R. v. Alviar Date:, 2012 BCPC 181

Citation: R. v. Alviar Date: 20120611 2012 BCPC 0181 File No: 223515-1-V Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. EMMANUEL ALVIAR REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: Patti Tomasson Counsel for the Defendant: Gary Botting Place of Hearing: Vancouver , B.C. Dates of Hearing: May 3, 2012 Date of Judgment: June 11, 2012

INTRODUCTION [ 1 ] The accused, Emmanuel Alviar, pleaded guilty to taking

part in a riot contrary to s. 65 of the Criminal Code of Canada . A sentencing hearing was held on May 3 rd , 2012, and the matter was adjourned for sentencing. [ 2 ] In determining Mr. Alviar’s sentence this court has considered counsel’s submissions, the relevant case law, the applicable statutes, and all materials that were filed. Background [ 3 ] On June 15 th , 2011, the Vancouver Canucks lost their bid to win the Stanley Cup. What followed was a riot of approximately five hours during which acts of wanton violence, destruction and theft occurred. [ 4 ] 1035 Emergency Responders were deployed to the riot.

Several blocks of the downtown core were impacted and during the five hour period the emergency 911 center received more 911 calls than had ever been recorded in a complete 24 hour period. [ 5 ] Numerous acts of assault, theft and vandalism were committed with112 businesses being damaged and 122 vehicles being destroyed or damaged. [ 6 ] The estimated monetary loss is thought to be in excess of 3.7 million dollars.

The damage to the sense of security enjoyed by all those who live, work, or visit Vancouver is immeasurable, as is the harm caused to the city’s reputation. [ 7 ] Undoubtedly, Emergency Responders, those innocently caught in the middle of the riot and all those directly victimized have suffered some degree of emotional harm. Evidence of this harm is borne out by those Hudson Bay employees that were trapped in the Bay during the peak of the riot. All of these employees have attended counselling in order to help them deal with the fear they felt that night. Actions of Mr. Alviar [ 8 ] On the night of the riot Mr.

Alviar was in charge of four 14 year old youths. Shortly before the start of the riot Mr. Alviar and the youths travelled by public transportation from Surrey to the downtown core. [ 9 ] Once downtown Mr. Alviar and his group went to the area of the Live Site. While in this area and at approximately 8:40 p.m. a GMC pick-up truck that was parked close to the Live Site was damaged, turned over, and set on fire. Video footage shows Mr. Alviar kicking two pieces of garbage towards the burning truck followed by him posing. See: Exhibit 1, Tab 4 and Exhibit 2. [ 10 ] Mr.

Alviar is next captured on video in the 600 block of Seymour Street. The video shows Mr. Alviar standing in a large crowd near a vehicle parked on the west side of the street. This vehicle was owned by Jazmin Perez. [ 11 ] At one point Mr. Alviar steps from the crowd and he starts rocking the Perez vehicle. See: Exhibit 1, Tab 5 and Video. While rocking the vehicle Mr. Alviar looks to his left and right. He is then joined by others who begin rocking the vehicle. Mr. Alviar then steps back from the vehicle and the others continue rocking it. [ 12 ] Mr.

Alviar next appears on video standing outside of the Telus building on the east sidewalk of the 700 block of Seymour Street. There he watches several persons attempting to break the windows on the Telus building. [ 13 ] At one point the video shows a male making several attempts at breaking the window. Mr. Alviar appears to be watching this male and after a brief period of time Mr. Alviar steps forward and picks up a long board and throws it at the window. See Exhibit 1, Tab 6 and Exhibit 2 . [ 14 ] Mr. Alviar was not under the influence of alcohol or drugs when he was involved in the events described.

He did not start the riot. In fact it appears he got caught up in what others started. [ 15 ] Months after the riot Mr. Alviar was told by his cousin that Mr. Alviar’s image was on a Vancouver Police website wherein the police were seeking the public’s assistance in identifying participants of the riot. Upon learning this Mr. Alviar contacted the police and he went to the police station where he participated in an interview. His explanation for contacting the police was that he felt that it was the right thing to do. Mr. Alviar’s Circumstances [ 16 ] Mr. Alviar is 20 years old. He does not have a criminal record.

He has no substance abuse issues, nor are there any mental health issues. Mr. Alviar lives with his parents and siblings. By all accounts he has enjoyed a stable up-bringing. His parents support him and they describe him as being a respectful, caring and kind son and brother. [ 17 ] With respect to employment, Mr. Alviar has held a variety of unskilled jobs. He is working for his uncle as a dry wall installer and he is about to or has just started working part time at a retail outlet. Mr. Alviar attends church regularly and in 2010 he was

part of a volunteer music group. [18] The Pre-Sentence Report suggests that Mr. Alviar lacks some understanding with respect to the impact that his actions had onthe community and the victims. During his interview with the probation officer, Mr. Alviar stated, “The owner did not think ahead whendeciding to park downtown…Everyone knows that the police dropped the ball.” [19] It was noted by the probation officer that Mr. Alviar has expressed remorse, and he appears to understand the impact that hisbehaviour has had on his family and friends.

Crown’s Sentencing Position [20] Crown argues that the primary sentencing objectives are denunciation and general deterrence, and that when one considersthe context of the riot, Mr. Alviar’s conduct, and as well as the aggravating and mitigating factors, a fit and appropriate sentence isincarceration for a period of 4 months with probation to follow. [21] In support of their position Crown relies on a number of authorities to show that young first time offenders, in thecircumstances of a riot, have received custodial sentences ranging from 3 months to 18 months. See: R. v.

Loewen (1992), (BC CA), 75 C.C.C. (3d) 184 BCCA, R. v. Post, [1991] (Unreported) BCSC Penticton Registry 18726 –C2, R. v. Sampson, [2005]A.W.L.D. 1576 QB, R. v. Starcevic, [1991] (Unreported) Penticton Registry 18759 BCPC., R. v. Newth, [1992] (Unreported) PentictonRegistry 18751C BCPC., R. v. Aboukhazaal, [1994] (Unreported) Vancouver Registry 80962D BCPC., R. v. Holness, [1994](Unreported) Vancouver Registry 80828D BCPC., R. v. Psarrakis, [1995] (Unreported) Vancouver Registry 83317D BCPC., R. v.Manson, [1995] (Unreported) Vancouver Registry 78873D BCPC., R. v.

Dickinson, [2012] BCPC 40. [22] It is Crown’s position that a conditional sentence order is not appropriate. Crown argues that a conditional sentence orderwould be inconsistent with the fundamental purposes and principles of sentencing in that it would fail to satisfy the level of denunciationand deterrence that is mandated in the circumstances of this case. Defence Sentencing Position [23] Counsel for Mr. Alviar agrees that a term of imprisonment is appropriate. He argues that Mr. Alviar’s circumstances as wellas the facts of this case demonstrate that a conditional sentence order is appropriate.

In support of his position counsel relies on: R. v.Sayder, 2007 BCPC 161 , [2007] B.C.J. No. 1113, R. v. J.G., [1992] B.C.J. No. 1788, R. v. Henry, [2011] ONCJ 501. Principles of Sentencing [24]

Section 718 of the Criminal Code sets out the objectives that a sentencing judge must consider: 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. [25] Other relevant sentencing principles are found in s. 718.2: 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 ... (

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, withparticular attention to the circumstances of aboriginal offenders.

[26] This court agrees that the paramount sentencing objectives in this case are denunciation and general deterrence. The objectiveof deterrence in the context of a riot is reflected in R. v. Loewen (1992), (3d) 184 BCCA where at paragraphs 9-10, Mr. Justice Hindsstated: [9] This is not the time for unwarranted leniency nor by the same token for unwarranted severity. Care must be taken at the sametime to preserve the message of general deterrence. [10] A riot is, by its very nature, a serious thereat to orderly society.

If riots become prevalent, they will undermine the manyvalues of a free and democratic society. [27] Accordingly, this court must protect the values of our society by deterring those who are inclined to participate in riots. Assuch, it is through the imposition of meaningful consequences that the objective of deterrence is achieved. [28] The principle of denunciation was explained in R. v. M (C.A.) 1996 1.

S.C.R. 500 at para. 81 where Lamer C.J., stated: In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offenders conduct should bepunished for encroaching on our society’s basis code of values as enshrined within our substantive criminal law. As Lord Justice Lawtonstated in R. v. Sargeant (1974), 60 Cr. App.

R. 74, at p. 77 “society through the courts, must show its abhorrence of particular types ofcrime, and the only was in which the courts can show this is by the sentences they pass”. [29] To some extent, the charges, conviction and criminal record has already contributed the principles of denunciation anddeterrence. This perspective was discussed in R. v. D.E.S.M. (1993), (BC CA), 80 C.C.C. (3d) 371, where at p.376 ofthe judgement, the Court said: By convicting him, society has already stigmatized him as a person who has committed a serious offence, and has denounced his offence.

Quite recently, the Supreme Court of Canada has expressed itself quite strongly on the importance of stigma as a consequence ofcriminal proceedings. The court has been saying what most lawyers and criminologists have known all along, that a public charge, trialand conviction for a serious offence brands a person for life, constitutes serious punishment, and is an important part of the way societybrings offenders to account for their misconduct. [30] It must be remembered that Mr. Alviar will now have a criminal record. This record will brand Mr. Alviar as a person whohas transcended societal values.

The criminal record will impact his ability to travel, and it will make it difficult for him to pursuevarious employment options. Given Mr. Alviar’s age this is a significant consequence. [31] Although jail sentences are not usually given to first time youthful offenders. There are circumstances where this principlemust yield to the principle of general deterrence. See: Loewen, supra. Aggravating Factors [32] The court finds the following to be aggravating: (

a) Mr. Alviar was in the company of and in charge of four 14 year olds when he committed his offence. (

b) Mr. Alviar was participating in the riot in three separate locations. (

c) His participation was over a period of hours. (

d) Mr. Alviar’s act of rocking the Perez vehicle encouraged others to join in. Mitigating Factors [33] The court finds the following to be mitigating: (

a) Mr Alviar pleaded guilty at an early opportunity. This is mitigating for the following reasons, it saved the province the expenseassociated with prosecuting Mr. Alviar, it saved the victims and witnesses from having to testify, and it preserved valuable court timethat would have been required to prosecute Mr. Alviar. Finally, Mr. Alviar’s guilty plea was not only a demonstration of remorse but itwas a waiver of his right to have the state prove the case against him beyond a reasonable doubt. (

b) Upon learning that his image had been posted on a police web site Mr. Alviar took the initiative and he went to the police where he

voluntarily participated in an interview. Mr. Alviar’s actions in coming forward is significant. It has saved investigative resources anddemonstrates Mr. Alviar’s willingness to accept responsibility. Coming forward and acknowledging one’s involvement in the riot hassignificant social benefits. It frees up police resources, it saves money and it gives society the comfort in knowing that those responsibleare being held accountable. Accordingly, and with the hope that others come forward, I find Mr. Alviar’s actions of coming forward tobe a substantially mitigating factor. (

c) Mr. Alviar is remorseful. He not only demonstrated this when the Pre-Sentence Report was prepared, but he also demonstrated itwhen he addressed the court at his sentencing hearing. Range of Sentences [34] The cases relied on demonstrate a range of sentences from 3 months to 18 months. When considering ranges it must beremembered that each fact pattern is different comprised of offenders with unique circumstances. This is why ranges are guides forsentencing courts and do not represent inflexible boundaries R. v. Nasogaluak (2010), 2010 SCC 6 , 251 C.C.C. (3d) 293S.C.C., R. v.

Pirouz, [2009] BCCA Conditional Sentence Order [35] This court has carefully considered this matter and acknowledges the caution given to trial courts by Lamer, C.J., at para. 107of R. v. Proux, 2000 SCC 5 , [2000] 1 S.C.R. 61: Judges should be wary…of placing too much weight on deterrence when choosing between a conditional sentence and incarceration.” –This is because the principle of general deterrence could be fulfilled by a conditional sentence. [36] After careful consideration this court is satisfied that the objectives of denunciation and deterrence would not be achieved ifMr.

Alviar were allowed to serve his sentence in the community. Clearly, there are cases where the objectives of denunciation anddeterrence can be achieved with the offender serving their sentence in the community. This is not one of those cases. The need forsubstantial deterrence is borne out by the size of the riot, the duration of the riot, the harm caused by the riot and significantly, this is thesecond time that Vancouver has experienced a hockey associated riot. These factors show that there are a large group of persons who areprepared to be involved in a riot should the opportunity present itself.

These persons need to be deterred. Conclusion [37] After considering all of the facts and circumstances it is this court’s view that the principles of sentencing mandate that Mr.Alviar be sentenced to a custodial sentence of one month. The length of the sentence will ensure that Mr. Alviar’s development is notharmed by a prolonged association with those who are criminally entrenched, and yet it will send a message to those persons withoutcriminal records who are inclined to engage in public disorder. [38] Upon completing his custodial sentence Mr. Alviar will be on probation for 16 months.

The purpose of the probation order isto assist Mr. Alviar in appreciating why he exercised such poor judgement, to create a mechanism whereby Mr. Alviar can give back tothe community and to give him an opportunity to say sorry. [39] The conditions of the probation order are: (

a) keep the peace and be of good behaviour; (

b) appear before the court when required to do so by the court; (

c) notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or theprobation officer of any change of employment or occupation; (

d) within 72 hours of your release from custody you are to report to a probation officer at 275 East Cordova Street, in the city ofVancouver, Province of British Columbia and thereafter you are to report to as and when directed by your probation officer; (

e) within the first 12 months of this order you must at the direction of your probation officer and to the satisfaction of your probationofficer 150 hours of community work service; (

f) you must attend at, participate in and successfully complete any counselling that maybe directed by your probation officer; (

g) within the first 2 months of this order you must write to the satisfaction of your probation officer letters of apology to thefollowing persons, Chief Constable Jim Chu, and Mayor Gregor Robertson; and (

f) when outside your residence you must carry a copy of this order on your person at all time. ______________________________ The Honourable Judge R. Harris

Provincial Court of British Columbia