R. v. Dorosh Date:, 2012 BCPC 370

Citation: R. v. Dorosh Date: 20121024 2012 BCPC 0370 File No: 223511 Registry: Vancouver Criminal IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. Richard John William DOROSH REASONS FOR SENTENCE OF THE HONOURABLE JUDGE W.J. KITCHEN Counsel for the Crown: Daniel J. Porte Counsel for the Defendant: Jeffrey R. Ray Place of Hearing: Vancouver , B.C. Date of Hearing: August 23, 2012 Date of Judgment: October 24, 2012

[ 1 ] Dorosh has pled guilty to the charge that on or about the 15 th day of June, 2011, at or near Vancouver, in the Province of British Columbia, he did take

part in a riot, contrary to

Section 65 of the Criminal Code . [ 2 ] On June 15, 2011, the Vancouver Canucks lost the seventh and final game of the Stanley Cup Final Series to the Boston Bruins. The game ended at about 7:45 p.m. and a few minutes later a riot began in the downtown core of Vancouver that lasted until about 12:30 a.m. on June 16, 2011.

During the game there had been approximately 155,000 people in the downtown core of Vancouver at various venues including public outdoor viewing locations, private residences, restaurants and bars, and Rogers Arena where the game was played. [ 3 ] Dorosh had watched the hockey game at a friend’s house in Surrey and shortly thereafter he and two or three friends took the Skytrain from the home in Surrey into downtown Vancouver.

Their intention was to “take some pictures” – they were obviously expecting that something was going to happen. [ 4 ] As the Dorosh group travelled into Vancouver, the crowd in the downtown core did not disperse; everyone remained in the main public viewing site around the Vancouver Public Library where about 55,000 people had watched the game. The crowd appeared to be expecting something to happen. The media had the same expectation – they kept their cameras in place, trained on the crowd. No one had to wait very long. [ 5 ] In this area two private vehicles were parked in front of the Canada Post Building.

The riot began when one of these vehicles was overturned by the crowd and set on fire, being totally destroyed by 8:00 p.m. As this occurred, the other vehicle was attacked by the crowd. At first police and fire fighters were able to chase them away. The fire was put out but the crowd forced its way back, overturned this second vehicle and set it on fire so that it was also destroyed. [ 6 ] The rioting crowds occupied West Georgia Street and the surrounding areas, breaking into and looting the many commercial premises as they went. Vehicles were vandalized, broken into and set on fire.

Crowds of people faced off against the police and threw projectiles at them. Many police and civilians were attacked and assaulted. An atmosphere of lawlessness, violence and destruction quickly consumed the downtown core of Vancouver. [ 7 ] As the riot moved west along Georgia Street the crowd crossed Richards Street and then Seymour Street, in the 600 block of each street. The Parkwell Plaza Parkade is located at 655 Richards Street and at the time of the riot there were seven vehicles parked in the outdoor street level of the Parkade. Two of these vehicles were Hummers.

Ultimately, many vehicles in the Parkade were damaged, overturned and/or destroyed by fire. [ 8 ] At Seymour Street, three blocks from where the riot started, the crowd came to the Hudson’s Bay Company Department Store that spans an entire block. The crowd began to break the windows of the store and loot the merchandise. Soon hundreds of rioters were engaged in this. At the time, there were still 70 to 80 employees within the store since The Bay had intended on remaining open for business until 9 p.m.

The employees were moved to the 7 th floor of the building for their safety. [ 9 ] At about 9:25 p.m. cars parked in the 600 block of Seymour Street adjacent to The Bay were vandalized. These vehicles were an Audi, a Ford Fusion and a BMW M5. All three vehicles were vandalized, set on fire and ultimately destroyed. The smoke from these burning vehicles entered the broken windows of The Bay causing its fire alarm and sprinkler system to activate. This caused massive water damage to the area inside the broken windows and on the floors below.

In addition, some of the staff within the store believed that the building was on fire and the employees were evacuated from the 7 th floor back through the main floor where the rioters were present and out onto the streets through the riot itself. [ 10 ] The Bay suffered extensive damages as a result of the riot. All of the ground floor windows and some second floor windows of The Bay were broken. There was damage to the outside canopy from fire and from rioters climbing on it. There was smoke and water damage on the ground floor and sub floors. There was significant merchandise loss, and construction repair.

The financial loss to The Bay was $1,246,090.20 for loss of looted property, physical damage to merchandise and the store itself, and related costs such as trauma counselling for the employees. [ 11 ] A Victim Impact Statement filed on behalf of one of the employees provides frightening detail of the experience of the store staff during the riot. This employee, a Loss Prevention Officer, was at home but hurried to The Bay when he saw news of the riot on television.

In his statement he said, in part, … we ran to the main floor to find all of the LPO’s along with a regional LP manager … and the store director … who were all standing in the main aisle watching as people from the outside were smashing our coach windows on the Seymour Street and grabbing coach purses and running away. We knew there were at least 100 associates and injured customers upstairs hiding … We were instructed to stand back and tell whoever entered the store that they were being recorded and to leave The Bay immediately.

The people involved didn’t seem to care and continued to swear at us and threaten us, break our glass using 24 hour newspaper boxes and rocks. One group of people came in through the coach window and grabbed a mannequin and exited the same window only to throw the mannequin back through a coach window on Georgia. I watched as groups of people would beat up individuals including women outside the store. We watched as they lit cars on fire just outside The Bay on Seymour Street. (We) yelled at them to get away from the burning cars in case they blew up but they did not listen.

I watched as a girl was thrown head first through a piece of glass as people were laughing and screaming. … we went to the coach stock room and unlocked it to find many individuals running out carrying bags and bags of coach purses, two of the men engaged in physical contact with us and we were forced to throw knee strikes and even punches to the face to defend ourselves and in order to get them out the door. We were finally able to secure the room but it looked bare because so much had been taken already.

We started to hear loud crashes and bangs throughout the store and realized the rioters were now attacking all of the windows on the main floor perimeter. … The cars that were aflame on Seymour had now caught The Bay’s outside awning on fire as well as setting our fire alarms off and sprinklers in some areas.

We started to gather all the fire extinguishers we could in the store in case the fire moved inside but we soon realized that we could use the extinguishers to detour people from coming inside … Rioters threw what seemed to be tear gas into The Bay through the broken watches window causing us (to be) unable to breathe, the LPO’s then grabbed shirts and wrapped them around our faces allowing us to breathe. Rioters attacked … opening up tills and taking money and

throwing fragrance sets and rocks at us when we tried to get them out of the store. I witnessed as at least two civilians who were trying to protect the outside of The Bay by standing in between the rioters and The Bay got dragged into the street by numerous people and got beat up. … I ran to find a mob of rioters attacking the west Georgia doors, breaking the windows and kicking in the doors even taking them off their hinges yelling they were going to kill us.

At around the same time all of the associates started to come down the escalators thinking the building was on fire … They were panicked and hysterical and wanting to leave, a few of the LPO’s guided them to the loading dock area in the back alley of The Bay and led them through the rioters to safety at the Burrard Bridge … We continued to fight off rioters who were attacking us from all angles for approx 2 ½ hours until the riot squad on horses showed up … Many of the LPO’s sat down for hours afterwards in exhaustion … staff who were working that night were provided trauma counseling by HBC for weeks after the riot. [ 12 ] Another store employee, the Human Resources Manager, was on the main floor during the riot.

She helped bring in two injured girls as first one, and then all store windows were taken out by the crowd. She observed, “People thought it was 9-11 all over again. They were phoning home and saying that they were not going to make it.” Another manager said the main floor was “like World War III. They were just panicked. We have associates that won’t come to work anymore and continue to suffer panic attacks.” [ 13 ] Dorosh and his friends had arrived at the Waterfront Skytrain Station at about the time the rioters began their attack on the Parkwell Plaza Parkade and The Bay.

He saw the smoke, and walked toward it arriving in time to see the Hummers on fire. Dorosh was in the crowd outside The Bay in the 600 block of Seymour Street between 9:30 p.m. and 10:00 p.m. and during that time he was captured in still photographs stealing a purse that he looted from inside The Bay.

He was also recorded in a video clip attempting to ignite the rear seat area of the Ford Fusion on Seymour Street; that vehicle was later destroyed by fire. [ 14 ] The video clip is on the DVD which is Exhibit #2 in these proceedings and it features a young female on the street who is seen trying to dissuade the crowd from their depredations. She is mocked by the crowd while they yell, scream, cause damage to vehicles and steal merchandise from within The Bay.

While this is going on Dorosh can be seen in the background placing a burning item in the rear seat of the Ford Fusion, leaving, and then returning about a minute later and apparently looking in the same area within the vehicle. He is seen a third time on the same clip passing the area of the vehicle within the next minute, and then again three or four minutes later.

He was also recorded at about the same time on a video recording taken from within The Bay as he passed by one of the broken windows. [ 15 ] After Dorosh placed the burning object in the vehicle there were fires in the rear seat and two areas on the front dash and front seat.

Bystanders attempted to remove the different sources of fire inside the vehicle in order to prevent it from being consumed and although they were initially successful, the vehicle was ultimately set on fire again and completely destroyed. [ 16 ] Sometime after the vehicle was set on fire Dorosh entered The Bay through a broken window less than five metres from the burning vehicle. He picked up a black Coach purse and fled the store; photographs of this are shown on the same DVD and one of these photographs appeared in the Province Newspaper three days after the riot.

Dorosh remained in Vancouver for the duration of the riot and then returned home to Surrey. [ 17 ] Exhibit 4 in these proceedings, Impact of the Riot , gives a

summary of what occurred during the riot. 1035 emergency personnel were deployed to the downtown core of Vancouver including Vancouver Police, RCMP, Fire Services and Ambulance Services. Because of danger to ambulance attendants within the riot area the regular units had to withdraw and leave six special tactical attendants to deal with emergency situations. There were 150 emergency room visits at St. Paul’s Hospital and a further 100 patients dealt with in a special decontamination area to deal with tear gas and pepper spray cases.

The police recorded 26 arsons, 193 mischiefs, 26 break and enters, 52 assaults and 116 arrests. 112 businesses were damaged, 122 vehicles damaged or destroyed, and there was a total monetary loss in excess of $3,778,190.52. [ 18 ] On June 18, 2011, three days after the riot, the Vancouver Province newspaper published a photograph of Dorosh exiting The Bay with the stolen purse. On the same date a friend of Dorosh attended at the Vancouver Police Department to advise them of his

part in the riot and he also told the police officer that Richard Dorosh was present and had stolen a purse from The Bay during the riot. [ 19 ] The next day Dorosh phoned his counsel, Jeffrey Ray, concerning the matter and went to see him on June 22, 2011. Inquiries were made by Mr. Ray concerning having Dorosh turn himself in to police but nothing was resolved as the investigation was just beginning. [ 20 ] About ten days after the photograph was published in The Province a police officer called Dorosh’s home and spoke with one of his parents.

As a result Dorosh himself attended to the Vancouver Police Department to give a statement. [ 21 ] Dorosh advised the police that he had watched the hockey game at a friend’s house in Surrey, during which time he had a couple of beers, but was not too intoxicated. He and his friends travelled by Skytrain and arrived at Waterfront Station at approximately 8:00 p.m. or shortly thereafter. They walked toward the smoke and saw the Hummers on fire. Dorosh said he entered The Bay through a broken window and took pictures of the crowd both inside and outside the store.

He saw people running out of The Bay with purses and one of those people handed a purse to his friend, who took it and ran out of the store with it. Dorosh then picked up a purse that was lying on the floor inside the store and ran outside of the store with it. He later gave the purse away to an unknown female outside the store. After leaving downtown he and his friends arrived home at approximately 11:45 p.m. [ 22 ] After pleading guilty to this charge Dorosh spoke to a Probation Officer to prepare a Pre-Sentence Report. He gave a somewhat different account of his

part in the riot. He said that he went downtown to take pictures with some friends and got caught up in the moment and ended up stealing a purse at the Hudson Bay Company. He advised that he had been intoxicated prior to the incident as he had consumed about 8 beers and then he took a “mickey” with him. He advised that when he got the purse he gave it to some random female. He advised that after this he still stayed around for a few hours taking pictures. He advised that he does not know why he committed this offence and feels like an “idiot”. [ 23 ] It is significant that in neither account to the police and probation officer did he make any mention at of his attempt to light the

Ford Fusion on fire. Through counsel he advises that, “He did not remember that event.” I cannot accept that. In the videos he may beobserved in the area of the car on four occasions over a period of five minutes behaving in a purposeful way with no obvious effectsfrom any intoxicants. Within minutes of those incidents he stole the purse and was captured in several still images taking flight from thestore in a full out sprint.

There is no possibility that he would have no recollection of the much more serious incident attempting to lightthe car on fire when he had full recall of his theft of the purse just minutes later. Crown’s Submission [24] Mr. Porte on behalf of the Crown submits that two important principles apply to these proceedings – social responsibility andthe rule of law. Those principles require that general deterrence and denunciation be emphasized and therefore a sentence of four to sixmonths in jail followed by probation with community work service of 150 hours is required.

The Crown is opposed to anything less thaninstitutional incarceration and in particular is opposed to a Conditional Sentence Order. [25] In determining the appropriate sentence the Crown says to look to four issues: the context of the riot, the accused’sparticipation, the principles in

Section 718 and 718.2 of the Criminal Code, and the accused’s personal circumstances. The context of the riot [26] The context of the riot is important, says the Crown, and cites Regina v. Dickinson, 2012 BCPC 40 , [2012] B.C.J. 314,where at paragraph 16, MacLean J. says, One must consider the offender’s actions as part of a riot to determine his degree of moral culpability. The offender is inextricablylinked to others who participated in the riot. He must be sentenced as a participant in the riot and his particular acts should not beconsidered in isolation. Mr.

Dickinson’s participation in the destructions of the police vehicles, being acts of a riot, must be consideredin this context of the riot as a whole. R. v. Breault, [1991] J.Q. No. 1204; R. v. Blackshaw,

(2011) EWCA Crim 2312. [27] Mr. Porte points out the observation of our Court of Appeal in R. v. Loewen, (1992) (BC CA), 75 CCC (3d)184, BCCA, where at paragraph 12 the court concluded, “His actions encouraged others to take

part in the riot.” [28] He also cites R. v. Fuller, 1995 J.E. 95-1118, (Que Mun Ct), where at paragraph 45 & 46 the court says, But there is more. At 12:10 p.m. officer Apestiquy sees the accused jump on top of a garbage can, pull at the “ONE WAY” sign anddisplay a smile after succeeding in his attempt to take the sign from the pole at the St. Marc and Ste. Catherine intersection. Those acts must be analyzed in the context of the riot. The gravity of the act does not lie in the destruction of the sign itself. The relativeminor offence of damaging and removing a “ONE WAY” sign installed on a pole, at the St.

Marc and Ste. Catherine intersection,becomes much more serious when it is committed during a full blown riot. His actions have a direct impact on the multitude. His actsencourage others to take

part in the riot. It contributes to the excitement, fervour, intimidation and dangerousness of the unlawfulassembly. [29] Finally, concerning the context of the riot, Mr. Porte refers to the recent compendious case of the English Court of Appealdealing with various riot offences that occurred in early August of 2011. In Regina v. Blackshaw et al, [2011] EWCA Crim 2312 Times,the court said beginning at paragraph 5, 5. This is not new found sentencing policy.

In the context of a riot in Cambridge some 40 years ago, this court observed: "When there is wanton and vicious violence of gross degree the court is not concerned with whether it originates from gang rivalry orfrom political motives. It is the degree of mob violence that matters and the extent to which the public peace is broken… Any participation whatever, irrespective of its precise form, in an unlawful or riotous assembly of this type derives its gravity frombecoming one of those who by weight of numbers pursued a common and unlawful purpose.

The law of this country has always leantheavily against those who, to attain such a purpose, use the threat that lies in the power of numbers… In the view of this court, it is a wholly wrong approach to take the acts of any individual participator in isolation. They were notcommitted in isolation and, as already indicated, it is that very fact that constitutes the gravity of the offence." (R v Caird [1970] 54 Cr.App. R 499 at 506.) 6. This approach reflects consistent sentencing policy for many years and continues in force today. 7.

The broad submission on behalf of each appellant is that the sentences passed on the individual offender for his or her individualoffence were disproportionately severe. If the court were dealing with a single isolated offence, that submission would haveconsiderable force.

If, for example, a young man went down a quiet street in the middle of a town miles away from any rioting, butat a time when rioting was occurring miles away elsewhere, and broke into shop premises and there, without causing any damage,stole some cigarettes, and then left the premises, for the unfortunate shopkeeper to discover on the following morning that he hadbeen burgled, the case would be serious enough. It would properly be dealt with in accordance with sentencing principles as the

offence that it was, an offence without the aggravating feature that the offence formed part of the mob criminality which producedthe public disorder. 8. It is elementary that sentencing courts cannot ignore the context in which the crime or crimes for which sentence is to be passedwas committed. It is an essential feature in the assessment of culpability. In some cases, the context would provide the mostpowerful mitigation, for example, a genuine mercy killing as a final act of love and devotion.

In other cases, including the presentappeals, the context hugely aggravates the seriousness of each individual offence. None of these crimes was committed inisolation. Eight of them were intrinsic to or arose from the widespread lawlessness and two more were intended to contribute to oraggravate it at a time when the disorders were at their most disruptive and alarming. 9. It was observed on behalf of some of the appellants that their involvement followed earlier criminal activity by others.

While thatis factually correct, it provides no mitigation whatever for criminal activity which created or exacerbated the public disorderproblem with which police and fire officers were dealing. The reality is that the offenders were deriving support and comfort andencouragement from being together with other offenders, and offering comfort support and encouragement to the offenders aroundthem. Perhaps, too, the sheer numbers involved may have led some of the offenders to believe that they were untouchable andwould escape detection.

That leads us to address the suggestion that perhaps this level of public disorder should be treated as"mindless" activity. It was undoubtedly stupid and irresponsible and dangerous. However none of these appeals involves childrenor young offenders (where different sentencing considerations arise) nor indeed offenders with significant mental health problems.None of the offenders before us was "mindless". The actions were deliberate, and each knew exactly what he (and in one case, she)was doing. [30] Mr.

Porte concluded his submission concerning the context of the riot with this statement, A riot is the time when chaos overcomes peace. Each individual rioter is able to commit crime with impunity believing their actions arein amongst a group, finding comfort in anonymity. In truth, it is each individual rioter’s actions that encourages others to commit crime,and emboldens others to break the law. That’s why, when sentencing a rioter, he must be sentenced for his participation in the riot as awhole and not just for his individual actions.

Accordingly we must look at the factual context within which the individual riotercommitted his crimes (and he referred then to Exhibit 4 in these proceedings, Impact of the Riot, incorporated into the recitation of factssupra) Denunciation & Deterrence - [31] The Crown submitted that denunciation and general deterrence are the two sentencing principles that must be emphasized incases of rioting. With regard to the former, Mr. Porte cited the Supreme Court of Canada in R. v.

M. (C.A.), (SCC),[1996] 1 S.C.R. 500, where at paragraph 81 the court said, Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation. Retribution requires that a judicialsentence properly reflect the moral blameworthiness of that particular offender. The objective of denunciation mandates that a sentenceshould also communicate society's condemnation of that particular offender's conduct.

In short, a sentence with a denunciatory elementrepresents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code ofvalues as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App. R. 74, at p.77: "society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can showthis is by the sentences they pass".

The relevance of both retribution and denunciation as goals of sentencing underscores that ourcriminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasingthe cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A sentence whichexpresses denunciation is simply the means by which these values are communicated.

In short, in addition to attaching negativeconsequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set ofcommunal values shared by all Canadians as expressed by the Criminal Code. [32] Concerning general deterrence he cited Regina v.

Blackshaw et al, [2011] EWCA Crim 2312 Times, where at paragraph 4 thecourt said, There is an overwhelming obligation on sentencing courts to do what they can to ensure the protection of the public, whether in theirhomes or in their businesses or in the street and to protect the homes and businesses and the streets in which they live and work. This isan imperative. It is not, of course, possible now, after the events, for the courts to protect the neighbourhoods which were ravaged in theriots or the people who were injured or suffered damage.

Nevertheless, the imposition of severe sentences, intended to provide bothpunishment and deterrence, must follow. It is very simple. Those who deliberately participate in disturbances of this magnitude, causinginjury and damage and fear to even the most stout-hearted of citizens, and who individually commit further crimes during the course ofthe riots are committing aggravated crimes. They must be punished accordingly, and the sentences should be designed to deter othersfrom similar criminal activity. [33] Further concerning general deterrence the Crown cites our Court of Appeal in R. v.

Loewen, (1992) (BCCA), 75 CCC (3d) 184, BCCA, where at paragraph 9 the court observes, Care must be taken at the same time to preserve the message of general deterrence.

And at paragraph 13 the court says, Taking into account all the foregoing circumstances I am of the view that in this case the sentencing principle of not imposing a custodial sentence upon a first time offender must yield to the imposition of a custodial sentence that will recognize the principle of general deterrence. [ 34 ] In regard to the need for general deterrence, the Crown filed as Exhibit 5 in these proceedings a list of riots during community gatherings in Canada which for the past 25 years included the following: 1. 1986 – Kelowna, BC – Regatta Festival riot 2. 1986 – Montreal, PQ – Stanley Cup Riot 3. 1991 – Penticton, BC – Peach Festival Riot 4. 1993 – Montreal, PQ – Stanley Cup Riot 5. 1994 – Vancouver, BC – Stanley Cup Riot 6. 1996 – Montreal, PQ – Fete National Riot 7. 1997 – Montreal, PQ – Fete National Riot 8. 1997 – Parksville, BC – Sandcastle Competition Riot 9. 2001 – Edmonton, AB – Canada Day Riot 10. 2006 – Edmonton, AB – Stanley Cup Riot 11. 2008 – Montreal, PQ – Stanley Cup Riot 12. 2010 - Montreal, PQ – Stanley Cup Riot 13. 2011 - Vancouver, BC – Stanley Cup Riot 14. 2012 – London, Ont. – St.

Patrick’s Day Riot [ 35 ] Finally, concerning general deterrence, the Crown submits that the most serious aspect of Dorosh’s participation in the riot was his act of arson and that for offences of arson, general deterrence has been held to be the primary sentencing concern: Regina v. Engler , [1994] BCWLD 2464, (BCCA) , Regina v. Deen , [1997] BCJ no. 2657 (BCCA) , and Regina v. Cootes, [2011] BCCA 398 (BCCA). [ 36 ] The attempt by Dorosh to ignite the Ford Fusion on fire risked the lives of those present, including those inside The Bay.

The Crown says that his actions encouraged others and ultimately the vehicle was totally destroyed, setting off alarms and detectors within The Bay. [ 37 ] The Crown says that it was additionally aggravating that in the case of Dorosh, he was involved in more than one discrete criminal act when participating in the riot. Not only was the arson serious, but the looting was serious. In the Crown’s submission, looting is exceptionally serious because it is specific to and characteristic of a riot. Looting is the plundering of goods by hordes of people committing contemporaneous acts of break and entry.

The effect is to cause a tumultuous breach of the peace. Mr. Porte concluded by saying that looting is integral to a riot and this riot was no exception. At total of 26 stores were looted, including London Drugs where 300 looters were involved and The Bay where hundreds more were involved. Some of the victimized stores were totally destroyed. [ 38 ] Mr. Porte then discussed many cases similar to the present where there was a young adult offender, often with no criminal record, who had engaged in a riot by committing various criminal acts. Mr.

Porte demonstrated and I conclude that these cases show a range of sentence generally indicating incarceration from 45 days to 18 months, but including a few cases of Conditional Sentence Orders at the lower end of the range. I am aware that a suspended sentence has been imposed in a minor case. The Crown concluded by saying the present case is not at the lower end of this range because of the multiple, relatively serious offences committed by Dorosh and therefore a sentence of four to six months is justified. Defence Submission [ 39 ] Mr.

Ray stated at the outset that he believes a Conditional Sentence Order would serve the purposes of this case. He said that this is justified when one considers four aspects of this case: that the accused should be sentenced for his own acts, that these acts were out of character, that he is a first offender, and that he is not a danger to society. [ 40 ] Concerning his first point, that the accused must be sentenced for his own acts, Mr. Ray says that the court must be careful to

not over-emphasize the issue of putting the acts of the accused in the context of the riot. He said that the accused should not be punishedfor acts over which he had no control. As an example, he pointed out that on the video clip that showed Dorosh walking by the front ofThe Bay during the riot one can also see a young woman violently attacked and assaulted by a male when she tried to prevent that personfrom breaking a window on the front of The Bay. Mr. Ray said it is clear that Dorosh did not aid or abet that violent act and there mustbe strict limits on the concepts of common purpose and commonality.

Each accused must be differentiated and the court must avoid“sentencing the mob” – otherwise the court’s sentence simply becomes part of the public clamour. [41] Mr. Ray next pointed out that many of the sentencing cases dealing with the offence of rioting pre-date the inception of theConditional Sentence Provisions of the Criminal Code. He submits that these relatively new statutory amendments limit the usefulnessof such precedents. As an example, he referred to our Court of Appeal in R. v.

Loewen, (1992) (BC CA), 75 CCC(3d) 184, BCCA, where the majority endorsed a jail sentence of six months but Wood J. in dissent would have imposed a sentence oftime served and probation. Mr. Ray said the result of that case if it were heard today may well be the compromise position of aConditional Sentence Order. [42] Mr. Ray next emphasized the youth and clear record of his client. He said that Dorosh turned 18 and became an adult offenderonly two weeks prior to the riot, and both as a youth and an adult he had no criminal record. [43] As to his involvement in the riot, it was not pre-meditated.

He came to Vancouver with his friends to take some pictures ontheir telephones. Having “headed for the smoke”, the group found themselves in the area of The Bay’s display windows where they tookpictures of that surreal site. He stole the purse on an impulse, because it was “something to do.” As to the act of arson which he lateradmitted, he said that he picked up some burning paper near the area of the Ford Fusion and put it in the vehicle because he, “was caughtup in the moment.” [44] Mr. Ray discussed the contrition his client experienced.

The day following the riot, on June 16 and continuing to June 17, 2011,Dorosh experienced severe stomach pain and ‘flu-like symptoms that required that he be hospitalized in Surrey Memorial Hospital. Itwas later determined that he was suffering pangs of guilt and stress from his realization of what he had done. As part of these sentencingproceedings Mr. Ray filed a letter of apology from Dorosh that said, in part, Please allow me to apologize for my actions on Thursday, June 16th, 2011. My actions were extremely inappropriate, immature and putpublic safety at risk. I sincerely regret ever taking

part in the riot, and I will never include myself in such destructive behaviour again. ... I have had more than a year to think about what I have done, and there isn’t a day that goes by without feeling complete regret. I takefull responsibility and understand that I must face the consequences of my regrettable actions. [45] Mr. Ray said that from the time the picture of Dorosh was published in The Province he has been publicly embarrassed andstigmatized. His name and the charges have been published on many occasions. He received, through his lacrosse team, a request fromthe media for an interview. Mr.

Ray says that the continuing embarrassment has effectively denounced Dorosh’s conduct and no furtherdenunciation is necessary. [46] Mr. Ray next discussed the following provisions of the Criminal Code of Canada: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and, without limiting the generality of the foregoing, o (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour,religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, o (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, o (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, o (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, o (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization,or

o (

v) evidence that the offence was a terrorism offence shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [ 47 ] In particular he asked the court to pay special heed to the requirement to consider all available sanctions other than imprisonment that are reasonable in the circumstances. In this regard he argued the court can order reparations for harm done to victims or to the community.

The court could use a Conditional Sentence Order to effect restorative justice by requiring that a supervisor meet with members of The Bay and the City of Vancouver to arrange a special program for offenders such as Dorosh. [ 48 ] With regard to general deterrence and how that might be facilitated by a Conditional Sentence Order Mr. Ray cited the case of Regina v. Proulx , [2000] SCC 5, at the following paragraphs: 82 This Court has held on a number of occasions that sentencing is an individualized process, in which the trial judge has considerable discretion in fashioning a fit sentence.

The rationale behind this approach stems from the principle of proportionality, the fundamental principle of sentencing, which provides that a sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender. Proportionality requires an examination of the specific circumstances of both the offender and the offence so that the “punishment fits the crime”. As a by-product of such an individualized approach, there will be inevitable variation in sentences imposed for particular crimes.

In M. (C.A.) , supra , I stated, at para. 92: It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. . . . Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.

As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred. 90 First, a consideration of ss. 718.2 (

d) and 718.2 (

e) leads me to the conclusion that serious consideration should be given to the imposition of a conditional sentence in all cases where the first three statutory prerequisites are satisfied. Sections 718.2 (

d) and 718.2 (

e) codify the important principle of restraint in sentencing and were specifically enacted, along with s. 742.1, to help reduce the rate of incarceration in Canada. Accordingly, it would be an error in principle not to consider the possibility of a conditional sentence seriously when the statutory prerequisites are met.

Failure to advert to the possibility of a conditional sentence in reasons for sentence where there are reasonable grounds for finding that the first three statutory prerequisites have been met may well constitute reversible error. 102 Denunciation is the communication of society's condemnation of the offender's conduct. In M. (C.A.) , supra , at para. 81 , I wrote: In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law.

As Lord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App. R. 74, at p. 77 : “society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass”. Incarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a more lenient sentence than a jail term of equivalent duration. That said, a conditional sentence can still provide a significant amount of denunciation.

This is particularly so when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances. I will discuss each point in turn. 105 The stigma of a conditional sentence with house arrest should not be underestimated. Living in the community under strict conditions where fellow residents are well aware of the offender’s criminal misconduct can provide ample denunciation in many cases.

In certain circumstances, the shame of encountering members of the community may make it even more difficult for the offender to serve his or her sentence in the community than in prison. 109 While incarceration may provide for more denunciation and deterrence than a conditional sentence, a conditional sentence is generally better suited to achieving the restorative objectives of rehabilitation, reparations, and promotion of a sense of responsibility in the offender. As this Court held in Gladue , supra , at para. 43, “[r]estorative sentencing goals do not usually correlate with the use of prison as a sanction”.

The importance of these goals is not to be underestimated, as they are primarily responsible for lowering the rate of recidivism. Consequently, when the objectives of rehabilitation, reparation, and promotion of a sense of responsibility may realistically be achieved in the case of a particular offender, a conditional sentence will likely be the appropriate sanction, subject to the denunciation and deterrence considerations outlined above.

[49] Mr. Ray pointed out that there have been two Conditional Sentence Order sentences in G-20 Riot cases, Regina v. Henry,[2011] ONCJ 501, and Regina v. Coon, [2012] ONCJ 72. In each of those cases the accused was not charged under

Section 65 of theCriminal Code where the maximum sentence is two years imprisonment but was charged with other substantive offences that werecommitted during a riot. Those offences, mischief, being disguised with intent, and arson, each attracted greater maximum sentencesthan the riot charge. Nevertheless, in each case, the court was satisfied that general deterrence was effected with a Conditional SentenceOrder. [50] In concluding his request for a Conditional Sentence Order Mr. Ray stressed the following points in mitigation. Dorosh is ayouthful first offender – quite different from many adult offenders.

He is remorseful, having turned himself in to the police. Since theriot he has continued to be a responsible citizen, graduating from high school and maintaining steady employment. He does not abusealcohol or drugs, nor does he have any psychological disorders. He is not dangerous to the public. His offences were impulsive andinvolved no premeditation. [51] In the alternative Mr. Ray says that a sentence which would qualify as an intermittent sentence could also be considered andDorosh could serve the sentence on weekends to that it would not interfere with his employment. Background of the Accused [52] Mr.

Dorosh was born June 1, 1993 and is therefore now 19 years old. He has resided in Surrey his whole life and has threeolder sisters who no longer reside in the family home. Dorosh resides with his mother and her partner, Barry Buckland. [53] Dorosh was raised by both parents until he was nine or ten years old when his father left, according to his mother after the fatherassaulted Dorosh. Until that event his parents fought regularly because his father had a very bad temper.

After his father left Dorosh didnot talk to him for about a year, but now gets along with him “ok”. [54] Dorosh completed Grade XII at Kwantlen Park School. He is interested in going to film school and he and his mother arepresently looking into various programs of that type. He is also looking for employment in the movie industry. [55] Dorosh works part-time at Laughlines in New Westminster – a nightclub. He works 20-28 hours each week and makes$12.00/hour helping his mother who is a cook at the establishment. [56] He has no criminal history, and no substance abuse problems.

He reports that he drinks alcohol only on the weekends andexperimented with marihuana in high school but stopped smoking it when he had a girlfriend who objected to the habit. [57] Dorosh has good support from his family and his friends. Mr. Ray filed letters of reference from an older sister and his mother,and the Probation Officer interviewed a close friend of Dorosh concerning his situation. His sister and mother both remarked that youngDorosh became the “man of the house” when his father left, and matured very quickly.

They also agreed his behaviour during the riotwas out of character and they are concerned that if he is sent to jail, the experience with be counter-productive. Analysis [58]

Section 718 of the Criminal Code directs that sentencing an offender has the following purposes – to denounce unlawfulconduct; to deter the offender and other persons from committing offences; to separate offenders from society, where necessary; to assistin rehabilitating offenders; to provide reparations for harm done to victims or to the community; and to promote a sense of responsibilityin offenders, and acknowledgment of the harm done to victims and to the community.

In addition the courts have determined that thereare other considerations in sentencing, such as retribution as was discussed in the Proulx case that was quoted above. [59] Each of these sentencing considerations is given varying weight, depending on the type of offence, the seriousness of theoffence, and the circumstances of the offender. I am satisfied that in this and related cases arising from the Vancouver Stanley Cup riotthe principles of denunciation and general deterrence must prevail over all other concerns.

At the same time, in this particular case, thecourt cannot lose sight of the concern for rehabilitation of the accused. [60] The need for general deterrence in this case is indicated by the cases of Regina v. Blackshaw et al, [2011] EWCA Crim 2312Times and R. v. Loewen, (1992) (BC CA), 75 CCC (3d) 184, BCCA. And every other case cited by counsel dealingwith sentence on a riot charge confirms that emphasis must be given to general deterrence. [61] The same must be said of denunciation – the two principles go hand in hand in every such case.

A good example ofdenunciation that would be equally appropriate in the case of Dorosh is seen in the case of Regina v.

Post, [1991] BCSC, unreporteddecision of Oliver J. where in the second paragraph of that case the court states: It is a monstrous thing that in this peaceful community citizens should be terrorized; retired people should be put in fear; small businessoperators should face vast expense for damage to their premises; tourists, upon whom the economy in large measure depends, should bescared away; damage should be done to civic property, and the property of all of the people of Penticton, by gangs of yahoos andhooligans who in their thousands believe this to be acceptable conduct. It is not.

The people of Penticton are entitled to look to thecourts for protection. If rioting is to be unrestrained and unpunished, violence and mob rule will replace peaceful government. It must be clearly understood that participation in a riot such as this will inevitably result in substantial terms of imprisonment. [62] In order to gauge the emphasis to be given to general deterrence and denunciation in each particular riot case the court mustassess the seriousness of each such offence. To do that it is necessary to put the offence of the accused in the context of the riot as a

whole; I accept the Crown’s submission in that regard. [ 63 ] The Vancouver Stanley Cup riot was extremely serious. A massive crowd, moving through the large metropolitan downtown core, endangered the lives of thousands of persons who were in innocent occupation of their city. In their path the rioters left a wake of enormous property damage – the rioters simply trashed much of the downtown area of the city.

In addition to the physical damage there was painful psychological damage to many of the victims and lasting injury to the pride and reputation of the city itself. [ 64 ] Each of the participants in the riot must take some responsibility for the totality of the riot as well as responsibility for their individual acts. I accept the submission that the acts of individuals had the effect of encouraging those who were like-minded. Thus, in this case, it occurred to Dorosh to enter the premises of The Bay and steal a purse because he saw others doing the same.

His acts would have inspired others who saw him, and the chaos continued, and even grew. [ 65 ] Similarly, Dorosh was apparently not the first to try to ignite the Ford Fusion but made his attempt after others had done the same in the front seat and dashboard area. It appears that yet others continued with the enterprise until the vehicle was finally destroyed. Dorosh bears some responsibility for his

part in continuing the criminal endeavour that resulted in the ultimate destruction of the vehicle. [ 66 ] I also conclude that I must consider the seriousness of the related substantive offences Dorosh committed in determining the seriousness of his act of taking

part in a riot. That is to say, I do not accept that because his offence has a maximum sentence of two years that alone determines the seriousness of his offence. Each offence of rioting must be viewed in the context of exactly what acts the accused engaged in to contribute to the riot. Attempting to commit arson and looting, each individually very serious offences with more significant maximum sentences than rioting simpliciter, aggravates the seriousness of Dorosh’s involvement. [ 67 ] Mr. Ray made the point that his client was only one year old at the time of the last Stanley Cup Riot in Vancouver.

He said that his client could hardly be expected to be deterred by the sentences given at that time and the same might be expected of sentences that the court now imposes. And it may well be the case that in another 15 or twenty years the Vancouver Canucks will frustrate their fans with another unsuccessful attempt to win the Stanley Cup. But the law is of more general application than dealing with Stanley Cup and hockey issues – as Mr. Porte said at the start of his submission, this case and related cases are about social responsibility and the rule of law.

Or as the English Court of Appeal said in Regina v Caird [1970] 54 Cr. App. R 499 at 506, When there is wanton and vicious violence of gross degree the court is not concerned with whether it originates from gang rivalry or from political motives.

It is the degree of mob violence that matters and the extent to which the public peace is broken… Thus, Dorosh must be used as an example to all others who may contemplate riotous breaches of the public peace, wherever and whenever they may occur, and his case is not intended simply as a deterrent to future disenchanted hockey fans in Vancouver. [ 68 ] My assessment concerning the seriousness of these matters is that the Vancouver Stanley Cup Riot was “a monstrous thing”, to echo the previously quoted comments of Oliver J.

The participation by Dorosh was very serious, well into the middle or upper range of seriousness for offences under

Section 65 of the Criminal Code . He came to the location of the riot from elsewhere, remained for a considerable period of time when he had the option of leaving, and showed some commitment to his acts of rioting, particularly his attempted arson. All of this requires that the court give very particular attention to general deterrence and denunciation. [ 69 ] I am satisfied that Dorosh has likely learned his lesson from what has happened so far and that nothing further need be done with regard to specific deterrence or protecting the public from him.

I am also satisfied that reparations are not realistic in this case – the damage caused was vast and Dorosh is of limited means. [ 70 ] I stated earlier that the court must give effect to the principle of rehabilitation in this particular case. That is because of the fact Dorosh is very young, and has no previous involvement with the criminal law. He has educational ambitions and he has maintained employment since he finished high school. He should be encouraged in his future plans and the court should facilitate this as much as possible. As is stated in Criminal Code

Section 718.2, (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders Each of those sub-sections certainly applies to Dorosh when one considers his prospects for rehabilitation. In addition, I have the same concerns as expressed by his mother that jail would be a very negative experience for someone so young and there is a danger that he could be corrupted by other inmates – that is unfortunately a realistic prospect. [ 71 ] In looking at mitigating circumstances that support the defence application for a non-institutional sentence, I accept what Mr.

Ray has put forward as mitigation. Dorosh is a youthful first offender. He is remorseful, having turned himself in to the police and followed through with a guilty plea at an appropriate time. Since the occasion of the riot he has continued to be a responsible citizen, graduating from high school and maintaining steady employment. He does not abuse alcohol or drugs, nor does he have any psychological disorders. He is not dangerous to the public. His offences were impulsive and involved no premeditation. [ 72 ] Keeping all of that in mind, I give consideration to Criminal Code

Section 718.2(b) - a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. I have said that similar offenders have in a few instances received Conditional Sentence Orders but in general the range of sentences for such persons has been 45 days to 18 months in jail. Those sentences have been imposed in similar circumstances, if it is possible to really compare riot cases with each other. But when it comes to a consideration of similar offences, there is a real problem in this case.

[ 73 ] If one were just considering the looting incident and the background of Mr. Dorosh the lower end of the range including a conditional sentence order might be considered. But the added aspect of the attempted arson takes Mr. Dorosh’s turpitude to a much higher level. Dorosh himself obviously recognized that because he was reluctant to volunteer information concerning the attempted arson to the police and to his Probation Officer.

I must conclude that the seriousness of Dorosh’s involvement does not permit consideration of a Conditional Sentence Order – it would send the wrong message to the public and not effectively denounce Dorosh’s conduct.

In fact, my assessment is that because of that aggravating aspect of the case the indicated sentence is considerably in excess of that sought by the Crown; a sentence of a year or more in jail could be justified as generally indicated before consideration is given to Dorosh’s personal circumstances. [ 74 ] I am certainly aware of the dangers of sending a young man to jail and would prefer that this could be avoided.

Since it cannot, rehabilitation must take the form of offering Dorosh a “light at the end of the tunnel.” I am therefore prepared to accept that the lower end of the Crown’s requested sentence, four months, may be imposed as being within the range for Dorosh, although at the very low end of that range. I therefore sentence him to four months imprisonment. [ 75 ] I am not imposing probation or any further conditions. Mr. Dorosh should be permitted to complete his sentence and put this entire affair behind him.

He has shown that he can be a responsible young man, with the support of his family, and he has no demonstrated need for counselling or the assistance of a Probation Officer. I will waive the Victim Fine Surcharge because of the imposition of a jail sentence. BY THE COURT