R. v. Kirkwood Date:, 2013 BCPC 145

Citation: R. v. Kirkwood Date: 20130611 2013 BCPC 0145 File No: 223505 VC 3 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. Spencer Robert Kirkwood REASONS FOR SENTENCE OF THE HONOURABLE JUDGE C. L. BAGNALL Counsel for the Crown: P. Tomasson Counsel for the Defendant: J. Waddington Place of Hearing: Vancouver , B.C. Date of Hearing: June 5, 2013 Date of Judgment: June 11, 2013 [ 1 ] As a result of events which occurred on June 15, 2011, Mr. Kirkwood was charged with having participated in a riot and with

mischief, specifically, damaging a window which belonged to Telus. He was also charged with failing to comply with a condition of theundertaking he entered into respecting those charges, by consuming alcohol on May 26, 2012. [2] Mr. Kirkwood entered pleas of not guilty with respect to all three charges and his trial took place on February 4, 5, 8, and 13,2013. The matter was then adjourned for almost two months to accommodate defence counsel’s schedule. I delivered reasons for myverdict on April 4, 2013, (reported at 2013 BCPC 84).

The only real issue at trial was the mens rea of the accused with respect to thecharge of participating in a riot. Mr. Kirkwood, although he did not plead guilty, effectively admitted his guilt respecting the other twocharges during the trial. [3] My verdicts having been delivered, the matter was again adjourned so that a Pre-Sentence Report could be prepared. I heardsubmissions respecting sentence on June 5, 2013, and sentenced Mr. Kirkwood later the same day. I indicated that I would file writtenreasons for the sentence I handed down. These are those reasons. [4] On June 15, 2011, Mr.

Kirkwood became intoxicated while watching the final game of the 2010/2011 hockey season at thehome of a friend located in the Yaletown area of Vancouver. He went out into the streets and joined a group who were using part of abarricade to smash the windows at the Telus location on Seymour Street in the downtown core. Mr. Kirkwood aimed the barricade atone of the windows a number of times, both alone and with another person. His involvement lasted slightly less than one minute induration. [5] The cost of replacing the broken windows was $10,337.63. [6] Mr. Kirkwood had no recollection of his actions.

He became aware of his actions the day after the riot because a videorecording of him trying to break the Telus window was posted on Facebook. He spoke with his father about this and on June 17, 2011,he telephoned the police to report his criminal behaviour. [7] One July 18, 2011, he was interviewed by an officer who was part of the massive investigation into the riot. Mr. Kirkwoodapologized to the officer for his actions. Asked what he thought the “outcome” of the charges he would almost certainly face should be,Mr. Kirkwood indicated that he thought he would be “going to jail”.

He also indicated that he had taken responsibility for his actions onFacebook. [8] Charges were eventually laid, Mr. Kirkwood was arrested, and on December 6, 2011, he was released on an Undertaking toAppear. One of the conditions attached to the Undertaking was that he not consume alcohol. [9] Six months later, on May 26, 2012, at 2:40 AM, Mr. Kirkwood was stopped by the police after he failed to stop at a red light onEast Hastings Street in Vancouver. He provided samples of his breath for analysis as part of the drinking driving investigation whichensued.

He was intoxicated by alcohol at the time. [10] Soon after this, Mr. Kirkwood sought counselling for what he, I believe correctly, concluded was a problem with alcohol. [11] Mr. Kirkwood has no prior criminal record. [12] The Crown submitted that the appropriate sentence was actual incarceration for 30 to 45 days, with a Probation Order to followwhich would include conditions relating to abstention from alcohol consumption, counselling, and the performance of 100 to 150 hoursof Community Work Service. [13] On behalf of the Crown, Ms.

Tomasson made the point that the circumstances giving rise to the charge of failing to complywith an Undertaking strongly suggested that Mr. Kirkwood could not or would not comply with whatever conditions might be attached toa Conditional Sentence Order. [14] The nature and the impact on the community of the riot which occurred on June 15, 2011, have been set out in exhaustive detailin many of the cases which deal with charges arising from the riot, and those details are set out in Exhibit 3 on Mr. Kirkwood’s trial. Those details are the context for the offences he committed that day.

The Court of Appeal recently said this in the case of Regina v.Peepre, 2013 BCCA 115, at paragraph 12: The riot itself began just before the 7:45 p.m. conclusion to the hockey game and continued until the early hours of the followingmorning. During that time, a state of violent disorder occurred in a large portion of downtown Vancouver. It was unsafe not only forcitizens of Vancouver, but also for police, fire, and ambulance personnel to be in the riot area. Rioters smashed store-front windows, andthen looted the store contents. They vandalized, broke into, and set fire to numerous vehicles.

Crowds faced off against the police,throwing projectiles at the officers. One thousand and thirty-five emergency personnel were deployed in an effort to suppress the riot andits immediate incidents. Callers overwhelmed the capacity of the 911 line with riot-related emergency reports. At one point in theevening, ambulance personnel were called away from an area east of Burrard Street because it was considered too dangerous for them toremain there. The hospital nearest the scene of the riot - St. Paul's Hospital - dealt with 150 riot-related emergency room visits. Therioters damaged 112 businesses and 122 vehicles.

The value of monetary losses to businesses, civilians, the City of Vancouver,Ambulance Services, and St. Paul's Hospital is estimated to have exceeded 3.7 million dollars. [15] The involvement of each individual rioter was the subject of this comment by the Court of Appeal at paragraph 27: Special considerations apply to sentences imposed for participation in a riot. Sentencing an offender for participation in criminal acts thatinvolve widespread public disorder requires a court to look not only at the offender's individual conduct, but also the broader context inwhich the individual participated.

A rioter is culpable for not only his own conduct: he bears, in a general way, a share of responsibilityfor the more widespread acts of lawlessness in which he participated: see R. v. Loewen (1992), (BC CA), 75 C.C.C.(3d) 184, 15 B.C.A.C. 42; R. v. Simpson, [2004] A.J. No. 1795 (Q.B.), aff'd 2004 ABCA 390. Citizens of Vancouver and members of

the larger community present at the scene of the Stanley Cup riot were terrorized by the acts of violence to persons and property that occurred. That violence, and the public's consequential feeling that law and order had been cast aside, is significant in our consideration of the fitness of Mr. Peepre's sentence. Participation in a riot is a deliberate criminal act that has grave consequences for the safety and security of our community. The corollary of that fact is that those who participate must expect to be punished severely.

By using the deterrent and denunciatory effects of sentencing in a manner that accounts for the current conditions in and values of the community, courts can discourage individuals from participating in acts of public violence and, hopefully, prevent the reoccurrence of events like the Stanley Cup riot. [ 16 ] Ms. Tomasson submitted that Mr. Kirkwood’s moral blameworthiness was high in that his actions “incited” others to participate in the riot. She highlighted the following comment in Regina v.

Peepre at paragraph 30 : These comparator cases disclose that, generally speaking, first time offenders (meaning those with no criminal record) will nevertheless receive a prison sentence of some significant length if their conduct includes: inciting others; engaging in additional criminal activity, such as assault (particularly of a police officer), arson, or wearing a mask; or committing multiple criminal acts in multiple locations. See R. v. Yates , 2012 BCPC 250 ; R. v. Dorosh , 2012 BCPC 370 ; R. v. Patillo , 2012 BCPC 299 ; R. v. Renderos , 2012 BCPC 467 ; R. v. Alviar , 2012 BCPC 181 ; R. v.

Lau (5 November 2012), Vancouver 223529-1-V (BCPC); R. v. Horton , 2012 ONCJ 724 ; R. v. Ravindharaj , 2012 ONSC 6260 . This list of aggravating factors is not intended to be exhaustive. It seems to me as a broad proposition such aggravating factors should generally lead to a longer prison term and not a conditional sentence served in the community, subject always to an individual's personal circumstances. [ 17 ] I do not think that the Court of Appeal was referring to offenders such as Mr. Kirkwood in discussing those who “incite” others. Every rioter contributed to the general mayhem.

Every rioter, by his or her actions, encouraged others to get involved, contributed to the sense that what was occurring was normal, and so “incited” others in the plain meaning of that term. However, in discussing those who incited others, I believe the Court of Appeal was referring to those who might also be called “instigators,” those who commenced the riot, those who began the damage at each location, and those who egged others on. Mr. Kirkwood cannot be said to fall in this category. [ 18 ] Ms. Tomasson brought to the attention of the Court that the offender in the case of Regina v.

Alviar , 2012 BCPC 181 , was also involved in the attack on the windows at the Telus building. The sentence in that case was 30 days incarceration. Mr. Alviar’s involvement in the riot was quite different than Mr. Kirkwood’s, and Mr. Alviar was in the company of and responsible for four young teenagers during the events. In my view, his moral culpability was much higher than Mr. Kirkwood’s. [ 19 ] On behalf of Mr. Kirkwood, his counsel agreed that the range of sentence proposed by the Crown was the appropriate range.

He submitted that it would neither endanger the public, nor be inconsistent with the principles of sentence, for Mr. Kirkwood to serve his sentence in the community by way of a Conditional Sentence Order. [ 20 ] The offender was 24 years of age at the time of the riot and 25 years of age when he breached the terms of his bail. He is now 26 years old. He was raised in a stable and supportive family and, until 2007, he had not experienced any substance abuse issues. In that year, he was the victim of a home invasion. The criminals who broke into his home were at the wrong address. They assaulted Mr.

Kirkwood, causing him serious injuries and lasting psychological trauma. He began to abuse alcohol to cope with his ongoing fear and anxiety. [ 21 ] This continued through the time of the riot, and until he was stopped for impaired driving and charged with breaching his bail in May, 2012. At that point, Mr.

Kirkwood sought help, and he stopped drinking. [ 22 ] The Pre-Sentence Report which was prepared respecting the offender sets out his antecedents and his present circumstances, and I will not repeat those details here. [ 23 ] Letters from his friends, his family, his employer, and his counsellor have been filed. One of the correspondents said this: Spencer suffered a very traumatic and violent home invasion in July of 2007. Since that Spencer has had trouble handling the horrific event he went through personally and what he witnessed.

He has used alcohol as a crutch to handle his feelings and fears of what happened to him that night and for the years afterwards, waiting for justice to be served to the people that hurt him. I have watched the “you tube” video of Spencer on June 15 th at the Vancouver riot and can tell you what you see on that video is not the young man that I know. He was clearly under the influence and was not acting like the kind hearted person I know. He allowed himself to be caught up in the mob mentality and made a poor decision.

When Spencer sobered up the next day and was made aware of what had happened, he immediately contacted the police to turn himself in, demonstrating the good core values his parents raised him with. He has owned his mistakes and has repeatedly since the incident apologized to not only his family and friends, but to the City he loves. [ 24 ] Another correspondent wrote: I looked at this video over and over and over again, first in disbelief and then with much sorrow and disappointment, trying to figure out what went wrong.

I truly believe he attempted to break the window while so very intoxicated; it is very plain to see how the crowd incited this incident. I am not trying to make excuses for Spencer, but I also know if he was sober this would not have happened. He would have been one of the people trying to stop the craziness, not be involved in it.

[ 25 ] Since his actions during the riot were displayed on Facebook, Mr. Kirkwood has been a recognizable face in Vancouver. He was the first of those who faced charges resulting from the riot to plead not guilty and to proceed to a trial. The media attention respecting this case has been intense, even more intense than the media attention for the rest of the cases resulting from the riot. Mr. Kirkwood reports being recognized on the street, being taunted and glared at by strangers, and receiving hate mail.

The attention from the media has affected not only the offender, but his family. [ 26 ] When I consider the necessity to focus on deterrence and denunciation in sentencing Mr. Kirkwood, I take these consequences into account. For this offender, and for any who might be tempted to behave as he did, the media attention has intensified and enhanced whatever deterrent and denunciatory effect might otherwise have resulted from my sentence. [ 27 ] The aggravating circumstances here are that the original offences occurred in the context of massive public disorder and violence.

The charge of breaching a condition of bail concerns a breach of a court order and must be seen as serious. [ 28 ] The mitigating circumstances are numerous. Mr. Kirkwood expressed immediate and continuous remorse for his actions. He turned himself in to the police immediately. At trial, he effectively admitted his guilt respecting the charge of mischief and the charge of breaching his bail. His trial proceeded with respect to one triable issue. The offender feared the potential for a jail sentence and this has been hanging over him for almost two years. The attention to his case in the media has been intense.

Mr. Kirkwood’s alcohol abuse resulted from a traumatic event which occurred in 2007. On both of the dates when he committed offences, his alcohol problem remained active. After the later of these dates, he sought help and stopped drinking. He is still a very young man. He has no prior criminal record. [ 29 ] Taking all of the circumstances of the offence and the offender into account, I sentenced Mr. Kirkwood on Counts 1 and 2 on the Information to serve 30 days incarceration by way of a Conditional Sentence Order. Those two sentences were to be concurrent one with the other.

I added just one condition to those required by the statute, that he not consume alcohol nor any drugs except those prescribed for him by a doctor. With respect to these counts I also placed Mr. Kirkwood on probation for two years, with that same condition added to those required by the statute. I did not require him to take counselling. I am satisfied that he will continue to do that in any event. I did not require that he perform community work service because of his employment circumstances. [ 30 ] On Count 3, I sentenced Mr.

Kirkwood to serve one day in custody and I directed that he not be taken into actual custody. [ 31 ] The usual Victim Surcharge will apply in this case. ________________________________ The Honourable C. L. Bagnall Provincial Court of British Columbia