R. v. Cacnio Date:, 2012 BCPC 314

Citation: R. v. Cacnio Date: 20120907 2012 BCPC 0314 File No: 223508-1-V Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CAMILLE ROXANNE CACNIO REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.F.GALATI Counsel for the Crown: Daniel J. Porte Counsel for the Defendant: Jason D. Tarnow Place of Hearing: Vancouver , B.C. Date of Hearing: August 24, 2012 Date of Judgment: September 7, 2012 INTRODUCTION

[ 1 ] Camille Cacnio has pleaded guilty to participating in a riot, contrary to s. 65 of the Criminal Code .

The crown has not proceeded with the accompanying break and enter charge. [ 2 ] The riot in question occurred on June 15, 2011, and it commenced as the Vancouver Canucks lost game seven of the Stanley Cup finals. [ 3 ] There were approximately 55,000 people reveling and watching the game in a public viewing area in the vicinity of the Vancouver Public Library. [ 4 ] As the game ended, some persons within this crowd initiated and incited the riot by engaging in unruly behavior, including shouting profanities and throwing projectiles.

They were soon joined by others and the few became a mob. [ 5 ] Vehicles were vandalized and set on fire. The windows and doors of multiple commercial premises were smashed and the premises were looted. Various persons, including police officers, were assaulted. Lawlessness, perpetuated by violence, destruction and theft, reigned supreme. [ 6 ] Over 900 police officers were deployed to the downtown core of Vancouver, as well as 63 members of Vancouver Fire and Rescue Services and 44 members of the British Columbia Ambulance Service.

There was an unprecedented number of calls to the 911 emergency number, more in 4 hours than there had historically been in a 24 hour period. These responders were hampered in, and in many cases precluded from, the performance of their duties by the magnitude of the riot. [ 7 ] In total, 112 businesses were damaged and 122 vehicles were damaged or destroyed.

The total estimated monetary loss approached 4 million dollars. [ 8 ] The riot attracted international attention and has cast the reputation of the City of Vancouver in an unfavourable light which, given the previous hockey related riot in 1994, cannot be said to be without foundation. [ 9 ] Camille Cacnio participated in the riot and the issue in this case, as in all sentencing cases, is what will constitute a fit sentence. INVOLVEMENT OF THE ACCUSED [ 10 ] After watching the hockey game and consuming alcohol at the downtown residence of a friend, Ms.

Cacnio and two friends walked to the area of Homer and Georgia streets. She is depicted on video watching the riot take place around her. [ 11 ] The riot had started approximately one hour earlier. The violence and destruction were obvious. [ 12 ] Ms. Cacnio and her friends walked to the area of Georgia and Richards streets, where, in a nearby parkade, they watched a vehicle burn amongst other vehicles which had been overturned. The video captures her laughing and apparently enjoying herself. [ 13 ] Ms.

Cacnio subsequently told the police that as she and her friends watched the vehicle burn “…we saw that Black & Lee was completely broken into and it was just funny at the time…and there was nobody in there so we’re just like, oh, I dare you to do it, and it was funny, so we went in and just took like the last things that were left.” [ 14 ] In fact, Ms. Cacnio entered the ransacked Black & Lee store through a broken window, took two pairs of size 42 men’s tuxedo pants and a tie, then left through the broken glass doors.

Once again, the video image shows her laughing as she ran out of the store with the stolen clothing. [ 15 ] These actions by Ms. Cacnio took place over approximately 20 seconds and they comprise what the crown relies upon as the extent of her participation in the riot. [ 16 ] In what some might refer to as “karma”, at some point after participating in the riot, Ms. Cacnio tripped and fell on broken glass, suffering a laceration which required ten stitches. [ 17 ] The image of Ms. Cacnio leaving Black & Lee was very soon afterwards widely published in social media and ultimately resulted in Ms.

Cacnio turning herself in to the police. She acknowledged her participation and made arrangements to return the stolen merchandise. [ 18 ] Shortly after speaking to the police, Ms. Cacnio wrote and published a lengthy public apology on the internet, much of which was an attempt to explain her out-of-character behavior, due in part to her intoxication and the influence of mob mentality. [ 19 ] Unfortunately, she also chose to respond to the anonymous internet critics who had spewed vitriol and vilified her. That appears to have inspired even more savage and tormenting remarks and ultimately, Ms.

Cacnio replaced her lengthy statement with a much shorter and entirely contrite apology. [ 20 ] In

summary, Ms. Cacnio voluntarily participated in a large scale riot by looting merchandise which was useless to her, for no reason other than the thrill of having done it. The video and her subsequent statements do not support intoxication as a full explanation for her behavior. She became part of the mob and she enjoyed it for a brief period of time but she very quickly afterwards accepted responsibility for her actions and expressed her remorse. BACKGROUND OF THE ACCUSED

[21] Ms. Cacnio is 23 years old. She was 7 months old when her family immigrated to Canada from the Philippines. [22] She has recently obtained a Bachelor of Science degree from the University of British Columbia and aspires to work as aconservation biologist. [23] Until June 15, 2011, Ms. Cacnio led an exemplary life. Numerous letters of reference have been filed which attest to her goodcharacter and variously describe her as honest, hardworking, smart, responsible, dedicated, caring, generous and compassionate.

She hasreceived numerous academic scholarships and has been involved in many community activities and charitable works as a volunteer. Shehas worked a variety of jobs while pursuing her education and athletic pursuits. [24] She has no prior criminal record and her references are undoubtedly correct in describing her participation in the riot as entirelyout of character. [25] She is a young woman who has contributed to society and who is motivated and capable of greater contributions going forward. POSITIONS OF THE PARTIES [26] Through counsel, the crown acknowledges that Ms.

Cacnio’s degree of involvement in the riot is at the lowest end of thespectrum of persons charged but submits that a brief period of imprisonment is nonetheless necessary to properly address the sentencingobjectives of denunciation and general deterrence.

Accordingly, the crown seeks a sentence of 15 to 30 days imprisonment, to be servedintermittently on successive weekends, followed by probation with 50 to 100 hours of community work service. [27] The crown is opposed to any form of community based sentence as being inadequate where, as alleged here, denunciation andgeneral deterrence are the paramount sentencing objectives. In this regard, the crown points to the context of the riot, the significance oflooting within that context, and the increased recurrence of riots in recent Canadian history. [28] Ms.

Cacnio does not dispute that denunciation and general deterrence are warranted sentencing objectives in this case, but saysthey have largely been achieved through the publicity her particular case has attracted. Citing her low level of participation and herpersonal circumstances, she seeks a conditional discharge with a lengthy probation order and 200 or more hours of community workservice.

THE LAW [29] The fundamental purpose of sentencing is set out in s.718 of the Criminal Code and in paraphrase, it is to contribute to respectfor the law and the maintenance of a just, peaceful and safe society by imposing sanctions that have one or more of several listedobjectives, including denunciation and deterrence, as well as restorative objectives. [30] The fundamental principle of sentencing is set out in s. 718.1 and is often referred to as proportionality, in that a sentence mustbe proportionate to the gravity of the offence and the degree of responsibility of the offender. [31] Other sentencing principles are set out in s. 718.2.

A sentence must be adjusted to take into account any relevant aggravating ormitigating circumstances.

It should be similar to sentences imposed on similar offenders for similar offences committed in similarcircumstances and it should be the least restrictive sanction that is appropriate or reasonable in the circumstances. [32] Counsel have provided numerous cases in support of their respective positions and have referred to the statutory sentencingprovisions in the Criminal Code. [33] The riot sentencing cases include decisions which date back to 1991 and span the gap to all of the decided cases regarding theJune 15, 2011 riot.

In each of these cases involving large scale riots, the sentence includes imprisonment and only in R. v.

Snelgrove,2012 BCPC 235 was the sentence allowed to be served in the community pursuant to a conditional sentence order. [34] As in the case at bar, Snelgrove appears to be the only decided case where the participation of the accused in a large scale riotinvolved only theft or looting rather than vandalism or violence. [35] The defence cases reflect the broad range of offences and circumstances where, notwithstanding the need for generaldeterrence, a discharge has been held to be in the best interest of the accused and not contrary to the public interest. [36] I do not intend to refer to the vast majority of the cases but complete lists are attached hereto as Appendices A and B. [37] My colleagues, in the riot cases that have gone before this one, have all referred to and acknowledged the leading riot sentencingcase in this jurisdiction is R. v.

Loewen, (BC CA), 75 C.C.C. (3d) 184, a 1992 decision of the British Columbia CourtOf Appeal. [38] That case dealt with the riot in Penticton in the summer of 1991.

In holding that the sentencing principle of not imposing acustodial sentence upon a first time offender must yield to the objective of general deterrence, the majority of the Court of Appeal noted,at paragraph 11: The number of persons involved in the Penticton riot, the physical injury inflicted upon police officers, the physical damage occasionedto civic as well as to private property, and the damage done to the general reputation of the Penticton community, demonstrate that the

circumstances of the riot were far from “ordinary”. [39] Although the appeal was allowed, a sentence of imprisonment was imposed on a first time offender who had participated in thedestruction of a newspaper box, assisted in turning over a building structure and removed a video monitor from another building. [40] It is important to keep in mind that in 1992 conditional sentences were not available. Subsequently, in R. v. Proulx, 2000 SCC5 , [2000] S.C.J.

No.6, the Supreme Court of Canada unanimously held that a conditional sentence can provide significantdenunciation and deterrence and it will likely be more appropriate than incarceration where both punitive and restorative sentencingobjectives may be achieved.

Where denunciation and deterrence are particularly pressing, the court stated that incarceration willgenerally be the preferable sanction. [41] In Snelgrove, Rideout, P.C.J. imposed a conditional sentence on a youthful offender, with no prior criminal record, whoparticipated in the riot by entering Sears through smashed doors and stealing face products which were subsequently returned when heturned himself in to police after having attracted media attention. [42] Counsel on behalf of the crown submits that the significance of looting was not addressed in Snelgrove and that because lootingwas fundamental to the enormity of the riot, I should conclude that a short, sharp sentence of incarceration more appropriately addressesthe objectives of denunciation and general deterrence. [43] However, a conditional sentence can only be considered once a penitentiary term and probationary measures are rejected asinappropriate.

A penitentiary term is clearly inappropriate but Ms. Cacnio seeks a conditional discharge, which is a form of probationarymeasures. [44] In addition to reliance on the cases provided, Ms. Cacnio seeks to distinguish Loewen on the basis that the public is widelyaware of what she did and that to many, she is the focal point of post riot public reaction. As I understood it, the thrust of this submissionis that those who are likely to be deterred from similar conduct have likely been deterred by the widespread publicity Ms.

Cacnio hasreceived and the realization of how easy it is, in this day and age, to be caught, humiliated and prosecuted. From that it would follow thatdenunciation and general deterrence ought to be less than the paramount sentencing objectives and that a conditional discharge would notbe contrary to the public interest.

ANALYSIS [45] A denunciatory sentence is appropriate where it is sought to condemn the offender’s conduct in violating our core societalvalues, particularly where the crime is particularly offensive or prevalent in the community. [46] A sentence which has the potential to deter others from such conduct is appropriate for the same reasons and will generallyinvolve the infliction of punishment to set an example. Those we seek to deter must become aware of the unpleasant consequenceswhich flow from such conduct. [47] At the time of the riot, Ms.

Cacnio was in her fourth year at the University of British Columbia and was also employed as areceptionist at both a car dealership and a gymnasium. She lost both jobs as a result of the negative publicity which followed. Shesubsequently lost a third receptionist job as a result of further publicity when she was formally charged. In addition, she felt compelledto temporarily abandon her studies, one course short of her degree, because of negative reactions from some of her fellow students. [48] The materials filed support the proposition that Ms.

Cacnio, to some degree, has been unjustly persecuted by the would bepundits of the social media. This has affected her, not only by the loss of employment but also in her personal relationships. In respect tothe latter, she has sought counseling and has benefitted from mild antidepressant medications prescribed by her doctor. [49] Ms. Cacnio has suffered unpleasant consequences as a result of her conduct and the materials filed show that the public iswidely aware of that.

I agree that by reason of the intense and widespread publicity, the situation in this case is significantly differentthan when Loewen was decided and there is less need for an appropriate sentence to emphasize denunciation and general deterrence. [50] A fit sentence in this case should not focus on the need for general deterrence otherwise it may not be proportionate nor theleast restrictive appropriate sanction. [51] A conditional discharge, however, would be contrary to the public interest for participation in a large scale riot whichendangered the security of many and promoted the wanton destruction of property.

The context of the riot calls for some degree ofcondemnation and punishment, notwithstanding Ms. Cacnio’s limited level of involvement. [52] There is no need to teach Ms. Cacnio a severe lesson. To the extent she was not deterred by her remorse, she has been deterredby the post riot public reaction and by the fact of this prosecution. [53] There is also no need to set an example by her sentence more forcefully than by recording a conviction and attachingrestorative, yet onerous conditions. The stigma which attaches to a conviction for an indictable offence should not be underestimatedand cannot be overlooked.

It is significant and insofar as general deterrence is achievable, the presumptive likelihood of a convictionwhich will have an effect on one’s life for at least several years, is arguably as much of a deterrent as the additional prospect of a shortperiod of intermittent imprisonment. [54] Given the conclusion I have come to, there is no need to consider the appropriateness of a conditional sentence but had Iconcluded that a sentence of imprisonment was required, I would have allowed Ms. Cacnio to serve it in the community with largely the

same conditions I am about to impose as part of a probation order except there would have been a period of house arrest rather than acurfew. [55] Ms. Cacnio, please stand. I hereby suspend the passing of sentence and place you on probation for a period of 2 years. Inaddition to the statutory conditions, you are also bound as follows: (

i) you must report to a probation officer at 275 E. Cordova Street, Vancouver, BC, by 4 p.m. September 10, 2012 and thereafteras required; (ii) for the first 12 months of this Order you are not to be outside the grounds of your residence between the hours of 10 p.m. and 6a.m. except for medical emergencies or with the written permission of your probation officer; (iii) at the direction of your probation officer you are to perform 150 hours of community work service within the first 18 months ofthis Order. [56] The victim surcharge is waived. _____________________________ The Honourable Judge J.F.

Galati Provincial Court of British Columbia APPENDIX A Crown Cases R. v. Loewen, (BC CA), 75 CCC (3d) 184, 1992 CarswellBC 1104 (WL Can) (BCCA) R. v. Breault, [1991] 39 QAC 73, JE 91-1242 (WL Can) R. v. Simpson, 2004 ABCA 390, 2004 CarswellAlta 1595 (WL Can) R. v. Blackshaw, [2011] EWCA Crim 2312 Times R. v. Catenacci, 2012 ONCA 187, [2012] OJ No 1323 (QL) R. v. Post (26 September 1991), Penticton 18726-2C2, (SCBC) Unreported decision of Oliver J. R. v. Simpson, [2005] AWLD 1584, 2004 CarswellAlta 1886 (WL Can) R. v. Starcevic (21 August 1991), Penticton 18759 (BCPC) Unreported decision of Behncke, J. R. v.

McCabe (16 October 1991), Penticton 18947 (BCPC) Unreported decision of Weddell, J. R. v. Newth (19 March 1992), Penticton 18571C (BCPC) Unreported decision of Sinclair, J. R. v. Fuller, JE 95-1118, 1995 CarswellQue 2513 (WL Can) (Que Mun Ct) R. v. Aboukhazaal (13 October 1994), Vancouver 80926D (BCPC) Unreported decision of Weitzel, J. R. v. Holness (20 October 1994), Vancouver 80827-80828D (BCPC) Unreported decision of McGivern, J. R. v. Psarrakis (28 April 1995), Vancouver 83317-D (BCPC) Unreported decision of McGivern, J. R. v. Manson (19 May 1995), Vancouver 788873-DC (BCPC) Unreported decision of Craig, J.

R. v. Snyder, 2007 BCPC 161, [2007] BCJ No. 113 (QL) R. v. EP, 2007 BCPC 159, [2007] BCJ No. 1111 (QL) R. v. Cote, 2011 ONCJ 778, 2011 CarswellOnt 14792 (WL Can) R. v. Henry, 2011 ONCJ 501, 278 CCC (3d) 344, 2011 CarswellOnt 10039 (WL Can)

R. v. Catenacci, 2011 CarswellOnt 15707 (WL Can) (Ont CJ) R. v. Coon, 2012 ONCJ 72 R. v. Dickinson, 2012 BCPC 40, [2012] BCJ No. 314 (QL) R. v Alviar, 2012 BCPC 181, [2012] BCJ No. 1179 (QL) R. v. Snelgrove, 2012 BCPC 235 R. v. Yates, 2012 BCPC 250 R. v. Patillo, 2012 BCPC 299 , 2012 BCPC 0299 R. v. Proulx, 2000 SCC 5, [2000] SCR 61, [2000] SCJ No. 6 (QL) R. v. CAM, (SCC), [1996] SCR 500, [1996] SCJ No. 28 (QL) R. v. Foianesi, 2011 MBCA 33, 2011 CarswellMan 194 (WL Can) APPENDIX B Defence Cases R. v. Fallofield, (BC CA), [1973] BCJ No. 559 R. v. Jassal, [2007] BCJ No. 1589 R. v. Nguefang, [2011] AJ No. 1086 R. v.

Reyes-Borgwardt, [2010] BCJ No. 2183 R. v. Sanborn, [2011] BCJ No. 1172 R. v. Zhang, [2008] BCJ No. 966