extends well beyond the property damage that occurred. Fire is inherently dangerous, and difficult to control. Setting a fire to a building, especially one that is occupied, can have unintended and fatal consequences.

[108]     In R. v. Cove, 1981 CarswellNS 25 (CA), the 25 year old accused plead guilty to 4 counts of arson. The fires involved two barns, a cottage, and fish house over a 3-month period. He was a first offender, and gainfully employed. He had been hospitalized twice for manic depression. He suffered from personality disorders which were a motivating factor in his conduct. His condition was treatable and as the Court pointed out, the matter of parole would be determined by his success in treatment. A sentence of 5 years was upheld on appeal.

[109]     Although prior cases assist in determining where a particular case falls within a particular range, ultimately, the sentence imposed must be based on the circumstances of the offender, the offence, and the application of the appropriate objectives and principles of sentencing. Important features that distinguish the cases, including this one, from one another are the degree of planning, motivation, age of the offender, offender’s mental makeup, criminal record, risk to the public, and the resulting damage.

[110]     The Crown seeks a stand-alone order for restitution in the amount of $1,097,000. A stand-alone restitution order is an order that becomes an enforceable civil judgment if it is not complied with.

[111]     In Zelensky, the Supreme Court considered the constitutionality of the stand-alone Restitution Order provisions in the Criminal Code. In upholding the section, Chief Justice Laskin, speaking for the majority said that orders for compensation should be made “with restraint and caution.”

[112]     In 2015 Parliament enacted section 739.1 of the Criminal Code and it made it clear that an inability to pay does not prevent the Court from making a stand-alone Restitution Order under section 738 or 739 of the Criminal Code.

[113]     This amendment appears to be a signal from Parliament, that when it comes to considering restitution, an offender’s ability to pay although still a consideration should be less of an impediment in imposing an order than in years past.  

[114]     In Nanos, our Court of Appeal held that an ability to pay inquiry is particularly important where the accused did not profit from the crime like arson.

[115]     In Dunn, the British Columbia Court of Appeal overturned a stand-alone Restitution Order of $15,000 for an accused addicted to crack cocaine. The Court said the order was an afterthought without full argument or submissions on the accused’s ability to pay. Although, Dunn, predates section 739.1 of the Criminal Code, I believe it remains imperative that the Court have submissions from both parties regarding the accused’s ability to pay prior to imposing an order, especially one that exceeds one million dollars.

[116]     In some situations a substantial Restitution Order can have an adverse impact and not be conducive to the rehabilitation of the accused and the protection of the public.

[117]     In Siemens, the Manitoba Court of Appeal observed that restraint must be exercised where the imposition of a Restitution Order has the potential of ruining and crippling the accused financially. Such can, and often will, impair the prospects of rehabilitation.

[118]     In Propert, the Court held that Restitution Orders should rarely be imposed where compliance will be particularly onerous or impossible.

[119]     In striking a Restitution Order for $1.1 million dollars, the Quebec Court of Appeal in Legault recognized that Restitution Orders survive bankruptcy, and that large orders can lead to permanent indebtedness; imperilling the principle of rehabilitation.

[120]     A substantial Restitution Order, like the one being sought here, or any Restitution Order for that matter, waiting for Ms. Leer after she is released from custody will present as a significant barrier to her rehabilitation and reintegration into the community.

[121]     I am not without a great deal of sympathy for those individuals who suffered losses that have not been covered by insurance and they ought to be compensated.

[122]     I am also mindful that insurance companies, like other victims are entitled to restitution, however, in these circumstances where I see such an order potentially imperilling Ms. Leer’s success at rehabilitation, I will leave it to the company(s) and or individuals to pursue Ms. Leer civilly if they determine it remains an appropriate course of action.

[123]     It is unfortunate, when the criminal justice system and people suffering from serious mental health issues collide. I do not have the authority to direct Ms. Leer to serve her sentence in a psychiatric institution; I wish I could. I trust the correctional system will place her in an institution that has a strong psychiatric support where she can receive the necessary care and treatment.

[124]     The protection of the public is always the most important consideration. In this case, it looms large. Despite her mental health issues, and youthfulness, Ms. Leer presents as a high risk to re-offend. Untreated, Ms. Leer is a danger and unfortunately, her continued removal from the community is necessary. Although I am not ignoring the objective of rehabilitation, this objective must initially be addressed in a custodial setting. I hope that in a structured environment she will take advantage of the programming and treatment offered to help her gain insight into her behaviour, and learn ways to control it.

[125]     After considering all of the objectives and principles of sentencing, including the aggravating and mitigating factors, Ms. Leer’s mental makeup and her age I am satisfied that a sentence of just over 3 years is appropriate. However, I also see a critical need to supervise Ms. Leer when she is released from custody. Such supervision would benefit both Ms. Leer and the community. If I impose more than 2 years of new jail time, I cannot impose a probation/supervision order. For that reason, the sentence I am about to impose is slightly more than 3 years.

[126]     The sentence I would have imposed would have been 1,189 days.

[127]     Ms. Leer has been in custody for 306 days and I am giving her enhanced credit for the time she has spent in custody which is 459 days.

[128]     The sentence is 730 days or two years.

[129]     The sentence will be followed by a three-year probation order.

[130]     Because it is difficult to predict whether Ms. Leer’s level of dangerousness and unpredictability will abate during her time in custody, it is necessary to impose conditions that anticipate the worst. If things go well, and she successfully engages with her treatment providers, some of the terms that follow can be reviewed and potentially amended or repealed:

[131]     I am also imposing the following ancillary orders:

[132]     Arson is a secondary designated DNA offence. I am satisfied that based on the level of future dangerousness, it is in the best interest of the administration of justice that a sample of your bodily substances be taken for purposes of registration in the national DNA databank and I make that Order in Form 5.04. The Order is valid until executed.

[133]     Pursuant to section 109 of the Criminal Code, I am satisfied that Ms. Leer will continue to struggle with her challenges for a very long time, possibly for the rest of her life and that a lifetime ban on firearms is appropriate. You are prohibited from possessing any firearm, crossbow, restricted weapon, prohibited device, ammunition and explosive substances for life.

[134]     Pursuant to section 743.21(1) of the Criminal Code you must have no communication directly or indirectly with: Earlanna, Mathew, Robbie and Reggie Simpson; Antonio and Jessica Cangiano; Lisa Calfa; Cornelius Hayben; Trina Links; and Lynn and Richard Schill, except through a lawyer.