Arson usually requires jail time

Today’s decision in R. v. Mirzakhalili, 2009 ONCA 905 reaffirms the long established principle that, in general, arson cases require a term of incarceration. This is because gravity of the offence merits a significant consideration of general deterrence and denunciation; it should be noted that this requirement may not be applicable in youth matters because of the differing sentencing considerations involved. The Court held:

This court has consistently held that conditional sentences are not appropriate for serious arson offences: see, for example, R. v. Fox, [2002] O.J. No. 2496 and R. v. Hirnschall (2003), 176 C.C.C. (3d) 311. In Hirnschall, Laskin J.A. said at paras. 24-26:

I have little doubt that the conditional sentence was “demonstrably unfit” when it was imposed. I agree with the Crown that it did not reflect either the gravity of the offence or Mr. Hirnschall’s moral blameworthiness. The catalogue of considerations in favour of a jail term was overwhelming. Mr. Hirnschall destroyed a local landmark; he put the lives of several fire fighters at risk; the fire destroyed one business and caused financial hardship to many others; and Mr. Hirnschall committed the offence entirely out of greed, his desire to reap the benefits of the insurance proceeds.

Moreover, other than the absence of a previous criminal record, little can be said in mitigation. Mr. Hirnschall has shown no remorse. He led no evidence to suggest jail posed any greater risk to his health. The trial judge ought to have sentenced him to a term of imprisonment.
Indeed, a conditional sentence for Mr. Hirnschall seems out of step with the recent judgments of this court in arson cases. An example is R. v Fox, [2002] O.J. 2496 (QL) (Ont. C.A.), a seemingly less serious arson