R. v. Yates Date:, 2012 BCPC 250

Citation: R. v. Yates Date: 20120720 2012 BCPC 0250 File No: 223526-1-V Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SEAN WILLIAM YATES EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. LOW Counsel for the Crown: R. Flannigan Counsel for the Defendant: J. Heller Place of Hearing: Vancouver , B.C. Date of Hearing: July 20, 2012

Date of Judgment: July 20, 2012 [1] THE COURT: Twenty-three year old Sean William Yates has pled guilty to taking

part in a riot in the City of Vancouver, onJune 15, 2011, contrary to s. 65 of the Criminal Code, and to assaulting during that riot Sergeant Dore of the Vancouver City Police, whoat the time was in the execution of his duty. [2]

Section 65 is a purely indictable offence and since the Crown has proceeded indictably with the charge concerning SergeantDore, the maximum sentence for the rioting offence is two years in jail; the latter offence five years in jail. [3] I have been provided with a series of photographs and video clips obtained by the police following the riot, formal admissionsof facts, a Pre-Sentence Report, a psychological report, a psychiatric assessment, a victim impact statement and a brief of sentencingauthorities. [4] The Crown seeks a nine-month institutional sentence, to be followed by a one-year probation order including, amongst otherthings, community service work.

The defence acknowledges that the only fit sentence is an institutional jail sentence but suggests thatgiven the circumstances of the offence and Mr. Yates' personal circumstances, a shorter sentence of between four to six months jailwould address the need for general deterrence, while not undermining Mr. Yates excellent prospects for rehabilitation. [5] The circumstances of Mr. Yates' offending are set out in considerable detail in the Statement of Facts which I will brieflysummarize as follows.

A few minutes before the end of a hockey game between the Boston Bruins and the Vancouver Canuckssignalling the end of the Stanley Cup finals in 2011, at 7:45 p.m. part of the crowd, gathered to watch the game on a large TV screennear the Vancouver Public Library, overturned a passenger car. About ten minutes later the crowd set fire to that car. About a half anhour later, at the same site, a pickup truck was also overturned and set ablaze. The riot quickly spread along Georgia Street and alongSeymour Street, and other streets in the City of Vancouver. [6] Although Mr.

Yates did not actively engage in setting these vehicles ablaze, according to the admissions and the videoevidence, he was actively engaged in the riot almost from the outset. [7] When the first car was set ablaze, Vancouver Police moved in, in an attempt to control the situation. Members of the crowdimmediately reacted in an enormously hostile manner, including throwing projectiles at the Police. Mr. Yates spat upon ConstableFealing's head and arm and challenged Constable Fealing from within the crowd. It is significant that at the time Mr.

Yates wasbrandishing a metal pipe, which appeared to me to be about three feet long. Shortly after, Mr. Yates threw a glass liquor bottle directlyat Sergeant Dore, striking Sergeant Dore in the head. [8] When the police, who were dressed only in soft uniform as opposed to protective riot gear, retreated from the first burning car,the crowd followed and commenced damaging the pickup truck. Not only did this crowd, of which Mr.

Yates was a part, set upon acivilian who intervened to protect the pickup truck, they continued to force the police and fire department personnel away from thepickup truck while they set fire to the pickup truck. Shortly after, Mr. Yates was seen using his iron pipe to smash windows at thenearby offices of Canada Post, part of the approximately $34,000 of damage caused to that building. [9] Mr. Yates, along with others, continued to confront police and, in particular, a line of police officers dressed in riot gear andbearing shields. The confrontation included Mr.

Yates throwing various items at the police and joining in taunting them. The crowd,including Mr. Yates, continued to force the police to retreat along Georgia Street. At Georgia and Granville Street, the crowd turned itsattention upon the Hudson's Bay Store, smashing its windows and looting its contents. Three more vehicles parked outside the Hudson'sBay Store were set ablaze. Mr. Yates was seen and recorded on video throwing a mannequin on top of one of the blazing cars, an Audi,owned by a Mr. Currie. [10] Later, Mr.

Yates was seen smashing windows at the Hudson's Bay Store at 10:06 p.m., causing part of the $1.3 million dollarsof damages suffered by the owners of that business. [11] I wish to comment on two things. First, although I have only been presented with short excerpts of the videos of the riot, it is anenormous understatement to describe the scene of mayhem and gross public disorder as shocking. The crowd was composed almostentirely of young men and women, like Mr.

Yates, who seemed to have completely lost sight of who they were, who the police were, andthat they were destroying the community and the neighbourhood of downtown Vancouver. [12] Second, it was enormously disturbing to see the crowd's behaviour towards the Vancouver City Police. In all of the scenes Iviewed, the police were acting with the utmost restraint. I can only imagine how terrifying it must have been for them to be confrontedby such an enormous, howling mob of drunken young people.

It would have taken considerable courage for all of the police, firemen,and other emergency personnel to stand up to that malevolent crowd. Their conduct is a tribute to the high degree of theirprofessionalism which the entire City of Vancouver, and particularly the rioters themselves, should be grateful for. [13] I agree with both the Crown and the defence that the primary concern in sentencing Mr. Yates must be general deterrence. Thishas been the settled law in British Columbia since R. v. Loewen (1992), (BC CA), 75 CCC (3d) 184 BCCA.

I alsoagree with both the Crown and the defence, that given the circumstances of Mr. Yates' offending, the only fit sentence I can consider isan institutional prison sentence. [14] I also agree with the Crown and defence that although it is open to me to consider Mr. Yates serving his jail sentence in thecommunity, such a sentence would not properly address the fundamental purpose and principles of sentencing set out in the CriminalCode, and in particular would not properly address the need for general deterrence in the particular circumstances of Mr. Yates'offending. [15] The aggravating circumstances of Mr.

Yates' offending were thoroughly and adequately detailed by the Crown. The defence

takes no issue with those factors which I summarize as follows. Mr. Yates actively participated in an enormous riot during which hedirectly assaulted two different police officers, actively resisted the clear efforts of riot police to clear the area by throwing variousprojectiles at them, taunting them, inviting others to engage in this conduct, brandishing a metal pipe, and ignoring not only being struckon the legs by a police officer trying to get him to clear the area, but also ignoring a clear and loudly hailed order by the police todisperse. Throughout a period of over three hours Mr.

Yates engaged in activity, albeit with thousands of others, such as burningvehicles, smashing windows, which placed everyone in the area, including the rioting crowd, at considerable risk, endangered the livesand safety of all emergency personnel, and terrorized all the residents, employees, business people and all the other law abiding peopleand their families who were in the area to watch the hockey game, go to the library, shop at the Hudson's Bay Store, or take in a play atthe Queen Elizabeth Theatre. [16] Mr.

Yates actively contributed to an enormous burden upon the Emergency Services and hospitals in the City of Vancouver. The total financial cost of the riot ran into the millions of dollars. The damage to the reputation of the City of Vancouver, not only inCanada but throughout the world, is incalculable.

Not only were many people injured in the riot, but innocent people, such as theHudson's Bay employees were thoroughly traumatized by their predicament and some of them needed counselling to help recover. [17] While the police provided me with a list of the numerous riots that have happened across Canada since 1954, I am satisfied thatthe riot of June 15th, 2011 was one of the largest and most disastrous riots in the history of Canada. It is an utter miracle that no one waskilled that terrible night. [18] Mr.

Currie, who was the owner of the Audi which was set on fire outside the Hudson's Bay Store, wrote a compelling victimimpact statement. Not only was his car destroyed but his grandfather's tools, borrowed by Mr. Currie from Mr. Currie's father, wereimmolated, and as I understand Mr. Currie's letter, cannot be replaced. [19] It is my view that spitting on Constable Fealing, who at the time was involved in protecting the city, was a particularlycowardly and despicable act. It is also my view that while Sergeant Dore, by some miracle, was not injured by the bottle Mr.

Yatesthrew, this act was also a cowardly and despicable one. [20] The mitigating factors can also be summarized as follows. Mr. Yates is a young man, with no previous criminal record. Notonly did he plead guilty to this offence, I am satisfied he did so to express his remorse and accept responsibility for his actions. His pleahas also saved the criminal justice system considerable time, trouble and expense in prosecuting him. According to the Pre-SentenceReports, he has come from a good family, many of whom are here today to support him, and generally has good antecedents. [21] I am completely satisfied that Mr.

Yates is genuinely remorseful about his conduct. He reported to the police the next day toadmit his involvement. The probation officer and the two doctors who prepared Pre-Sentence Reports all stated that Mr. Yates wasgenuinely remorseful when dealing with them and accepted fully his personal responsibility for his actions and had good insight into hisbehaviour. Mr.

Yates' insight into his behaviour is underscored by the fact that since this incident he has given up the use of alcohol,which according to the reports was becoming a significant problem for him, and has sought out new associations to ensure he continuesto lead a substance abuse free life. [22] Mr. Yates was apparently heavily intoxicated that night. The Crown is correct to point out that was a result of deliberatechoices made by Mr. Yates. He took a substantial amount of hard liquor to the hockey game, but I accept that Mr. Yates' drunkennesscompletely impaired his otherwise good judgment.

I say otherwise good judgment because according to the many comprehensive lettersof reference provided by a wide range of members of the community on his behalf, including his landlord and his current employer,while they were filled with despair over Mr. Yates' involvement in this riot, they were also astounded by his involvement. [23] The issue before me is quite narrow and simply is how long a jail sentence should Mr. Yates receive.

I have had the benefit ofconsidering all of the sentencing authorities put before me by the Crown, many of which have been considered by my colleagues in threeearlier sentencing decisions arising out of the same riot Mr. Yates was involved in, namely R. v. Dickenson [2012] BCPC 40; R. v. Alviar[2012] B.C. Journal No. 1179; and R. v. Snelgrove 2012 BCPC 235 , 2012 BCPC 0235. [24] I agree with the Crown and it is conceded by the defence that the singular feature that distinguishes Mr. Yates' conduct fromthese three cases is his violence to the police.

I also agree with the defence, and it is conceded by the Crown, that while jail is the onlyfit sentence, the length of Mr. Yates' prison term must not be so long as to impair his ability to return to the community and recommenceliving a productive life. [25] I agree with the defence that a too lengthy jail sentence would completely undermine all the very productive things Mr. Yateshas done since June 15, 2011 to turn his life around.

I also agree with the Crown that I cannot ignore all the authorities which haveimposed significant jail sentences for even very youthful offenders who engage in the sort of conduct Mr. Yates engaged in. [26] Although the personal circumstances of the accused including whether he had a record are not clear from the decision, I notethat Justice Oliver in 1991 imposed a two-year sentence for assaulting a peace officer in the context of a riot in a case called R. v. Post,Supreme Court of British Columbia, Penticton Registry No. 18726-2-C, October 16, 1991.

Judge Weddell in 1991, arising from thesame riot in Penticton, in a case called R. v. McCabe, British Columbia Provincial Court, Penticton Registry No. 18947, October 16,1991, sentenced a twenty-year-old man who had a significant criminal record to an eighteen-month jail sentence for throwing a beer canat the police officer during the riot.

Judge Weitzel sentenced Samer Aboukhazaal, who participated in the 1994 riot in Vancouver andthrew rocks at the police and who had a record for violence and weapon offences, to a sentence of twelve months jail. (See R. v.Aboukhazaal, British Columbia Provincial Court, Vancouver Registry No. 80926-D, October 13, 1994.) [27] While I am completely satisfied there is no need to deter Mr. Yates, there is a pressing need to deter the general communityfrom engaging in riots and assaulting police officers in that context.

Such behaviour is enormously dangerous and requires a strongmessage of deterrence. [28] I do not agree with the defence that that level of deterrence can be achieved by a jail sentence of four to six months. On theother hand, while there is merit on the authorities to the Crown's position that a sentence of nine months would be appropriate, I am

prepared to give Mr. Yates a greater credit for his guilty plea, his genuine remorse, and his very appropriate actions taken since the offence to rehabilitate himself. It is significant that Mr. Yates does not have a criminal record. [ 29 ] I have concluded in all the circumstances that a fit global sentence would be seven months jail, to be followed by a period of probation. [ 30 ] The sentence on Count 1 will be seven months jail. The sentence on Count 2 will be seven months jail, to be served concurrently with the sentence on Count 1. [ 31 ] Mr.

Yates will be on probation for one year, at the expiration of those sentences during which time he will keep the peace and be of good behaviour and comply with the other statutory terms of probation. [ 32 ] He will report before 4:00 p.m. on the first business day following his release to a probation officer at 275 East Cordova Street, Vancouver, B.C. and thereafter as directed. [ 33 ] He is to reside at a residence approved of by his bail supervisor and he is not to change that place of residence without first obtaining the approval of his bail supervisor. [ 34 ] He is to abstain absolutely from the use or possession of alcohol or illegal drugs as defined in the Controlled Drugs and Substances Act . [ 35 ] He is not to be found on the premises of any business whose primary purpose of business is the sale of alcohol.

He is not to possess any of the paraphernalia commonly associated with the consumption of illegal drugs as defined in the Controlled Drugs and Substances Act . [ 36 ] He is to take counselling as directed by his probation officer and he is to complete that counselling to the satisfaction of his probation officer. [ 37 ] He is not to possess any weapons or any imitation of a weapon as defined in the Criminal Code . He is not to possess any of the items or any imitation of the items described in s.515(4.1) of the Criminal Code . [ 38 ] I have considered whether to impose community service work. I am confident Mr.

Yates, given his employment history and his current employer's support, will be able to secure employment upon his release. Instead of community service work, I intend to impose a higher than normal victim fine surcharge. On Counts 1 and 2 there will be a victim fine surcharge of $250, for a total of $500. I will give Mr. Yates one year from the date of his release to pay the victim fine surcharge. [ 39 ] I direct that a sample of his DNA is to be taken before his release.

I order that pursuant to s.110 he is not to possess any of the prescribed items for a period of five years. [ 40 ] THE COURT: Is there anything else I needed to cover, Mr. Flannigan? [ 41 ] MR. FLANNIGAN: No, I believe you've covered it all, Your Honour. [ 42 ] THE COURT: Were there any other terms in the probation order that you wished? [ 43 ] MR. FLANNIGAN: No, Your Honour, I believe you've covered them all. [ 44 ] THE COURT: Any comment on the order or terms? [ 45 ] MR. FLANNIGAN: No, Your Honour.

I notice that the probation officer had suggested psychological counselling but if it's just left counselling, it leaves it to the -- [ 46 ] THE COURT: Well, I have used the generic term, Mr. Flannigan, because I have been advised any number of times by the probation office that that term covers everything for the probation services. So I noted what the officer said there, but I used that term instead. [ 47 ] MR. FLANNIGAN: Certainly. [ 48 ] THE COURT: There is nothing else, counsel? [ 49 ] MR.

FLANNIGAN: Nothing further, Your Honour. [ 50 ] THE COURT: I want to thank counsel for their professional assistance with this very difficult matter. I appreciate your help very much. [ 51 ] MR. FLANNIGAN: Thank you, Your Honour. [ 52 ] THE COURT: Before I go, I also want to personally thank my Clerk, the Sheriff staff, and every other individual in this building who is going to have to continue to work after we are done here to process Mr. Yates, to deal with that matter, and I know that this is a substantial imposition on them and it is particularly so given that it is immediately before a weekend. [ 53 ] MR.

HELLER: Your Honour, I want to thank you for that as well. Beyond everything else, thanks so much for sitting late. [ 54 ] THE COURT: Well do not thank me, only the staff needs to be thanked, but I appreciate your consideration. Thank you, Mr. Heller.

(REASONS FOR SENTENCE CONCLUDED)