R. v. Garcia Date:, 2014 BCPC 29

Citation: R. v. Garcia Date: 20140221 2014 BCPC 0029 File No: 223530-1-V 223530-2-AV Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ARMANDO JOSE GARCIA EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE DHILLON Counsel for the Crown: P. Tomasson (as agent for R. Flannigan) Counsel for the Defendant: K. Cronin

(as agent for T. LaLiberte, QC) Place of Hearing: Vancouver , B.C. Date of Hearing: February 21, 2014 Date of Judgment: February 21, 2014 [ 1 ] THE COURT: These are reasons for sentence in the matter of R. v. Armando Jose Garcia. Armando Jose Garcia has admitted his guilt to taking

part in a riot under Count 1 and to committing an assault of Robert James Mackay under Count 2, both on 15 June 2011 in Vancouver, British Columbia. He is to be sentenced today for these offences. [ 2 ] I have been provided with books of documents, video and photographic evidence, case authorities, the Pre-Sentence Report of Brian Perry [phonetic] completed December 3, 2013, and numerous letters of support of family and friends of Mr. Garcia. I have carefully considered these materials and the sentence submissions of counsel. [ 3 ] Mr. Garcia was 19 years of age when he took

part in the 2011 Vancouver Stanley Cup riot. Today, he is 21 years old. He has no prior convictions. This proceeding is his first encounter with the criminal justice system. [ 4 ] His family immigrated from Nicaragua in the late 1980s. He is the youngest in his family and was born in this country. He is truly remorseful for his behaviour including assaulting a Good Samaritan, Robert Mackay. He has made his sincere and heartfelt apology in court to Mr.

Mackay and to the City of Vancouver. [ 5 ] The Crown seeks a sentence of imprisonment of three to five months for the offence of participating in the 2011 riot and a concurrent sentence of five to seven months for the assault of Mr. Mackay. [ 6 ] The defence seeks a sentence discharging Mr. Garcia on conditions in the community or a suspended sentence with community work service being an integral component of any such sentence. If a custodial sentence is to be imposed, the defence seeks a conditional sentence order with strict conditions. [ 7 ] I turn to the underlying principles.

As I noted in my recent decision of R. v. Kozak-Welschlau , the central facts surrounding the 2011 Vancouver riot are not in dispute. With over 100 sentencing decisions summarizing the circumstances of this riot, the nature, extent, and impact of the riot are well known and need not be reviewed extensively. [ 8 ] The key sentencing principles from these riot sentencing cases including R. v. Loewen , R. v. Peepre , and R. v. Kennedy- Williams , are as follows: (

a) A person who participates in a riot commits a serious offence because a riot is a grave threat to maintaining civil order and a just, peaceful, and safe society. (

b) Sentencing an offender for participating in a riot must take into account the nature and context of the riot and the individual acts of offending by the accused given his or her particular circumstances. (

c) In a riot, each participant's actions are linked to the actions of other rioters and his or her offending is part and parcel of the riot as a whole. (

d) The primary sentencing objectives in a riot offence are general deterrence and denunciation and a sentence that is most likely to achieve those objectives is a custodial sentence. (

e) A first-time offender is likely to receive a prison sentence of some significant length if there are aggravating factors such as inciting others or engaging in additional criminal acts such as assault, arson, wearing a mask, or committing multiple criminal acts in multiple locations. [ 9 ] Because taking

part in a riot is a serious offence, the sentence imposed must express society's disapproval and condemnation of the wrongful conduct. It must communicate to all through a denunciatory and deterrent sentence that significant penalties will be imposed for any person participating in a riot. This must be so if there is any hope of preventing a repeat of the mayhem and destruction that occurred on June 15, 2011.

At the same time, the sentence must take into account the particular individual circumstances of the offender to ensure that the sentence is a just one. [ 10 ] As to the circumstances of the offence, having given due consideration to the evidence adduced, I find as fact the following. Mr. Garcia was in the midst of the rioters at key points of a serious disturbance including in front of the Hudson's Bay store and thereafter near Robson and Granville Streets.

He remained in the riot zone of Downtown Vancouver for a period of 2.5 hours at a minimum from the start of the disturbance at 8:00 p.m. to roughly 10:30 p.m. [ 11 ] Mr. Garcia was in the vicinity of the Hudson's Bay where two significant riot events were occurring. First, rioters were damaging the windshield of a parked Ford Fusion adjacent to the Bay while others were repeatedly hitting the windows of the Bay to vandalize or break into the store. Along with many others, Mr. Garcia was initially watching these events. However, within that environment, Mr.

Garcia wilfully participated in an attempt to turn over the Ford Fusion after watching it being damaged by others. [ 12 ] By trying to overturn it, he was attempting to cause further damage to the body of the vehicle and encouraging others to do so. This conduct took place in a fully engulfed riot zone with looters entering the Bay through broken windows and others watching and

encouraging others or themselves damaging property. Mr. Garcia stopped rocking the vehicle after about four pushes and backed off as police entered the area. [ 13 ] Mr. Garcia left Seymour Street on seeing police approach and did not leave the downtown zone as he should have done. He remained within the Granville, Georgia, and Robson Street corridors in Downtown Vancouver [ 14 ] The video of the Seymour Street scene outside the Bay shows an uncontrollable crowd bent on destruction. The banging of projectiles against windows and doors and the sounds and shattering glass can be heard over the din of the crowd.

The 911 call by Ashley Singh and the victim impact statement of Dana Hall show that the Bay personnel were very fearful and the trauma of that night remained with many of them long after the riot was over. [ 15 ] Moving next to Granville Street, the video evidence shows that Mr. Garcia was among a large crowd watching rioters taking running turns in their attempts to break down the windows or doors of the Bay. Mr. Robert Mackay and another young man stood guard in front of the large display windows of the Bay. Mr.

Mackay was pacing to and fro and gesturing to those who approached to keep their distance from the display windows. Mr. Mackay was trying to prevent further damage to the Bay, a fact that could not have been missed by anyone including Mr. Garcia who at one point stood very close to him. [ 16 ] Just after rioters succeeded in shattering a display window, Mr. Garcia moved to the front of that window and stood next to another male. Mr. Mackay immediately put his arms around Mr. Garcia in a bear hug and moved him several feet away from the open window front. [ 17 ] As for the assault on Mr.

Mackay which gives rise to Count 2, the video evidence shows that Mr. Mackay grabbed a pole directed at him or towards him or towards a window and held it out as a buffer between himself and the rioters as he moved towards a group of men. He was quickly surrounded by this group of men who assaulted him and drove him to the ground. [ 18 ] As soon as Mr. Mackay was overtaken by others, Mr. Garcia lunged towards the back of Mr. Mackay and punched him about the head and shoulders at least four times. Mr.

Garcia was still lunging forward trying to land more blows when he was pulled back by another. [ 19 ] The defence contends that Mr. Garcia's assaultive behaviour towards Mr. Mackay is explainable by the fact that Mr. Mackay grabbed him first. Mr. Garcia contends that he was not doing anything illegal when Mr. Mackay grabbed him and summarily removed him from the front of the window. I do not accept this contention. I find that Mr. Garcia was in the midst of a rioting crowd at a time when there was a full-scale assault on the windows of the Hudson's Bay Company. It is clear to anyone viewing the video that Mr.

Mackay, by words and gestures, was trying to keep other rioters from approaching or damaging the display windows. [ 20 ] I reject that Mr. Garcia was not doing anything illegal when he chose to further insert himself into an already volatile environment by moving towards an open point of entry into the Bay caused by the window being vandalized by others. I also reject that Mr. Garcia approached the shattered window with an innocent or benign intent to prevent another from looting. Mr.

Garcia's actions throughout the evening are not consistent with any attempt to check unlawful behaviours, whether his own or those of others . [ 21 ] It is relevant that after the assault of Mr. Mackay, Mr. Garcia returned to the very window, but was now outnumbered by others ahead of him. His actions on the video show his attempts to get to the front and close to the objects in the window which is not consistent with trying to prevent looting. I find that it was entirely reasonable for Mr. Mackay to believe that Mr.

Garcia's proximity to the broken display window immediately after it shattered was consistent with an unlawful attempt to cause further loss or damage to the Hudson's Bay Company. [ 22 ] I find that Mr. Mackay's action in moving Mr. Garcia away from the window was reasonable. Mr. Mackay did not strike or punch him or shove him to the ground, but lifted him up and swung him away from the Bay's broken window. He used the least amount of force consistent with the surrounding circumstances. Having said that, I accept that Mr. Mackay's earlier handling of Mr. Garcia was a motivating factor in Mr.

Garcia's decision to join in on the assault of Mr. Mackay. [ 23 ] In coming to my decision about the moral gravity of the assault and the degree of responsibility of Mr. Garcia, I reject any suggestion that Mr. Garcia honestly believed that his safety was in peril when he assaulted Mr. Mackay. Mr. Mackay had already walked past Mr. Garcia and into the street and was facing into the crowd with his back to Mr. Garcia. [ 24 ] I find that Mr. Mackay was not a direct threat to Mr. Garcia when he was overtaken by some of the crowd. It was when Mr. Mackay was overcome by others that Mr.

Garcia joined in by moving quickly towards him to punch and hit him several times in and about the head, all while others were also assaulting him. [ 25 ] Mr. Mackay lay curled up in a foetal position after the assault. He suffered immediate pain and irritation from a noxious spray. His soft tissue injuries took weeks to heal. He has suffered loss of his privacy and now expresses some regret about trying to do the right thing at the time. [ 26 ] After assaulting Mr. Mackay, Mr. Garcia remained in the riot zone on Granville Street at its intersections with Georgia and with Robson Streets for a further hour.

I make no finding of attempting looting as urged by the Crown, but nor am I prepared to make a finding that his conduct was altogether benign. [ 27 ] He did not leave the downtown core, again, as he should have and he appeared to be entertained by the unfolding loss and destruction as evidenced by his conduct in front of the cameras at and around the commercial building at 798 Granville Street housing Winners, Future Shop, and Café Crepe.

He was in the midst of the crowd giving tacit, if not express, encouragement as others broke a set of glass doors and surged into that building. [ 28 ] The overall damage from all riot offences was enormous with nearly $3.8 million in total losses. The cost to replace the Ford Fusion that Mr. Garcia attempted to overturn was $29,000. The damage to Café Crepe and the Future Shop tenants was close to

$11,000. The loss and destruction to the City's reputation and the fear instilled in all who were held hostage by the mob is incalculable. I refer to my comments in my earlier decisions of R. v. Kozak-Welschlau at paragraphs 53 to 56, R. v. Chou at paragraphs 28 to 30, and the comments of Judge Kitchen in R. v. Makris , 2013 BCPC 239 , for a fuller exposition of this point. [ 29 ] The many sentencing decisions in relation to the 2011 Vancouver riot collectively confirm that within the guidelines provided by the Court of Appeal in R. v. Peepre 2013 BCCA 115 and R. v.

Kennedy-Williams 2013 BCCA 116 , sentencing is an individualized process that takes into account the circumstances of the offence and that of the offender. [ 30 ] A sentencing court is guided by the fundamental purpose of sentencing which is to contribute to the respect for the law and the maintenance of a just, peaceful, and safe society as noted in s. 718 of the Criminal Code .

As indicated in ss. 718 through 718.2 of the Criminal Code , a sentence must be proportionate to the seriousness of the wrongs committed by the offender having regard to his particular circumstances and be on par with sentences imposed on similarly situated offenders committing similar offences. [ 31 ] The 2011 Vancouver riot cases affirm that participating in a riot is a serious offence for which, generally speaking, a custodial sentence is a fit sentence even for a first-time youthful offender.

The manner in which it is to be served, whether in jail or in the community, will depend on what sentence meets the requirements under s. 718 through 718.2 or under 742.1 of the Criminal Code . [ 32 ] In R. v. Peepre , the B.C. Court of Appeal at paragraph 30 stated as a broad proposition that in a riot aggravating factors including assaultive behaviour will generally lead to a longer prison term and not a custodial sentence to be served in the community subject always to an individual's personal circumstances. [ 33 ] I have considered carefully Mr. Garcia's personal circumstances.

I accept that his behaviour on the night of the riot was out of character for him and one that he sincerely regrets. His counsel, Mr. La Liberté, has provided the court with ample evidence that Mr. Garcia is otherwise a contributing member of society. [ 34 ] In sentencing an offender, the court must consider comparable cases, and here there is a body of sentencing law arising from the riot and the assaults committed in June 2011.

The relevant cases including Timleck , Beddow , Dack , Mahoney , and Wise indicate that a range of sentence of three to five months' imprisonment for participating in the riot and three to eight months' imprisonment for group or swarming types of assault in the context of a riot. In those cases, a conditional sentence of imprisonment was found to be inconsistent with the need to denounce and deter offenders. [ 35 ] On an assessment of the whole of the evidence and having regard to the facts in other similar riot assault cases, the mitigating factors in Mr.

Garcia's case are more compelling than the majority of the comparator cases. Mr. Garcia is young, is of good character, and lacks a criminal record. He has entered guilty pleas which have saved the justice system considerable time and expense. He has sincerely expressed remorse for his unlawful conduct. [ 36 ] He has a highly supportive family who stands behind him. I am impressed by the very positive letters of support filed on his behalf which confirm that he is a loved and valued member of his community. Many expressed shock and disbelief about Mr. Garcia's involvement in the riot. I accept that Mr.

Garcia has suffered from being publicly branded a rioter and a law-breaker. At the start of his young adult life, he will have a criminal record for the offences he has committed. [ 37 ] The aggravating factors are that Mr. Garcia's individual acts of offending were deliberate and serious. He remained in the midst of the rioters from the start to the end stages. He attempted to overturn a vehicle after seeing it very badly damaged by others. He assaulted a Good Samaritan, Mr. Mackay, and contributed to his injuries and emotional distress. [ 38 ] As regards Count 1, I find that Mr.

Garcia's overall behaviours during the riot were not as aggravated as in the cases of Timleck , Beddow , Dack , Mahoney , and Wise . He did not break windows, throw projectiles, use a weapon, commit arson, act as a ringleader, look from stores, or confront police. His unlawful conduct was to remain in the riot zone throughout the evening as destruction ensued with one brief attempt to overturn a damaged vehicle followed by the assault on Mr. Mackay. [ 39 ] Turning specifically to Count 2 and to the assault of Mr.

Mackay, I find that the assault of a Good Samaritan in the context of group violence is a highly aggravating factor in sentencing. It should be remembered that the role of a Good Samaritan is to render assistance to the injured or to safeguard property from unlawful acts in circumstances where police assistance is not readily available. [ 40 ] When a person undertakes a civic duty to help protect property in circumstances of civil unrest, he must be able to count on the law to protect him.

A deterrent and denunciatory sentence for those who assault a Good Samaritan will communicate that there will be serious penal consequences for those who, particularly through group violence, attack persons trying to maintain the peace or prevent damage and destruction. [ 41 ] In Mr. Mackay's victim impact statement, there is an element of regret expressed by him for the disruption of his life, for the loss of privacy he has faced and continues to face, and the emotional toll that his attempts to be a good citizen has cost him. It is a highly aggravating factor that the unlawful act of violence against Mr.

Mackay, as committed by Mr. Garcia along with others, may reduce or diminish the readiness of citizen volunteers to assist in times of crisis. [ 42 ] Principles of denunciation and general deterrence lie at the forefront in sentencing for the offence of participating in a riot. There should be consistency in the sentencing of similarly situated offenders participating in the same set of offences, but individual circumstances must always be considered.

As well, restorative objectives and principles of restraint must also be considered for first- time youthful offenders. [ 43 ] The key point that emerges is that first-time youthful offenders participating in a riot will more likely than not face a sentence of imprisonment. I have discussed my findings as to the factors including the aggravating and mitigating elements in this case, noting that the most aggravating factor here was the assault of Mr.

Mackay in the context of a riot and in the context of group violence. [ 44 ] In my view, a discharge or suspended sentence does not accord with the moral gravity of the offences of rioting or assault and is

not on par with sentences in the comparator cases. [ 45 ] In considering the fitness of a conditional sentence order under s. 742.1, I find that there is a negligible risk that Mr. Garcia would not reoffend if he were to serve a sentence in the community, but such a sentence would not express the required degree of denunciation or general deterrence and would not be consistent with the sentencing of similar offenders committing similar crimes, being those who participated in the riot and those who assaulted Mr.

Mackay. [ 46 ] As I have noted, the range of sentence for riot-related offences is imprisonment of three to five months for participating in a riot and five to eight months for group or a swarming type of assault in the context of a riot. While I am satisfied that society's censure of Mr. Garcia's conduct must be demonstrated through a custodial sentence, it is one that must be commensurate with his overall culpability. [ 47 ] Material to the sentence I am about to impose are the less aggravating factors underlying Mr.

Garcia's overall participation in the riot when contrasted to the findings in the riot and assault cases of Timleck , Blake , Beddow , or Mahoney . What ameliorates the severity of the crime here is that the scope of Mr. Garcia's offending was more limited and the most serious of his acts, being the assault of Mr. Mackay, arose because he was in part reacting to the force Mr. Mackay had moments earlier used on him. This is said not to excuse his behaviour or to absolve him from wrongdoing. [ 48 ] I have explained why the law must condemn any unlawful assault on a Good Samaritan through an appropriate sentence.

I have found that the assault of Mr. Mackay occurring in group violence targeted against one person and occurring in the context of a large-scale riot is a significant aggravating factor that merits a sentence of imprisonment. The prelude to the assault remains a factor in assessing the moral gravity of Mr. Garcia's response and is relevant in fixing a just sentence. [ 49 ] In sum, the antecedents temper the seriousness of Mr. Garcia's wrongful assaultive conduct, but do not absolve him of responsibility. [ 50 ] Would you stand, please, Mr. Garcia? [ 51 ] Mr.

Garcia, for the reasons aforesaid, I sentence you for the offence of participating in a riot under Count 1 to 60 days' imprisonment. [ 52 ] I sentence you for the assault of Mr. Mackay under Count 2 to 120 days of imprisonment concurrent to Count 1. [ 53 ] The global sentence imposed is a custodial sentence of 120 days. There will be no probationary order to follow. I am satisfied you do not need to be rehabilitated. These are significant jail sentences for a first-time youthful offender from a good family who made the wrong choices which contributed to inordinate damage to this city and caused harm to Mr.

Mackay. These are necessary sentences for offences that cause serious threats to an orderly society. [ 54 ] As for ancillary orders, I impose a victim fine surcharge of $100 on each count for a total of $200 payable on or before December 31st, 2014. [ 55 ] As well, under s. 110 of the Criminal Code , Mr. Garcia is prohibited from possessing for a period of 10 years any firearms, ammunition, substances, or devices as enumerated in that section, and under s. 487.51(

b) of the Criminal Code , Mr. Garcia shall submit to the taking of any number of samples of bodily substances reasonably required for forensic DNA analysis because I am satisfied that such an order is in the best interests of the administration of justice and will have minimal impact on Mr. Garcia's privacy and security. [ 56 ] Thank you. [ 57 ] MS. CRONIN: Your Honour, if my friend and I might just clarify. It may be that we just misheard. With respect -- [ 58 ] THE COURT: I am sorry? [ 59 ] MS. CRONIN: -- to the assault allegation, was that a 100-day sentence or 120 days? [ 60 ] THE COURT: 120. [ 61 ] MS.

CRONIN: Thank you. [ 62 ] THE COURT: All right, thank you, and so -- [ 63 ] MS. THOMAS: And -- [ 64 ] THE COURT: -- Mr. Garcia will be taken into custody now to commence his sentence. [ 65 ] MS. CRONIN: Yes. [ 66 ] MS. THOMAS: Yes, Your Honour, and there is -- I will direct a stay of proceedings on the A Information. [REASONS FOR SENTENCE CONCLUDED]