R. v. Wernicke Date:, 2012 BCPC 451

Citation: R. v. Wernicke Date: 20121207 2012 BCPC 0451 File No: 223509-1-V Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JERRY H. WERNICKE EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE C. L BAGNALL Counsel for the Crown: S. Smith Kerr Counsel for the Defendant: W. M. Finch, Q.C. Place of Hearing: Vancouver , B.C. Date of Judgment: December 7, 2012 [ 1 ] THE COURT: On June the 21st, 2012, Jerry Wernicke entered a plea of guilty to a charge of participating in a riot. He is to be

sentenced today. I wish at the outset to express my appreciation to both counsel for their articulate and helpful submissions and for the well-organized and thorough materials and precedents which were provided to me with respect to these matters. [ 2 ] The events which gave rise to this charge occurred on June the 15th, 2011. After the final game of the hockey season, a mob formed in the downtown core of Vancouver. Lawlessness reigned for hours. Citizens and police officers were assaulted. Vehicles were destroyed, sometimes burned to a shell.

Businesses were broken into and looted. [ 3 ] Thousands of people, mostly young people, were involved in inciting the riot, participating in the riot, watching, filming, and cheering. Every one of those persons contributed to the destruction of the peace and order that this community generally enjoys. The context of Mr. Wernicke's offence was that riot. [ 4 ] A great deal has been said about the Stanley Cup riot.

The circumstances in general are set out in the admissions of fact, Exhibit 3 in these proceedings, and I do not find it necessary to repeat them here. [ 5 ] Dozens of cases respecting charges arising out of riots were provided to me and I have read and considered all of them. I intend to file a list of those cases as Exhibit 7 in these proceedings. I have added to the original index handwritten citations for the cases that were handed to me during submissions and which I have also read and considered. [ 6 ] I am going to file as Exhibit 8 the sentencing chart provided to me by counsel for the Crown.

The cases and the chart are useful because they delineate the range of sentences which have historically been handed down for rioting offences and the range of sentences which have resulted for offenders involved in the events of June the 15th, 2011. I do wish to highlight that two of the cases that I have considered have been appealed by the Crown. Those cases are R. v. Peepre and R. v. Kennedy Williams . I do not intend to refer to any of the cases in detail. [ 7 ] Now that so many of those charged as a result of the riot have been sentenced, I believe the principles are fairly clear.

Because of the nature of a riot, the primary considerations in sentencing must be deterrence and denunciation, but rehabilitation, especially for a youthful offender, must not be ignored. Sentencing is always an individual process. Every sentence must reflect and respond to the unique circumstances of the offender and the unique circumstances of his or her offence. [ 8 ] Here, the Crown takes the position that a sentence of three months' incarceration is appropriate and asks, in addition, that a period of probation be imposed. The Crown is not opposed to an order that Mr.

Wernicke serve his sentence intermittently, but does oppose the imposition of a Conditional Sentence Order. [ 9 ] This is what Mr. Wernicke did. On the day in question, he attended the game with a friend. He consumed alcohol during the game. As the game concluded, unhappily for the Vancouver fans, Mr. Wernicke's friend left him in the arena. Mr. Wernicke went out of the arena by himself and joined a group of people who were surrounding two marked police vehicles in a parking lot located at 688 Cambie Street. One of the vehicles had already been turned onto its side by the rioters. [ 10 ] Mr.

Wernicke joined the group, helping to push that vehicle back into an upright position on its tires. In spite of the efforts of some persons in the area to stop the destruction, the group of rioters continued to attack the two police vehicles. Exhibit 2, which is the DVD showing these events, shows exactly what occurred with Mr. Wernicke. [ 11 ] One forms the impression that it is almost as if the rioters were taking turns attacking the vehicles. A person would run forward, commit some sort of mischief to the vehicle, run back, and someone else would then, as I say, take a turn. Mr.

Wernicke may be seen cheering and clearly enjoying the destruction in the background as all of this unfolded. [ 12 ] He also took a turn, if I can express it that way, pulling a pallet that had already been thrown or pushed onto the police vehicle away from its position on the vehicle and then throwing it back with some force at the window of the vehicle. The two marked police vehicles were eventually completely destroyed, burned by the crowd. [ 13 ] Mr.

Wernicke remained in the downtown core for some time watching and filming the actions of other rioters, but this is the event, that is, with the marked police cars, in which he was actively involved. [ 14 ] Mr. Wernicke turned himself in to the police within days and that was on June the 22nd, 2011, after he saw his photograph displayed online. He has, it is clear, always intended to take responsibility for his actions by entering a plea of guilty with respect to this charge. [ 15 ] Apart from his behaviour on that awful night, Mr. Wernicke was and is an outstanding young citizen of his community.

He was 28 years old at the time of these events. He was and is an employed person. He has hobbies and interests and he is also a tireless volunteer contributing much more than the average person to the lives of those less fortunate than he is. [ 16 ] I have read and considered the presentence report which is Exhibit 5 in these proceedings. I have read the numerous letters of support written by his family, his girlfriend, his co-workers, and his friends.

I have also read his autobiography which was provided to me and his letter of apology, and all of those last documents are included in Exhibit 6. [ 17 ] I listened carefully as Mr. Wernicke addressed the court during sentencing proceedings. There is no question that he is profoundly remorseful for his criminal behaviour.

It could not have happened in his life before and I am satisfied it will never happen again. [ 18 ] The defence seeks a sentence of three to six months to be served conditionally or a sentence in the range of 21 to 30 days to be served intermittently. [ 19 ] I am satisfied that in this case, given his age and maturity at the time and given his involvement in the destruction of a marked police vehicle and his encouragement of other rioters, that only a jail sentence which actually incarcerates Mr. Wernicke is consistent

with the fundamental purpose and the numerous principles of sentencing. However, the appropriate sentence is less than 90 days and I am satisfied that it should be served intermittently. [ 20 ] Mr. Wernicke, would you stand, please. [ 21 ] You are going to serve a sentence of 30 days intermittently. You will serve the first day today and then you will report where you are directed at 7:00 p.m. each Friday commencing on December the 14th, 2012, and continuing until the following Sunday at 3:00 p.m.

Those are three-day weekends and you will serve those weekends until you have served your entire sentence. [ 22 ] While you are not in custody, you will be bound by a probation order. The statutory conditions will apply and I will add no other conditions. The order will be prepared in writing. It will be read and explained to you. A copy will be given to you. I delegate to the clerk of the court the other responsibilities I have under the Criminal Code . [ 23 ] There will be no surcharge with respect to this matter. [ 24 ] Ms. Smith Kerr, you want to stay Count 2, do you? [ 25 ] MS.

SMITH KERR: Yes. [ 26 ] THE COURT: Thank you. [REASONS FOR SENTENCE CONCLUDED]