R. v. Burkett Date:, 2012 BCPC 315

Citation: R. v. Burkett Date: 20120907 2012 BCPC 0315 File No: 223502-1-V Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SEAN BURKETT REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. SENNIW Counsel for the Crown: D. Porte Counsel for the Defendant: H. Brown Place of Hearing: Vancouver , B.C. Date of Hearing: July 19, 2012 Date of Judgment: September 7, 2012

[1] Sean Burkett has pled guilty to taking

part in a riot on June 15, 2011. I must consider the purposes and principles of sentencingset out in the Criminal Code and determine an appropriate sentence specifically for Mr. Burkett. [2] In arriving at my decision, I will explain the charge, describe the riot in general terms, detail Mr. Burkett’s involvement, hispersonal circumstances, outline the case law and then apply it to Mr. Burkett and his actions. Rioting, and the Vancouver Riot [3] Rioting is defined in the Criminal Code as an unlawful assembly that has begun to disturb the peace tumultuously. Whatdifferentiates taking

part in a riot from other offences which could be made out on the same behavior is the context: it is a group actionwhich has destruction as its common purpose and the actions and presence of one encourage others to participate undermining the valuesof a free and democratic society. (R. v. Fuller 1995 CarswellQue 2513, para 46; R. v. Blackshaw, [2011] EWCA Crim 2312, paras 5 – 9;R. v.

Loewen (BC CA), 75 CCC (3d) 184, para 8,10.) [4] On June 15, 2011, approximately 55,000 people watched the Vancouver Canucks hockey team play the Boston Bruins in thedeciding game of the Stanley Cup finals at an outdoor public viewing site set up by the City of Vancouver on West Georgia Street. Over100,000 others were watching the game elsewhere in the downtown area. Minutes before the Boston Bruins won the game a passengervehicle was overturned at the public viewing area and then set on fire. The riot began at this public viewing location and spreadthroughout downtown Vancouver.

Businesses were looted, vehicles vandalized, and police and civilians assaulted (the “Riot”). Thatnight there were 116 arrests in the area of the Riot. [5] The Emergency 911 line received more calls in the four hours after the game on June 15, 2011, than it had received in any prior24-hour period. The Vancouver Police Department integrated riot investigation team has identified 297 riot events each relatingspecifically to a location, a piece of property or a person. During the Riot 112 businesses were damaged; 122 vehicles, including 24emergency vehicles, were damaged or destroyed.

The total monetary loss as a result of the Riot as at February 2, 2012 was over$3,700,000, three-quarters of that relating to damage to businesses and the remainder suffered by civilians, the City of Vancouver,Ambulance Services and St. Paul's Hospital. Mr. Burkett’s Participation [6] Sean Burkett was part of the crowd watching the game at the public viewing area. Following the game Mr. Burkett and hisfriend walked to Georgia and Richards Streets where Mr. Burkett was captured on video watching as looters stole items from Blenz Caféafter its windows had been smashed. Mr.

Burkett and his friend then went north on Richards St. to an outdoor parkade at 655. [7] In the parkade Mr. Burkett and his friend are captured on video joining others who were lifting and pushing at a blue NissanSentra. Ultimately, after Mr. Burkett walked away from the car, it was turned over and destroyed. [8] The owner of the Sentra had come into Vancouver with friends to watch the game. On returning to her car after the game shesaw the windows had been smashed so she and her friends quickly retrieved their belongings, although a GPS and some other items hadalready been stolen.

As at October 11, 2011 the owner had not yet replaced the car, affecting her ability to perform the tasks of daily lifeand apply for certain types of jobs. [9] The crowd’s attention then turned to a blue Hummer H2 in the parkade. A man in the crowd had a broken barricade and hadtried unsuccessfully to smash the windows of the Hummer. He passed the barricade to Mr. Burkett who took it and smashed thewindows of the Hummer.

Others in the crowd eventually destroyed the vehicle. [10] The owner of the Hummer was at a friend’s apartment located half a block away from the parkade, accompanied by his 11 yearold daughter and another friend. They could see the Hummer from the apartment. When they went down to the vehicle to go home, they saw it had been vandalized and so returned to their friend’s apartment where they witnessed the mayhem below, including thedestruction and looting of their vehicle. The daughter was visibly upset and frightened for her family’s safety.

As at July 26, 2011, theowner was still without a replacement vehicle. [11] Mr. Burkett’s actions concerning the two vehicles occurred over a matter of minutes. Sometime after he returned home bypublic transit. Mr. Burkett’s Circumstances [12] Mr. Burkett saw a photo of himself published in the Vancouver Province newspaper and went the following day to identifyhimself to Vancouver Police. On June 15, 2011, Mr. Burkett was not yet two weeks past his 18th birthday. He has no criminal record,and no record of any interaction with the police. [13] The presentence report describes Mr.

Burkett as having a stable family upbringing in modest circumstances. He is a quiet youngman who enjoys time at home, and with friends playing sports, video games and making music. Mr. Burkett was bullied from young ageat school and consequently moved between the regular school system, homeschooling and alternative schools. He presently has somecredits toward grade 12 and plans to complete it online. Mr. Burkett has worked periodically in a labor-related seasonal job.

While he ishealthy, he has been withdrawn and depressed since the charges were laid. [14] According to the presentence report and letters of support filed at the sentencing hearing, Mr. Burkett rarely consumes alcohol. However on the night of the offense he was intoxicated as he shared a bottle of vodka brought by his friend, an individual with whomMr. Burkett does not regularly keep company. Mr. Burkett has only a vague memory of what he did. He recognizes the poor choicesthat he made and the association with a negative influence.

[15] Mr. Burkett is remorseful for his actions. He read a letter of apology which did not try to excuse his behavior but ratheraccepted responsibility and recognized the damage done. Sentencing Positions [16] The maximum punishment for taking

part is in a riot is a term of imprisonment for two years. There is no minimum. [17] Crown is seeking a jail sentence of 4 to 5 months and a probation order to follow with Mr. Burkett to perform 150 hours ofcommunity work service. Mr. Burkett's counsel argues that a shorter sentence, to be served in community, is appropriate. Law [18] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safesociety by the imposition of just sanctions. (Criminal Code s. 718).

It is clear from a review of the case law that the primary objectives Imust consider in sentencing on a charge of rioting are general deterrence and denunciation. (Loewen, R. v. Simpson, [2005] AWLD1584; R. v. Catenacci 2012 ONCA 187.) [19] The Criminal Code dictates that a sentence must be proportionate to the gravity of the offence and the degree of responsibilityof the offender. (s. 718.1) The moral culpability of the offender’s conduct, established by the state of mind accompanying the unlawfulact, is aggravated if the consequences of the act were either intended, or foreseen and recklessly disregarded. (R.v.

Sweeney (1992), (BC CA), 71 C.C.C. (3d) 82 (BCCA) as quoted in Fuller.) [20] I also must consider any aggravating or mitigating circumstances as they relate to the offence and to the offender; further, asentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; anoffender should not be deprived of liberty, if less restrictive sanctions maybe appropriate, and, all available sanctions other thanimprisonment should be considered. (Criminal Code, s. 718.2 (a), (b), (

d) and (e).) [21] The case law cited to me demonstrates a range of sentence for rioting from one month to eighteen months custody. Most of thecases were decided before conditional sentence orders were available. Even where the offender was a young man with no record, as inLoewen, and pled guilty, a significant jail term was imposed because the court concluded that the violence evinced by the propertydamage resulting from the actions of the offender required a custodial sentence to recognize the sentencing principle of generaldeterrence.

Still, sentencing is an individualized process taking into consideration the unique circumstances of the offence and of theoffender. Sentencing ranges are guidelines, not rules (R. v. Nasogaluak 2010 SCC 6). [22] Recently, a 20 year old male with no criminal record, who was in charge of four teenagers when he contributed to the Riot,participated in more discrete incidents than Mr. Burkett and was in the Riot area for several hours was sentenced to one month ofcustody following a guilty plea (R. v. Alviar 2012 BCPC 181).

Another 20 year old male with no record who was downtown to watchthe game disobeyed police orders following the game to disperse, tried with others to overturn two vehicles, and stole goods with hisface covered from two retail stores in which looting was occurring. He entered a guilty plea and received a 45 day intermittent custodialsentence (R. v Patillo 2012 BCPC 299 , 2012 BCPC 0299). A 25 year old man who had had previous dealing with the policeand courts chose to leave his home to go to the Riot once it was underway.

He went into the Sears store through a broken glass door andstole some cosmetic items, then remained in the Riot area for some time. He pled guilty to rioting and a four month conditional sentenceorder was imposed (R. v.

Snelgrove 2012 BCPC 235 , 2012 BCPC 0235). [23] Conditional sentence orders are meaningful alternatives to incarceration for less serious and non-dangerous offenders; they areavailable in principle for all offences in which the statutory prerequisites are satisfied; they can provide a significant amount ofdenunciation and deterrence, especially when onerous conditions and sufficiently punitive conditions, respectively, are imposed andwhen the sentence is longer than what a term of actual imprisonment would have been.

The Supreme Court has warned judges to bewary of placing too much weight on deterrence when choosing between a conditional sentence and incarceration. (R. v. Proulx, 2000SCC 5 , [2000] 1SCR 61, paras. 21, 79, 106, 107.) [24] A number of the cases which crown has provided me where a court has declined to make a conditional sentence order involverioting together with other offences, or where the aggravating factors were more serious than those in Mr. Burkett’s case. Analysis [25] Mr. Burkett went into Vancouver to watch the hockey game at the public viewing area with a friend.

The friend had a bottle ofvodka with him. Mr. Burkett, a young man not accustomed to drinking, partook of the vodka. He does not remember much of thatevening. After the game, with others, he witnessed acts of looting and destruction of property; acts of rioting. He did not exercise thejudgment he should have, no doubt at least in part because of his alcohol consumption. He did not leave the area. With a friend hecarried on to a parkade where he participated in damaging vehicles.

He got caught up in what others were doing perhaps in part becauseof the dis-inhibiting effects of alcohol, the effects of which were not familiar to him. These actions were out of character for him. [26] His youth and lack of life experience, together with this unfamiliar effect of alcohol led to his being caught up in the Riotwithout appreciating what he was becoming involved in. In these circumstances he could not muster the maturity to resist joining thedestructive group activity. [27] None of this was planned. Mr. Burkett was a follower, not a leader.

While he did not participate in the worst of the propertydestruction, his presence and actions contributed to the Riot. [28] The aggravating circumstance here is the context of the offence: the participation in the actions of a mob, general lawlessnessand the destruction of property. [29] The mitigating circumstances are the following: Mr. Burkett has no criminal record; in fact, no record of contact with police.

He turned himself in the day after his photograph appeared in the newspaper. He has pled guilty. He is remorseful and deeply regrets his actions and has written a letter of apology that considered specifically the harm to individuals, as well as the city of Vancouver. [ 30 ] Mr. Burkett is a young man and was only just an adult in the eyes of the criminal law at the time of the offense. While on bail conditions, he carried on with his studies, participated as a member of his family, and as a member of the community, and has not been part of any antisocial conduct since.

Despite some struggles with school, he has persisted and intends to complete his grade 12 requirements through Surrey Connect. When not bound by such educational commitments he has worked. He resides with his family, and is generally quiet at home. He and his friends spend time together in prosocial activities. Mr. Burkett does not regularly consume alcohol or drugs. [ 31 ] Mr. Burkett is an individual for whom the sentencing principle of specific deterrence is not applicable. He has had to engage counsel and attend court. He has pled guilty and is remorseful.

He has become depressed and withdrawn since the offense. His behaviour on the night of the riot was out of character. [ 32 ] The circumstances surrounding this offence have a number of deterrent characteristics which may prevent others from engaging in similar acts. Mr.

Burkett’s photograph was published in a newspaper with a wide circulation. [ 33 ] He will have a criminal record which will interfere with his ability to travel and restrict his employment options. [ 34 ] The British Columbia Court of Appeal in Loewen found it necessary to give a young man who had pled guilty to rioting and mischief a jail sentence in order to denounce the violence and threat to orderly society inherent in rioting, and to deter others from similar behavior. [ 35 ] As there is no minimum sentence for this offence, the sentence crown is seeking is less than two years, and the public would not be endangered if Mr.

Burkett were to serve a jail sentence in the community, I am bound to consider whether a community-based custodial sentence would be consistent with the fundamental principles and purposes of sentencing. The position of the crown is that a conditional sentence order would not adequately address the primary sentencing principles applicable here, denunciation and general deterrence. [ 36 ] While the general principles must be applied, sentencing is an individualized process.

The circumstances of the specific offense and the specific personal circumstances of the offender have to be considered in determining an appropriate sentence. While the primary sentencing principles I must consider are denunciation and general deterrence, because of Mr. Burkett’s youthfulness I cannot overlook his rehabilitation. The long term interests of society would be best served if Mr.

Burkett were able to successfully complete his education and locate employment where he could put his specific skills and talents to use, thereby becoming a contributing member of society. [ 37 ] In these circumstances, taking into account Mr.

Burkett’s youth, uncharacteristic lack of judgment arising from the unaccustomed consumption of alcohol , limited involvement in the Riot compared to other actors, his guilty plea and remorsefulness, his lack of a criminal record or police involvement, the support of his family , his plans for the future, and the fact he will now carry a criminal record I believe a conditional sentence order with stringent conditions can adequately address the sentencing principles of denunciation and general deterrence. [ 38 ] Mr.

Burkett, you will be on a jail sentence, to be served in the community for a period of three months.

There are a number of statutory conditions which will be reviewed with you when you sign the conditional sentence order. [ 39 ] You must report by 4 pm, Monday, September 10, 2012 to a sentence supervisor at 275 East Cordova Street, and thereafter as and when directed. [ 40 ] You are to reside where directed by your sentence supervisor. [ 41 ] Except for a genuine medical emergency pertaining to yourself you are not to be found outside of your place of residence for the entirety of this order except while travelling directly to and from or while at : (

a) your place of schooling or employment approved of by your sentence supervisor; (

b) meetings with your sentence supervisor; (

c) any location approved of in writing by your sentence supervisor; or, (

d) for any reason deemed appropriate by them including counseling or community work service. [ 42 ] You may be outside of your residence for three hours once per week to attend to personal chores, at a time approved of in advance by your sentence supervisor. [ 43 ] You are to present yourself at the door of your residence when requested to do so by a peace officer or a sentence supervisor. [ 44 ] You are not to possess or consume any alcohol. [ 45 ] You are to attend at an educational institution, or otherwise be enrolled in and working towards your grade 12 diploma in circumstances approved of by your sentence supervisor and you will provide your sentence supervisor proof of your enrollment and progress upon their request. [ 46 ] You are to attend, participate in and complete any programs or counselling as directed by your sentence supervisor including

any psychological, psychiatric, educational or career assessments and subsequent counselling. [ 47 ] Mr. Burkett, I remind you that this is a jail sentence. It is to be served in the community. Should you breach any term of this sentence, you may be ordered to serve the remainder of the sentence in institutional custody. [ 48 ] At the expiration of your conditional sentence you will be on probation for one year.

You are to report within 72 hours of the expiration of your sentence to a probation officer at 275 East Cordova Street and thereafter as and when directed. [ 49 ] You are to perform 50 hours of community work service within the first nine months of your probation. [ 50 ] You are to attend at an educational institution, or otherwise be enrolled in and working towards your grade 12 diploma, or post- secondary education or skills-based training in circumstances approved of by your probation officer and you will provide your probation officer proof of your enrolment, attendance and progress upon their request. [ 51 ] You are to attend, participate in and complete any programs or counselling as directed by your probation officer including any psychological, psychiatric, educational or career assessments and subsequent counselling. [ 52 ] As you are a student and financially dependent on your parents, I will waive the victim fine surcharge. ________________________________ The Honourable Judge D.

Senniw Provincial Court of British Columbia