R. v. Williams Date:, 2012 BCPC 345

Citation: R. v. Williams Date: 20120921 2012 BCPC 0345 File No: 223500-1-V Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LINCOLN RAY KENNEDY WILLIAMS EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. F. GALATI Counsel for the Crown: D. Porte Counsel for the Defendant: M. Shapray Place of Hearing: Vancouver , B.C. Date of Judgment: September 21, 2012 [ 1 ] THE COURT: Mr. Kennedy-Williams has pleaded guilty to participating in the so-called Stanley Cup Riot which occurred on

June 15th of 2011. The issue is what will constitute a fit sentence. [ 2 ] The details of the circumstances of the riot and the resultant impact of the riotous behaviour are notorious and have been described in several judgments of this court previously given. Suffice it to say that many people engaged in profligate and wanton misbehaviour characterized by acts of violence, arson, vandalism, and looting. [ 3 ] The resultant property damage was extreme. The international attention attracted by this event has sullied the reputation of the City of Vancouver.

It was a large-scale riot with large-scale consequences which, thankfully, did not include significant physical injury or death. [ 4 ] Mr. Kennedy-Williams was one of the many thousands of people who watched the hockey game at least in part on the big screen in the vicinity of the Vancouver Public Library. Like many others, he consumed alcohol as he was doing so. He was present as the riot began in that area. He saw fighting break out, the over-turning of portable toilets, and the burning of the first vehicle which was set on fire in front of the post office. [ 5 ] Shortly thereafter, Mr.

Kennedy-Williams became an active participant in the riot. Notwithstanding the fact that the police were present and attempting to keep the peace, Mr. Kennedy-Williams approached the other vehicle parked in front of the post office, a GMC pickup, and joined others in trying to overturn it. [ 6 ] A good Samaritan, a Mr. Albert Easterbrook, tried to intervene to stop the crowd's attack on the GMC and was beaten for his efforts. Mr.

Kennedy-Williams was not involved in that incident, but he was there and very likely aware of it having occurred. [ 7 ] The police cleared the area in the vicinity of the GMC and fire fighters put out a small fire that had been set inside the cab, but as they moved on, the rioters once again attacked the vehicle. Mr. Kennedy-Williams took a metal pole from the back of the pickup, struck at the taillights, and eventually succeeded in smashing the rear window. He then became part of a group that managed to overturn the GMC. [ 8 ] The rioters and many of the numerous observers were jubilant.

Several persons had climbed on top of the truck, but had got off shortly after Mr. Kennedy-Williams removed the gas cap which resulted in gasoline pouring out of the overturned truck. He and a couple of other men tried to light a stuffed bear on fire. All the while, many in the crowd were chanting, "Light it up." Eventually, the individual holding the stuffed bear threw it into the gasoline and set it on fire. A large blaze immediately engulfed the pickup and the crowd backed away. Mr. Kennedy-Williams and others then proceeded to throw various items on the burning truck. [ 9 ] As the police moved in again, Mr.

Kennedy-Williams left the immediate area, but in the process of doing so, he kicked in a glass door of the post office. The video images depict Mr. Kennedy-Williams as brazenly defiant of the police and intent on the destruction of the GMC. He appeared to be driven and to be enjoying himself. [ 10 ] The GMC, which the owner, a Mr. Roy Hermanus, had restored to almost new condition was completely destroyed. Mr. Hermanus also, unfortunately, was the owner of the first vehicle which had been destroyed by the rioters. Given that the overall loss to Mr.

Hermanus was somewhere in the order of $30,000 including tools that were in the vehicles, not all of that loss was covered by insurance. [ 11 ] Mr. Hermanus on that day was engaged in servicing fire protection equipment at the post office and he was not permitted to move his vehicles once the large crowd had gathered. Together with Canada Post employees and others, Mr. Hermanus was locked down inside the post office and watched helplessly as his property was destroyed and the post office itself was attacked.

Needless to say, this was a traumatic event for all of those people in the post office and, in particular, for Mr. Hermanus who was most directly affected. [ 12 ] Mr. Kennedy-Williams is 22 years old. He has no prior criminal record, is a high school graduate, and has recently completed the fourth year of his apprenticeship as an automotive service technician. He aspired to a career as a fire fighter, but he realizes that may no longer be a realistic possibility for him. [ 13 ] From the various materials which have been filed and on the submissions of counsel, it appears that Mr.

Kennedy-Williams had a difficult early life. His biological father had substance abuse issues and left the family home when Mr. Kennedy-Williams was about two years old. The stepfather who next came into his life was abusive and disinterested in him. His mother worked as she was required to and apparently had some issues of her own to deal with. Mr. Kennedy-Williams did not do well in school, but managed. [ 14 ] His lot improved when his first stepfather was no longer in the picture at approximately age 11.

Notwithstanding, he was subsequently, in the course of his schooling, diagnosed with some form of attention disorder, but his present stepfather came into his life as a positive influence and it appears that Mr. Kennedy-Williams' adolescent and teen years were much better with social and sports- related successes. [ 15 ] In his mid-teens, he embarked on a relationship with a girlfriend which lasted for seven years. In his late teens, he tried to forge a closer relationship with his biological father who, at that point, had his issues somewhat under control. Mr.

Kennedy-Williams has been steadily employed since his high school years and has progressed well towards his certification in his chosen field. [ 16 ] In September of 2010, Mr. Kennedy-Williams learned that his biological father had relapsed which ultimately led to the termination of the relationship that he had to that point fostered with him. In January of 2011, his seven-year relationship with his girlfriend ended. [ 17 ] In early Spring of 2011, his second stepfather, who had been in his life since about age 13 and with whom Mr. Kennedy- Williams had become close over time, made a serious suicide attempt.

During roughly the same period of time, there was also increased tension at Mr. Kennedy-Williams' workplace where his boss was the father of his ex-girlfriend. This is a brief synopsis of where Mr. Kennedy-Williams was in his life shortly before the June 15th, 2011, riot.

[18] In a comprehensive psychological assessment report, Dr. David Fairweather refers to research which indicates that, in largegroups, individuals are vulnerable to act in unison with what is happening within the group and in a manner that would otherwise beuncharacteristic for them including engaging in actions that violate ordinary societal norms. [19] With respect specifically to Mr. Kennedy-Williams, Dr.

Fairweather gave the following opinion, and I quote: To summarize more specifically, in the escalating chaotic group pandemonium that developed post-Game 7 on June 15th, 2011, mysense is that a combination of factors contributed to disinhibiting Mr.

Kennedy-Williams including a misperception of anonymity andaccompanying misjudgment that the usual rules of conduct did not apply, the de-individuating effects of many others' unruly behaviouraround him combined with the alcohol in his system and considering also his personal history of childhood abuse and trauma, hischaracteristically meek and unassertive personality style, and perhaps most importantly, the ongoing stressful impact of recent andpainful family relationship and work-related stressors that he was struggling to cope with to that point that an underlying defiance andanger burst forth and manifested in the form of exceedingly poor judgment and negative aggressive behaviour on his part over anextended period of time. [20] Dr.

Fairweather relies on clinical impressions, psychological test findings, and collateral information as strongly supportive ofthe conclusion that Mr. Kennedy-Williams is a low risk to reoffend and he suggests that a custodial sentence would potentially do moreharm than good to Mr. Kennedy-Williams' ongoing efforts to work toward a more positive future for himself. [21] Certainly, the numerous letters of reference provided on behalf of Mr. Kennedy-Williams support the conclusion that on June15th of 2011 he behaved uncharacteristically and that soon afterwards he felt very ashamed and remorseful.

In this regard it is, in myview, very important to note that Mr. Kennedy-Williams did not, unlike many others, wait to see if he would be caught. [22] After spending what he described as a guilt-ridden night, he advised his parents of what he had done. The next day he soughtthe advice of a police officer acquaintance which ultimately led to an appointment with the police the following day, at which time headmitted the worst of his involvement in the riot.

He did not mention kicking in the glass door of the post office, but I accept hisexplanation that he had no recollection of that particular until he saw the video in court. [23] After confessing, Mr. Kennedy-Williams wrote letters of apology to Mayor Robertson on behalf of the City of Vancouver,Chief Constable Chu on behalf of the Vancouver Police Department, Fire Chief McKearney on behalf of Vancouver Fire and RescueServices, and to the Vancouver Canucks. All of these letters included an apology to Mr. Hermanus of whose identity Mr. Kennedy-Williams was not aware. [24] In part, Mr.

Kennedy-Williams wrote as follows: Right after my

part in the above-mentioned incident, I realized what I did was so wrong. I went straight home while the ensuing chaoscontinued. During the night, I was overcome with anxiety and was unable to put my shameful mind to rest. I was filled with guilt and aneed to take responsibility. [25] Fire Chief McKearney by letter communicated his acceptance of Mr. Kennedy-Williams' apology noting that havingimmediately taken responsibility for his actions was demonstrative of his integrity and personal accountability. I agree. I do not doubtthat Mr.

Kennedy-Williams is acutely ashamed and embarrassed and that he is genuinely remorseful. His behaviour fuelled by alcohol isinexplicable perhaps other than as postulated by Dr. Fairweather. [26] In his letters of apology, Mr. Kennedy-Williams says he does not understand how he went from being a normal guy who wentto work every day to someone who did what he did that night. He says he does not recognize that person, but he agrees that he isaccountable for what that person did. [27] The Crown seeks a sentence of imprisonment for six months followed by probation with community work service. Mr.

Portesubmits that a longer sentence of imprisonment would be appropriate given Mr. Kennedy-Williams' level of participation in the riot, butacknowledges that some restraint is warranted given his prior good character, acceptance of responsibility and expressions of remorse. [28] Mr.

Porte further submits that a conditional sentence would not in all of the circumstances of this case properly address thesentencing objectives of denunciation and deterrence, particularly because of the context of the riot, the dangerous nature of Mr.Kennedy-Williams' level of participation and the need to address the increased recurrence of riotous behaviour. [29] On behalf of Mr. Kennedy-Williams, Mr.

Shapray's primary submission is that a conditional sentence is appropriate, but if thecourt is not so persuaded then a jail sentence which can be served intermittently is sufficient to address the objectives of denunciationand deterrence. By law, an intermittent sentence cannot be longer than 90 days. [30] The purpose and principles of sentencing are set out in s. 718 through 718.2 of the Criminal Code. The parties have providednumerous cases in support of their respective positions.

I will only mention a very few of them, but the casebook indices will beprovided and placed in the court file where they will remain. [31] In the cases involving large-scale riots, including those with respect to this particular riot, a sentence of incarceration has almostalways been imposed, the exceptions being R. v. Snelgrove, 2012 BCPC 235, and R. v. Burkett, 2012 BCPC 315, which resulted inconditional sentences, and R. v. Cacnio, 2012 BCPC 314, which resulted in a probationary sentence.

The facts in Snelgrove and Cacnioare too dissimilar to the case at bar for the results in those cases to be usefully considered. [32] With respect to an appropriate sentence in this case, Mr. Porte relies primarily on R. v. Loewen, (BC CA), 75

C.C.C. (3d) 184, a 1992 decision of the British Columbia Court of Appeal. In Loewen, a sentence of six months imprisonment wasimposed by the majority on a first-time offender who participated in a somewhat large-scale riot largely by engaging in the destruction ofproperty. Mr. Porte characterizes Loewen as a similar case with a similar offender and submits that a similar sentence should be imposedon Mr. Kennedy-Williams. [33] Mr. Porte also relies on Loewen for the proposition that in large-scale riot cases the paramount sentencing objective is generaldeterrence.

Certainly, that was the conclusion of all three members of the panel in Loewen with a difference of judicial opinion being inrespect to what would constitute a fit sentence to meet that objective in the particular circumstances of that case. [34] I do not read Loewen as establishing a starting-point sentence for participating in a large-scale riot or as authority for theproposition that general deterrence in such a case can only be achieved through incarceration. In light of the sentencing options availablein 1992, the majority of the British Columbia Court of Appeal held, in the words of Mr.

Justice Hinds at paragraph 13, that in thecircumstances of that particular case a custodial sentence, "Will recognize the principle of general deterrence." [35] In any event, a subsequent codification of the principles of sentencing and the advent of conditional sentences significantlychanged the perspective for judicial consideration of general deterrence. Parliament at the time saw fit to place a greater emphasis ondecreasing the use of incarceration and that is specifically reflected in subparagraphs (

d) and (

e) of s. 718.2. [36] This was recognized by Justices Cory and Iacobucci of the Supreme Court of Canada in R. v. Gladue, (SCC),[1999] 1 S.C.R. 688, at paragraph 48, where they noted that two of the main objectives of Parliament were to reduce the use ofimprisonment as a sanction and to expand the use of restorative justice principles.

That viewpoint was adopted by the entire court in R. v.Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61, and it was expanded upon in paragraphs 14 through 20 of that decision. [37] In my view, where there may have previously been room for debate, the current statutory provisions and the jurisprudence inrelation thereto make it abundantly clear that a sentencing court must take into account all of the codified sentencing objectives and, ineach particular case, determine an appropriate balance.

The only exceptions are where Parliament has imposed minimum sentences orhas specifically mandated, as in ss. 718.01 and 718.02, either the types of offences or specific offences where the court must giveprimary consideration to the objectives of denunciation and deterrence. [38] I do not mean to suggest that Loewen is no longer relevant, only that its message must be interpreted in accordance with thelegal landscape as it presently exists.

Loewen and the cases which have applied it or referred to it are useful as judicial guidelines for anappropriate sentence for youthful first-time offenders who have participated in a riot. As noted by Mr. Justice Watt of the Ontario Courtof Appeal in R. v.

Jacko (2010), 2010 ONCA 452 , 256 C.C.C. (3d) 113, at paragraph 82, and I quote in part: To consider guidelines as constituting a de facto minimum sentence is inconsistent with the fundamental principle of proportionality, andamounts to either judicial creation of a category of excluded offences or a presumption that conditional sentences are inappropriate forcertain offences. Both are wrong. [39] I do agree with Mr. Porte that Loewen is a similar case with a similar offender, but the same can be said of several of thecontemporaneous riot sentencing cases having come from the June 15th, 2011, riot.

In Burkett, the sentence was a three-monthconditional sentence followed by probation. In Peepre, 2012 BCPC 328, the sentence was 60 days intermittent followed by probation. In R. v. Alviar, 2012 BCPC 181, the sentence was imprisonment for one month followed by probation. In R. v. Patillo, the sentence was45 days intermittent. [40] In these cases, my colleagues have reviewed the statutory provisions and the case law. They have taken into account theobjectives of denunciation and deterrence as well as restorative objectives and the principle of restraint.

In each case, this analysis hasbeen performed through the lens of the different background and circumstances which pertained to the particular offender as well as theirrespective levels of participation in the riot. The sentences imposed may appear to be somewhat disparate, but unless the Court ofAppeal says otherwise, each case contributes to the guideline range in this jurisdiction of appropriate sentences for young persons withno prior record who participated in the June 15th, 2011, riot, at least those whom participated primarily by engaging in acts of vandalism. [41] With respect to Mr.

Kennedy-Williams, I am unable to conclude that a conditional sentence is appropriate. The video imagesdepict him as brazenly defiant of the police and intent on the destruction of the GMC. He acted entirely without consideration of thedangerous situation he helped create or the resultant property damage. The image of the blaze which erupted when the GMC was setalight and of people jumping back from the immediate area is probably forever going to remain with him. [42] I do place some weight on the explanation postulated by Dr. Fairweather and accept that it somewhat mitigates the conduct ofMr.

Kennedy-Williams, but the degree of moral culpability which remains is significant. The corresponding need to communicatesociety's condemnation of his conduct is pressing in the context of what was going on in this large-scale riot. In my view, the onlysuitable way to express that condemnation is by a sentence of incarceration which will also, as in Loewen, recognize the objective ofgeneral deterrence.

This is the only type of sentence which in the circumstances of this case will accord with proportionality, thefundamental principle of sentencing, which in layman's terms requires that the sentence fit the crime. [43] Although I view the position taken by Mr. Porte with respect to the length of sentence to be entirely reasonable, I am inclined togive greater consideration to the principle of restraint, particularly because Mr.

Kennedy-Williams was extremely proactive in turninghimself in and thereby accepting responsibility, as well as his youth and prior good character. [44] The least restrictive sanction that is, in my view, reasonable and appropriate in the circumstances is a term of imprisonment thatcan be served intermittently together with a probation order to provide for reparations by way of community work service which,hopefully, will also promote the sense of responsibility which Mr. Kennedy-Williams was oblivious to when he participated in the riot. [45] Please stand up, Mr. Kennedy-Williams.

[ 46 ] I sentence you to 90 days imprisonment which may be served intermittently commencing today and continuing until 5:00 p.m.

Sunday, September 23rd, 2012, and thereafter on consecutive weekends commencing 7:00 p.m. on Friday and continuing through 5:00 p.m. on Sunday until your sentence has been completed. [ 47 ] While you are not in custody, you will be bound by a probation order for a period of 15 months. [ 48 ] In addition to the statutory conditions which will all be read and explained to you, you must perform 100 hours of community work service within the first 12 months of the probation order as directed by your probation officer and, for that purpose, you are to report to a probation officer at 275 East Cordova Street in Vancouver on or before 4:00 p.m., October 19th of 2012, and thereafter as directed. [ 49 ] Good luck. [ 50 ] That is the extent of my reasons, and I have this for recycling. [ 51 ] MR.

PORTE: I can take that back, Your Honour. The only outstanding issue is the victim fine surcharge -- [ 52 ] THE COURT: Oh yes. [ 53 ] MR. PORTE: -- in relation to that count, and the Crown will direct a stay of proceedings on the two other counts with regards to Mr. Kennedy-Williams which are Counts 3 and 4, stays of proceedings with respect to Mr. Kennedy-Williams only, but the victim fine surcharge needs to be addressed. [ 54 ] MR. SHAPRAY: In light of the fact that Mr.

Kennedy-Williams has lost two jobs including one recently, I am going to ask it be waived in these circumstances. [ 55 ] THE COURT: Nothing from you, Mr. Porte? [ 56 ] MR. PORTE: No, Your Honour. [ 57 ] THE COURT: All right. I am satisfied that the victim surcharge can be properly waived here and I do so. [REASONS FOR SENTENCE CONCLUDED]