R v Rodriguez Huerta, 2023 ABCJ 103

In the Alberta Court of Justice Citation: R v Rodriguez Huerta, 2023 ABCJ 103 Date: 20230509 Docket: 210969499P1 Registry: Calgary Between: His Majesty the King - and - Sebastian Rodriguez Huerta Decision of the Honourable Justice P.J. Mason [ 1 ] On May 3, 2023, the Court delivered an oral decision on sentence. At the time I indicated that I would convert it to written reasons shortly thereafter. These are those written reasons. Introduction [ 2 ] Mr. Rodriguez Huerta was charged because of a series of events that took place in the early hours of July 1, 2021.

After an investigation, the Calgary Police Service (CPS) executed a search warrant of the accused’s residence on September 14, 2021, and he was arrested. The Crown proceeded summarily. The accused entered a guilty plea before this Court in August of 2022. A Pre-Sentence Report was ordered and prepared. The Court heard arguments from both counsel in January of 2023. The Crown was seeking a suspended sentence and probation. The Defence sought a conditional discharge. There was no joint submission. [ 3 ] The matter was put over for decision on sentence in March 2023.

On that date, the Court expressed its reservations about the positions taken by counsel, made further inquiries, and heard further argument. [ 4 ] The matter was then adjourned to today’s date for the Court to conclude its deliberations on the appropriate sentence for this crime. [ 5 ] The Court has considered all of the cases put forward by counsel.

Facts [ 6 ] On June 30, 2021, the Accused and others consumed media reports that identified possible unmarked graves on the grounds of a residential school in British Columbia. As a result, they took several calculated steps to punish a group they perceived as evil. [ 7 ] First, they obtained red paint. Second, they found empty plastic bottles and filled them with paint. Third, they travelled to four different Christian churches in the city of Calgary: St. Mary’s Cathedral, Grace Presbyterian Church, Sacred Heart Church, and St. Elizabeth of Hungary Church.

Fourth they proceeded to vandalize each church by throwing the bottles filled with red paint. The damage included paint on the grounds, the exterior and interior of some of the buildings, and broken windows. [ 8 ] St Mary’s Cathedral was hit by the assailants at around 2:29am on July 1. [ 9 ] St. Elizabeth of Hungary was attacked at an unknown time, but the Accused admitted that it was the second church attacked on July 1. The church estimated its damages to be around $2000. [ 10 ] Grace Presbyterian was targeted at about 2:53am. [ 11 ] Sacred Heart was attacked at approximately 3:18am.

The attackers also vandalized a statue of Jesus Christ, covering it in red paint. [ 12 ] The Accused also admitted he was the person who had obtained the paint used in the attacks. Issues [ 13 ] The only issue before this Court is what is a fit sentence for Mr. Rodriguez Huerta? Law [ 14 ] Section 430(4.1) of the Criminal Code deals with the offence of mischief related to religious property and educational institutions. Analysis [ 15 ] Mischief, in these circumstances, is a hybrid offence, and the Crown is required to make an election on how to proceed.

For this particular offence, where the Crown proceeds by indictment, the maximum sentence is 10 years. Here, as mentioned above, the Crown proceeded by

summary conviction procedure. [ 16 ] Suffice it to say that mischief is an offence that can cover a broad array of conduct and, accordingly, the sentences imposed on such convictions is similarly broad. However, there can be no doubt that Parliament viewed attacks on religious property and educational institutions as a more serious subset of mischief overall.

For other types of property, where the Crown has proceeded by indictment, the maximum punishment is 2 years. [ 17 ] Section 430(4.1) is specifically worded to deal with the commission of the offence “being motivated by bias, prejudice or hate based on (inter alia) ... religion.” [ 18 ] The codified sentencing principles are set out in ss. 718, 718.1 and 718.2 of the Code .

The fundamental purpose of sentencing is to contribute ... to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions with one or more of the following objectives: denunciation, deterrence, separation of offenders from society where necessary, rehabilitation, reparations for harm done, promotion of a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community. [ 19 ] The Fundamental Principle in sentencing – proportionality – is set out at s. 718.1 and seeks to ensure that a sentence is to be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 20 ] Justice Lebel in R v Ipeelee , 2012 SCC 13 said at para 35-37 : The Criminal Code [lists] a number of principles to guide sentencing judges.

The fundamental principle of sentencing is that the sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender. As this Court has previously indicated, this principle ... has long been a central tenet of the sentencing process ... It also has a constitutional dimension, in that s. 12 of the Canadian Charter of Rights and Freedoms forbids the imposition of a grossly disproportionate sentence that would outrage society’s standards of decency.

In a similar vein, proportionality in sentencing could aptly be described as a principle of fundamental justice under s. 7 of the Charter . ... Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code , the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction. [ 21 ] Justice Lebel’s position was endorsed by the SCC in R v Lacasse 2015 SCC 64 where the Court stated: Sentencing remains one of the most delicate stages of the criminal justice process in Canada.

Although this task is governed by ss. 718 et

seq. of the Criminal Code , R.S.C. 1985, c. C-46 , and although the objectives set out in those sections guide the courts and are clearly defined, it nonetheless involves, by definition, the exercise of a broad discretion by the courts in balancing all the relevant factors in order to meet the objectives being pursued in sentencing. [ 22 ] The Alberta Court of Appeal in R v Arcand 2010 ABCA 363 went onto discuss the two components set out in 718.1 – the gravity of the offence and the degree of responsibility of the offender. They said: What is meant by “gravity of the offence”?

This concept is directed to what the offender did wrong. It includes two components: (1) the harm or likely harm to the victim; and (2) the harm or likely harm to society and its values... The “degree of responsibility of the offender” as used in s. 718.1 certainly includes the mens rea level of intent, recklessness or wilful blindness associated with the actus reus of the crime committed. ... The greater the harm intended or the greater the degree of recklessness or wilful blindness, the greater the moral culpability.

However, the reference in s. 718.1 is not simply to the “ mens rea degree of responsibility of the offender” at the time of commission of the crime. Parliament evidently intended “degree of responsibility of the offender” to include other factors affecting culpability. These might relate, for example, to the offender’s personal circumstances, mental capacity or motive for committing the crime. [ 23 ] More recently the SCC in R v Parranto 2021 SCC 46 [17] Sentencing ranges generally represent a

summary of the case law that reflects the minimum and maximum sentences imposed by trial judges in the past ( Lacasse , at para. 57 ; Friesen , at para. 36). They “provide structure and guidance and can prevent disparity”, while leaving judges space to “weigh mitigating and aggravating factors and arrive at proportional sentences.” Gravity of the Offence [ 24 ] When dealing with the gravity of the offence, it is important to look at the totality of the events on the night in question and carefully analyze the offence. [ 25 ] The offence here was, in actuality, four targeted acts of violence. It was premeditated.

It involved planning and deliberation. The offenders were calculating in their targets and the execution of the acts. There was time to reflect between each attack and to allow the offenders to stop. The cumulative effect of four attacks was brazen and meant to be intimidating. It was callous and gratuitous. [ 26 ] The Accused and his cohorts, sought to punish four random Christian churches for no other reason than they were Christian churches.

In a gross misjudgement, the perpetrators heard there were unmarked graves at a residential school run by a Christian church in an entirely different province and decided that the closest available Christians in Calgary should be punished for these misdeeds. [ 27 ] The only reason to target these institutions was their proximity and their association with the Christian faith in general. The perpetrators were engaged in a rudimentary form of guilt by association.

For the victims, the attacks would have seemed shocking, unexpected, and random despite the surrounding context of the unmarked graves revelations. [ 28 ] The supposed purpose of the vandalism was to condemn the perceived atrocities. Condemning atrocities is entirely appropriate but, in a free and democratic nation, only if it is done peacefully; and only if it is based on a rational connection between the sites being protested and the atrocities committed. [ 29 ] Further still, the best way to condemn atrocities is not to commit violence against others.

Violence only fuels the cycle of evil and violence that was the subject matter of the attacker’s condemnation. [ 30 ] Additionally, an associated purpose of such violence is to frighten and intimidate the people who belong to the churches that are attacked. Again, it bears noting that the congregations of the churches in question did not participate in the known violence that occurred in residential schools. In fact, it is almost certainly the case that those congregants would have been equally or more horrified by abusive acts carried out by people who identified as belonging to the Christian faith.

So, in essence the perpetrators were attacking innocent people, who were their neighbours and fellow Calgarians, who would have shared their revulsion at the acts being committed in residential schools. [ 31 ] All of this leads the Court to conclude that the gravity of the offence is substantial. Degree of Responsibility of the Offender [ 32 ] Mr. Rodriguez Huerta was an organizer of the attack.

He obtained the paint, participated in the filling of the plastic bottles with paint and throwing them at the churches, in essence desecrating the sites themselves including a statue of Jesus. [ 33 ] Reviewing the Accused’s own statements to police, in a properly Charter ed and cautioned interview after his arrest, he admitted to being motivated by the treatment of indigenous people, his animus to the Catholic church and his support for the indigenous community. Mr.

Rodriguez Huerta would have been better off to have continued his good works for the indigenous community than become an architect of the offence coloured with hatred for the Christian faith. [ 34 ] The Court noted that the Accused was originally from Venezuela, identified as an indigenous person from that country and was raised as a Catholic. His feelings of betrayal by that institution were palpable. [ 35 ] Indigenous and marginalized communities need the help of well-meaning people genuinely interested in their plight, working towards solutions that lift these communities out of poverty, injustice and neglect.

What they do not need is the avenging anger of

middle-class university students who feel the adrenaline rush of a violent and aggressive act designed to bring some perverse favour and glory to the protestor rather than actually assisting the marginalized community. [ 36 ] There is no hierarchy of hate. Hate cannot be justified or rationalized based on some notional higher moral motivation. All that hate does is breed more hate. It is a human emotion and, accordingly, it is found in every sector of humanity.

There is no grouping of humans (however they wish to categorize or create associations for themselves) that can lay legitimate claim to an absence of hate in their lives. If it is allowed to flourish in one, it can flourish in all. Hate crimes must be confronted with calm and resolve. [ 37 ] What is needed to combat hate? Sympathy, empathy, and compassion are significant tools in the arsenal against hate. These concepts, and many others, are found at the core of most religions, including Christianity. That is why religion can be a force for positive steps against hate and other evil.

Jesus Christ once said “Love thy neighbour as thyself.” Sadly, it cannot be denied that some people working in residential schools have not lived up to that simple commandment. That does not mean that all of those of the Christian faith should be attacked and terrorized for those failings. [ 38 ] The Court noted that Mr.

Rodriguez Huerta is a student of the University of Calgary, a Representative of the Faculty of Arts Students Association (FASA), a co-founder of the Alberta Coalition for Affordable Tuition (ACAT), a member of Students for Direct Action (SDA), a member of the Food Justice Now project, and a Patrol Lead for the Bear Clan Patrol. These are useful organizations in a democratic society. To highlight the absurdity of Mr.

Rodriguez Huerta’s conclusion that the four churches of Christian faith in Calgary are somehow responsible for the residential school crisis and should receive punishment, the Court need only suggest that an equally absurd response to this offence would be to paint all of those organizations to which he belongs with the brush of vigilante, hate- based vandalism. [ 39 ] Education is meant to be a civilizing and humanizing process that empowers individuals to gather knowledge, understand their place in the world, and work towards a better outcome in the future.

The fact that the Accused is an educated man, with an interest in indigenous communities should have led him, and did lead him, to engage in constructive pathways to assisting those communities. Unfortunately, it also appears to have led him to the conduct that finds him before these courts. He was engaged in Criminal Justice studies at one stage. He became disillusioned with the justice system and moved to a different area of study. There are many reasons why people are disillusioned with the justice system. Some of them may well be valid reasons.

Like any human system, it is not perfect and is in need of care and attention. However, that does not mean that the system is irretrievably broken or otherwise unworthy. The principles of the system, including the rule of law, still allow the system to operate in times of neglect and stress. [ 40 ] In this case, there was a crime committed. The Accused was investigated. The investigation led to a search warrant that obtained further evidence which supported a conclusion that the Accused had committed the crime. After he was arrested, he was given his Charter Rights and the opportunity to contact a lawyer.

He provided a statement to the police freely and voluntarily. Subsequently, he was charged and brought before the Court. He was given disclosure so that he knew the case against him. He had access to professional legal advice and assistance to help him navigate the system. Prior to his guilty plea he was entitled, and received, the benefit of the presumption of innocence.

This would have necessitated the state to prove the case against him beyond a reasonable doubt, before a fair and impartial tribunal. [ 41 ] However, having received his legal advice, given with the benefit of receiving the Crown’s case against him, the Accused pled guilty to the charge. There was no police misconduct in gathering evidence, no arbitrary detention by the police, nor force used to extract a confession.

There was a proper investigation, without political or other improper interference. [ 42 ] The prosecution was carried out without interference as well. [ 43 ] This Court, because of the principle of judicial independence, was able to adjudge what is the appropriate sentence based on laws duly passed by the legislature and case law, handed down over time, interpreting those laws. [ 44 ] This process may have its flaws, and errors, but it is the best way we have devised thus far to keep the people of Canada protected from unlawful state intrusion as citizens of a democratic, free and law-abiding country.

Canada has its faults, but it is prepared to face them openly and make attempts to improve how it handles injustice and unfairness. [ 45 ] The justice system in Canada is part of the whole of the Canadian state that must be doing something right. We have people from all over the world, including the Accused and his family, who chose to come here because it was a safer and fairer place to live with the opportunity to build a better life. His family fled Venezuela where none of the benefits set out above exist in any real fashion. It is a dangerous and lawless place where might makes right.

Having been the beneficiary of many of the positive aspects of the Canadian model, the Accused chose the way of violence, lawlessness, and intimidation that his family sought to flee from in Venezuela. [ 46 ] Hate crimes of any kind must be sanctioned with sufficient severity to signal to the individual offender that their conduct is to be denounced in a clear and unequivocal way; and to send the message to others of similar ilk, that their conduct will be dealt with equal commitment to justice and the protection of the victims of such crimes. [ 47 ] The Court accepted Mr.

Rodriguez Huerta’s guilty plea and subsequent expressions of remorse as mostly genuine. However, there was an underlying current of justification that lingered here, as he had indicated through counsel that he wanted to have the opportunity to meet with the congregations of the churches to give them his perspective. That will not happen here. No victim of hate crime should be subjected to further contact with the perpetrator of such a crime; and make no mistake – this was a hate crime.

Seeking to justify the behaviour to the victims would be a continuation of the attack. [ 48 ] Further, an attack on any religion is an attack on all religion. [ 49 ] The Court, when balancing all of these factors, was not persuaded that a conditional discharge was appropriate. While it would obviously be in the Accused’s best interest, it would be contrary to the public interest. There must be a record of the crime and the punishment imposed.

[ 50 ] The Court is mindful of the potential for collateral consequences, including the potential for effects on the Accused’s chosen field of employment, but such collateral consequences are not sufficient to justify the reduction of the penalty imposed here to the lower threshold of the conditional discharge. [ 51 ] Additionally, when the Court considered dealing with primary requirement for denunciation and deterrence, and the secondary principles of the promotion of a sense of responsibility in the Accused, and an acknowledgment of the harm done to the community, that analysis led to the conclusion that a suspended sentence and probation would not be sufficient either. [ 52 ] The Court concluded that a custodial sentence followed by a probationary sentence would be the fit sentence.

However, the analysis also supported the conclusion that the custodial portion of that sentence would not need to be served in a penal institution. When looking at the degree of responsibility of the offender, the gravity of the offence, and bringing into the play the sentencing principles of rehabilitation and restraint, the concept of a short Conditional Sentence Order followed by probation would meet all of the sentencing goals. This is in line with the recent changes made by Parliament to expand the opportunities for Courts to use Conditional Sentence Orders.

Conclusion [ 53 ] The Court hereby imposes a CSO of 3 months followed by a period of probation for 9 months. A 3-month sentence might well be larger period of time that a Court would give in a custodial institution, but the Courts are allowed to make CSO longer than real jail sentences given the lesser form of punishment that community-based incarceration is in comparison to real jail.

The Court notes that the total time under supervision is one year and is consistent with what was sought by the Crown and Defence. [ 54 ] Before proceeding to impose terms, I am prepared to hear any further submissions from Counsel on terms and conditions for both the CSO and probation. Delivered Orally on the 3 rd day of May, 2023. Dated at the City of Calgary, Alberta this 9 th day of May, 2023. P.J. Mason A Justice of the Alberta Court of Justice Appearances: William Tran for the Crown Chad Haggerty for the Accused