R. v. Mahoney Date:, 2013 BCPC 234

Citation: R. v. Mahoney Date: 20130815 2013 BCPC 0234 File No: 223606-1-V Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JONATHAN MAHONEY EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. St. PIERRE Counsel for the Crown: R. Vlannigan Counsel for the Defendant: C. Muldoon Place of Hearing: Vancouver , B.C. Date of Judgment: August 15, 2013 [ 1 ] THE COURT: These are the reasons for sentence of Mr. Mahoney. It is now August 15. Back on July 12th, Mr. Mahoney

appeared before me for sentencing on Information 223606. That is an indictment that has, well, 10 counts on it, but Mr. Mahoney pled guilty to participating in a riot and to assaulting Robert James Mackay on the date in question which is June 15th, 2011, the day of the Stanley Cup Riot. [ 2 ] Mr. Mahoney's participation was characterized by Crown counsel closer to the higher level. The Crown sought, for his participation in the riot and the assault of Mr.

Mackay, who has been described, in a colloquial sense, a Good Samaritan who was a person trying to protect the Bay store downtown from further vandalism and damage and was assaulted by a number of individuals, the Crown says the appropriate sentence was eight to nine months in custody, that period of time to run concurrent plus probation. [ 3 ] There was in this sentencing hearing, as slightly different from most, there were no admissions of fact filed, but there were submissions of fact filed. There was a dispute over just how to characterize Mr. Mahoney's involvement in the assault of Mr.

Mackay with the video evidence being, obviously, the strongest testimonial witness to that event. [ 4 ] There were a number of things filed in this matter. There was Exhibit 1, the book of documents for the Crown. There is Exhibit 2, the DVD. Three were submissions of fact that were filed. Exhibit 4 was the context information surrounding the riot. Five was the list of other riots in Canadian history. [ 5 ] Denunciation and deterrence was a primary consideration, always is in these type of cases.

In this case, it was said that specific deterrence had a role as well. [ 6 ] The video evidence was carefully viewed and monitored. It shows that Mr. Mahoney was obviously caught up in the moment and, as everybody else was, he obviously was enjoying the mayhem and the chaos that was going on down there downtown on that night. [ 7 ] He is seen at various locations, but one of the locations he is seen is at 600 block West Georgia Street which is the most relevant area of participation for Mr. Mahoney. That is where the Bay was and Mr.

Mackay was there observing a large crowd gathering outside the Bay, and he was disgusted by the actions of some folks who were breaking the windows of the Bay and he decided to take it upon himself along with some other fellows to try to protect the Bay from further damage. [ 8 ] Mr. Mahoney was part of a group of rioters who were engaging in an attack of the windows of the Bay at that time. Mr. Mahoney took a metal pole and he was breaking the windows of the Bay. At one point in time, the metal pole was picked up by Mr.

Mahoney and he appeared to sort of poke it, and this is the area of contention, either towards the window that he was trying to break or Mr. Mackay, but the fact is, is that Mr. Mackay was standing so close to that area that it was reasonable for Mr. Mackay to believe that Mr. Mahoney was threatening to apply some force to him and that is just a reasonable inference to draw from the video. [ 9 ] It was a provocative move. Even if he did not mean to strike Mr. Mackay, it was still a provocative move that was so close to Mr. Mackay that Mr.

Mahoney, had he had his wits about him, would have known that it was going to have that effect of being a provocative move. [ 10 ] Mr. Mackay grabs the pole, pushes Mr. Mahoney back, and then is swarmed -- Mr. Mackay is swarmed by the mob and, apparently from the video evidence, it is quite clear that Mr. Mahoney plays a

part in pulling down Mr. Mackay to the ground where several other individuals including Blake, Dack, and Timleck assault Mr. Mackay further. [ 11 ] Mr. Mahoney is in the area for a little more than an hour. He is involved in a couple of other incidents where he approaches another individual and tries to -- it looks like tries to hit that individual. He is shown on several occasions cheering and celebrating, again, the mayhem that took place around him. [ 12 ] He is a young man. He is a hardworking young man. He was 23 years old, I believe, at the time. He took responsibility for his actions in this matter.

He was employed as an ironworker and I understand he has got some specific skills as an ironworker because he works on major projects around the country and, at his age, that is a significant accomplishment on his behalf. [ 13 ] He had a good and happy childhood. He did well in school. He did several attendances at the Northern Alberta Institute of Technology and he finished there in 2009 and he has a specialized certificate in steel erection. So he is an itinerant worker. So he works where the projects are. He has worked on B.C.

Place, Winnipeg Stadium, Calgary Airport expansion, and he has been a foreman at his young age on several jobs. He is, by all accounts, a very good worker, a reliable worker, and a loyal employee. [ 14 ] He also demonstrates his responsibility in other areas. He has purchased a few acres of land near his parents' house and he plans to build a house out there.

He advises the court that he does not have a particular issue or problem with alcohol or drugs, but he did cut back his drinking significantly in 2012 and, in fact, as of September 1st, 2012, he says he has quit drinking altogether. [ 15 ] He was arrested on this matter on September 25th, 2012, directly from camp, I think it was in Saskatchewan where he was at the time, arrested and flown out to B.C. I do not find that there is any negative inference to draw from the fact that the police went out to Saskatchewan to arrest Mr.

Mahoney. [ 16 ] It seems to me to be one of those situations where had the police -- and maybe this just is not their policy. I know from personal experience and practicing law in this area for many years that police do not like to just accept defence counsel's assertion or promise that they will bring their client in. So sometimes they feel it necessary to go out and arrest that person, but in this case, once the information was sworn, they did go out and arrest Mr. Mahoney. He likely would have come back voluntarily. [ 17 ] On the date in question, he admits he drank at his friend's place a lot.

He was intoxicated and then he planned to go home. He got to the SeaBus and decided to see what was going on downtown. He made the regrettable decision - I am sure he regrets it right now as he is joining us by video from Fraser Regional Correctional Facility, he regrets that decision to this day, and will, I am sure, for a long, long time, to go back downtown and get involved in this whole melee.

[ 18 ] He also received a significant amount of negative press in the media and was characterized as an individual who was, colloquially put, on the lam or had absconded from the hand of justice. Again, I do not characterize his decision-making or his actions during that period of time like that. [ 19 ] He has a conviction. He has a conviction on his record. He has an impaired driving conviction and the date of that offence dates back to October 8, 2010, and there is an obstruction charge that goes along with that conviction. That was out in Montreal.

So he comes before the court without the kind of clean record that some of the other individuals have come before the courts. [ 20 ] He spoke eloquently at his sentencing hearing and apologized to the court, to society, for his misbehaviour. He apologized to Mr. Mackay who was trying to help prevent the destruction.

He says, quite frankly, that he does not wish to ever suffer the extreme embarrassment that he suffered during this period of time because the coverage was quite extensive and his name and picture were in the newspaper for several days. [ 21 ] There are materials that were filed on his behalf from defence counsel noting the level of media scrutiny and public scrutiny that he was under and the level of coverage that he received.

He was described by some of these articles as "Suspect Number 1." I suppose that means he was the first person that was charged, but in any event, various headlines are like, "Police Arrest Number One Target in Stanley Cup Riot." [ 22 ] They said they had to go find him at a Saskatchewan mine; again, misleading, in my mind with respect to the actual facts. I would not describe this quite properly as a cross-country manhunt given the facts that I heard, but in any event, that is what was ascribed to him and trying to correct those facts, in this sentencing process, is not going to help Mr.

Mahoney because nobody is going to likely report this matter in the kind of fashion that he was exposed to in 2012. [ 23 ] That being said, Mr. Mahoney has to recognize, as a young man who has taken responsibility, that he is responsible for his actions that he committed on that day and the bad decisions which this case involved, plenty of them, come bad consequences, and he, I think, judging from what he said to the court and what his guilty plea represents, he is prepared to accept that and he agrees that he deserves the consequences that befell on him and which have been imposed on the last occasion.

So he has had to suffer that along with the significant extrajudicial consequences to his involvement in this matter and a factor to take into account. [ 24 ] I have read the victim impact statement. I have read, particularly, Mr. Mackay has obviously suffered. [ 25 ] I have the benefit of -- many authorities have come before these -- I think it has got to be at least 100 people that have been sentenced for this riot up to this point and many of those cases have commented on the seriousness of the event, and I am not going to restate those.

I have said in many cases myself how horrific this event was, a terrible example of civil disorder, the likes of which this country has rarely seen. [ 26 ] There are three people have been -- as I understand it, three people have been sentenced for the assault of Mr. Mackay currently. I think that -- [ 27 ] MR. FLANNIGAN: Mr. Mahoney -- Mr. Mahoney is the fourth. [ 28 ] THE COURT: He may be the fourth, that is right. [ 29 ] There is Mr. Dack who is on the information. He received five months for the assault on Mr. Mackay. There is Mr. Timleck who received seven months for the assault on Mr.

Mackay and five months for the riot to be served concurrently. Mr. Timleck is the fellow who went up behind Mr. Mackay and hit him on the back of the head three times. In that case, the Crown had sought a 15 to 18- month sentence for both the assault and the riot. [ 30 ] Mr. Blake was a young man who appeared to actually be connected somehow to Timleck, but he received eight months for assault with a weapon, to wit, the pepper spray that was used on Mr. Mackay. Mr. Mackay was pepper sprayed when he was down on the ground. [ 31 ] Timleck had a minor record and an outstanding charge. Blake was 22.

Those were the consequences for those individuals. Timleck and Blake had more significant antecedents or records than Mr. Mahoney did and, in my mind, more serious involvement in the assault, those two. [ 32 ] So you also have to take into account the mitigating circumstances: the guilty plea, Mr.

Mahoney's youth, the extrajudicial sanctions that he has had to suffer which are significant deterrent factors, as well, and that being the embarrassment of the significant media/press scrutiny that he has had to suffer. [ 33 ] You have to take into account that an imposition of a criminal record is a very serious penalty in this day and age, much more serious than it was 20 years ago.

Even though he has had a conviction for the impaired driving case, if you were to look at a record and see this on it, it is a much more serious matter and employers who do criminal records checks and look at this will think twice about whether they want to hire Mr. Mahoney. [ 34 ] I also have to take into account the Court of Appeal in Peepre and the facts of that case because that was a case that involved an assault, as well, and Mr. Peepre was an individual who had posed at the Versa which is one of the first vehicles that was damaged and the GMC in the initial rioting area.

He had participated in mocking the police. He threw debris and garbage in the police direction, not making any contact with them. [ 35 ] He had punched a man who was already on the ground. He apparently, and it was accepted by the sentencing judge, thought this man was in a fight with his friend and he was unaware that the man had been acting as a Good Samaritan. In any event, it is still a violent assault of a person during and in the context of a riot.

[ 36 ] He was identified and he confessed fully to the offence. He was 20 years old at the time. He had a good upbringing. He had attended UBC Political Science program. After the riot, he had made significant changes in his life, completed counselling and anger management, and he had no criminal record. [ 37 ] The Crown in that case sought a nine-month jail sentence. There was a 60-day intermittent sentence that was imposed by the trial judge concurrent on each charge, on the riot and the assault.

That case went to appeal and the Court of Appeal, while finding, as we all have been finding, that these cases are very serious and need to be treated seriously, did find that the sentence was not to be interfered with. [ 38 ] They found that Mr.

Peepre had not been afforded unwarranted leniency and, while a more significant sentence would satisfy some portions of public opinion, it would be inappropriate in the case, and that a first-time offender who is sentenced to what they characterize as a significant period of incarceration and lengthy period of probation, that that is a serious penalty and one that is not so lenient as to be unfit and requiring intervention by the court. [ 39 ] So in my mind, Mr. Mahoney lies somewhere between Mr.

Peepre and the two other individuals I mentioned, Blake and Timleck, in where an appropriate sentence lies because he does have a minor criminal record.

He was involved in the assault of what can only be characterized as a Good Samaritan. [ 40 ] There could not be any sort of mistake about that, and that, to me, adds a little bit of an aggravating factor to it from the circumstances in Peepre , and that is why based on those reasons and my consideration of his circumstances, all of the circumstances surrounding the case itself and his involvement, the principles of proportionality and parity with others who have been sentenced already, and taking into account the record, which again is a minor one, but still a criminal record, in my mind, the appropriate sentence was and what I handed to Mr.

Mahoney to start serving on the last occasion was a 90-day sentence for his participation in the riot and a 150-day sentence, which is about five months, for his participation in the assault on Mr. Mackay, both to run concurrently. [ 41 ] In my mind, that was a significant sentence, a significant deterrent to others.

It was appropriately placed, as far as proportionality goes, and parity, in the context of this riot and others who have been sentenced in this riot. [ 42 ] I gave him credit for 10 days that he had already served, and he had, at that time, 140 days to still serve, and those are my reasons for giving the sentence that I did on July 12th. [ 43 ] All right. Mr. Mahoney, do you have any questions about that? [ 44 ] THE ACCUSED: No. [ 45 ] THE COURT: Okay, did they give you a date?

Do you know what -- [ 46 ] THE ACCUSED: October -- the -- date -- date -- date for release? [ 47 ] THE COURT: Yes. [ 48 ] THE ACCUSED: October 13, I will be out of here. [ 49 ] THE COURT: October 13th? [ 50 ] THE ACCUSED: Yes. [ 51 ] THE COURT: Okay. All right, well, again, I think I said it the last time, but I wish you good luck and I trust that you are not going to get involved in anything like this ever again, but I hope that -- I hope that things go well for you when you get out and you have served your sentence and paid back your debt to society.

Good luck to you. [ 52 ] THE ACCUSED: Thank you, sir. [ 53 ] THE COURT: Okay. [ 54 ] MR. MULDOON: Thank you, Your Honour. [ 55 ] MR. FLANNIGAN: Thank you, Your Honour. [ 56 ] THE COURT: I am going to give you back this -- thank you, counsel. I am going to give you back this stuff. I do not know where to put it. All right. Thank you, counsel. [ 57 ] THE CLERK: Order in court. [ 58 ] THE COURT: And I guess, in addition to that, I had already given -- whatever -- can we have the record of proceedings? Was there -- in addition to that? [ 59 ] MR.

FLANNIGAN: There was a -- oh, there was a victim fine surcharge -- [ 60 ] THE CLERK: A surcharge, yes. [ 61 ] MR. FLANNIGAN: -- of $2,000, an -- [ 62 ] THE COURT: Right, an enhanced victim fine surcharge.

[ 63 ] MR. FLANNIGAN: -- enhanced victim fine surcharge, and a DNA order. [ 64 ] THE COURT: Yes, right, okay. Yes, that is on the record already. Okay, thank you. [REASONS FOR SENTENCE CONCLUDED]