



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hart, 2015 ONCA 480

DATE: 20150626

DOCKET: C58942

MacPherson, Simmons, and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Matthew Everett William
    Hart

Respondent

Alison Wheeler, for the appellant

Michael Lacy and Anida Chiodo, for the respondent

Heard: June 23, 2015

On appeal from the sentence imposed on May
    28, 2014 by Justice Nathalie Gregson of the Ontario Court of Justice.

ENDORSEMENT

[1]

The respondent pleaded guilty to intentionally
    or recklessly causing damage by fire to a dwelling house. He acknowledged setting
    fire to a carport, which ended up setting fire to the attached home where five
    people resided. No one was injured, and as the trial judge expressed it at
    para. 50 of her reasons: Fortunately the consequences were not more serious. The
    appellant said he did not intend to cause a big fire  but clearly his actions
    were reckless  and that his acts stemmed from a drug debt he owed to one of
    the residents. He was 20 years old at the time of the offence and has a youth
    record and a history of mental health issues.

[2]

The Crown proposed a
    sentence of 9  12 months in custody and three years probation.
The trial judge suspended the passing of
    sentence and imposed a three-year period of probation, along with various
    ancillary orders.

[3]

Among several other
    terms, the probation order imposed by the trial judge requires that the
    respondent attend any counseling deemed necessary by his probation officer,
    including substance use and mental health assessments; attend to meet regularly
    with his medical doctor, including his psychiatrist, and comply with any
    treatment or counselling as recommended by them to deal with his mental health
    issues; and attend and meet regularly with a mental health worker at the
    Canadian Mental Health Association for counselling.

[4]

The Crown appeals the sentence imposed and
    submits that the trial judge overemphasized the issue of mental illness and
    prospects for rehabilitation in deciding on a non-custodial sentence. While the
    Crown accepts that in exceptional circumstances a suspended sentence may be
    appropriate, it says that this is not such a case.

[5]

We disagree. In our view the trial judge properly
    considered the issues of mental health and rehabilitation together with several
    other mitigating factors and arrived at a fit sentence.

[6]

In
R.
    v. Prioriello
,
2012
    ONCA 63 at paras. 11  12
,
this court suggested that a causal link was required between mental
    illness and the criminal offence before a mental illness could be considered as
    a mitigating factor in sentencing.
Here, t
he inference of a mental health issue was
    available to the trial judge based on the materials before her, including the
    pre-sentence report. She was able, in our view, to properly infer that mental
    health played a causal role in the commission of the offence.

[7]

It is clear from the record that the respondent
    had a history of mental health issues. The pre-sentence report evaluates the
    respondent and describes his circumstances as follows:

What has brought
    this young man before the Courts, as a youth and now as an adult, are his
    identified mental health issues: Tourettes Syndrome, Attention Deficit
    Hyperactivity Disorder, Conduct Disorder and Obsessive Compulsive Disorder and
    his resulting behavior.

The factors that
    place the offender before the court and at greatest risk of recidivism are his
    mental health issues, peer group choices and substance abuse.

[8]

The record also supports the trial judges
    conclusion at para. 50 of her reasons, namely: To now impose a custodial
    sentence would likely destroy any progress that has been made by Mr. Hart with
    respect to his mental health and in my view serve no genuine societal
    interest.

[9]

The trial judge, at para. 25 of her reasons, set
    out the many aggravating and mitigating factors  one of which was mental
    health issues  that she considered and weighed in arriving at the sentence she
    imposed. We see no error in her thorough analysis.

[10]

Finally, when the issue of mental illness is
    taken into consideration along with the other mitigating factors  a guilty
    plea, the youth of the offender, the fact that he had no adult record, his show
    of remorse, that he had no further criminal charges since 2011, and that he
    cooperated with the police  the sentence is not manifestly unfit.

[11]

The trial judges decision is entitled to
    deference from this court and the appeal is dismissed.

J.C.
    MacPherson J.A.

Janet
    Simmons J.A.

H.S.
    LaForme J.A.


