R. v. Chou Date:, 2013 BCPC 23

Citation: R. v. Chou Date: 20130208 2013 BCPC 0023 File No: 223533-1-V Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOHNNY CHOU REASONS FOR SENTENCE OF THE HONOURABLE JUDGE H. DHILLON Counsel for the Crown: D.J. Porte Counsel for the Defendant: D.M. Foster Place of Hearing: Vancouver , B.C. Date of Hearing: January 29, 2013 Date of Judgment: February 8, 2013 [ 1 ] Mr. Chou has entered a guilty plea to participating in the 2011 Vancouver Stanley Cup Riot [“Vancouver Riot”]. He is before

the court to be sentenced. Circumstances of the Offence [ 2 ] Mr. Chou was one among many of the estimated 155,000 people in downtown Vancouver on June 15, 2011 awaiting the outcome of the 7 th game of the Stanley Cup finals. He was having dinner in a restaurant with friends. The downtown streets were packed with celebrants. The hockey game ended at about 7:45 p.m. and shortly thereafter vehicles parked on Georgia Street were damaged and set ablaze by some agitators. Almost simultaneously with that act of arson, the crowd mood turned decidedly negative.

Large scale rowdiness led to overt acts of violence and damage to businesses and property. Many in the crowd watched and cheered. Storefronts in the downtown core were breached with the use of force, followed by a rush of people who entered the businesses for the purpose of stealing and looting. Mr. Chou was one of those individuals. [ 3 ] Mr. Chou admits that he remained in the downtown core for a period of about two hours during which time the restless crowd turned riotous. He walked through the area where rioting was taking place.

He was at the corner of Georgia and Granville Streets and saw The Bay Department store windows being smashed by looters. On Seymour Street he saw a vehicle being destroyed and burned. [ 4 ] He was in the crowd outside London Drugs and watched as people broke down its glass doors and metal security screen. [ 5 ] Mr. Chou made the decision to enter London Drugs with the swarm of people intent on looting. He took 3 bottles of cologne and left. He then returned to the store to steal a bag in which to carry the stolen merchandise. [ 6 ] Mr.

Chou’s actions are captured on the London Drugs video surveillance where he is seen entering and leaving the store. His total presence in the store is a matter of a few seconds. [ 7 ] There is no video surveillance evidence of Mr. Chou with respect to his break and enter into the Sears Department store later in the evening. His culpability for this offence arises because he made a voluntary admission to police that he entered and stole another bottle of cologne.

He then gave the goods away. [ 8 ] He eventually left the downtown core by walking across a bridge and getting a ride home from a friend. [ 9 ] Tipsters identified Mr. Chou after his photo image was published on the Vancouver Police Department riot website. He was arrested on September 16, 2011 and made a voluntary statement to police outlining his involvement in the riot.

He explained he got “caught up in the moment” and thought that it would be a “once in a lifetime opportunity” to join the multitudes looting the stores. [ 10 ] Turning specifically to the impact of the crimes on the victims, the evidence shows that London Drugs shut down at 7:40 p.m. as the crowds outside appeared to increase in volatility and hostility. Over the next hour the employees within heard banging sounds as people began an attempt to break the glass to gain entry to the store. Nearby the Bay was also at risk of being overcome with violent force.

It took only about 10 minutes for the drugstore doors and security gate to be breached. The frightened staff sought refuge in a secure receiving area. The video of the front of London Drugs shows waves of looters running in and out in jubilant celebration of their thievery. By contrast, the calls of Loss Prevention officer Mr. Dhaliwal to 911 and the victim impact statements of the employees show their fear and terror, loss of trust, and helplessness as they heard the sounds of destruction around them and watched on internal CCTV as over 300 looters swarmed their workplace.

The monetary loss to London Drugs was over $832,000. [ 11 ] Similarly, at Sears the crowds outside overwhelmed the skeletal staff inside and looting started at 10:40 p.m. and lasted to around 1 a.m. The staff retreated to a safe area as looters rampaged and destroyed property and stole merchandise.

The financial loss to Sears was nearly $400,000. [ 12 ] Another large retailer, The Bay, sustained about $1.5 million dollars of loss and damage. [ 13 ] The impact of the riot on the City of Vancouver, its citizens and businesses is set out in Exhibit 3 and shows that there were numerous acts of arson, mischief, break and enter and assault. The majority of the assaults were committed against police officers who had been called to duty to preserve the peace. [ 14 ] The total estimated monetary loss as a result of the riot is well over $3.7 million. [ 15 ] The non-monetary costs are incalculable.

The psychological harm caused to those under siege and held captive by the rioters is very real. The fear for personal safety of those business owners and employees overcome by the rioting crowds is set out in the victim impact statements and calls to 911. Their helplessness and vulnerability due to the inability of law enforcement to protect them, and the cascading effects of this knowledge on their family members waiting at home is but one example of the non-monetary harm the Vancouver Riot caused. Circumstances of Mr. Chou [ 16 ] Mr. Chou is a youthful first offender. He was age 19 at the time of the offence.

He lives with his parents and two siblings in a close knit and supportive family. The Pre-Sentence Report of Probation Officer Jennifer Zimoch describes him as a young man who has a busy and balanced life, achieving A`s and B`s in his university studies, working part time on weekends at near minimum wage employment, and participating in extra-curricular league sports as a referee. He founded a charity at university which has held fundraising events to benefit the needy. [ 17 ] By all accounts, Mr. Chou leads a highly pro-social lifestyle for his young age. He is dedicated to his schooling and to

volunteerism in sport and through charitable works. [18] According to Probation Officer Zimoch, Mr. Chou shows “great insight into his actions, reactions and consequences” flowingfrom his conduct. He takes full responsibility for his wrongs and is extremely regretful of the harm caused to the victims, thecommunity and to his own family whom he has let down. [19] Letters of reference filed show that Mr. Chou has a strong support network of friends and colleagues who describe his offence asinconsistent with his otherwise good character and ethics.

Sentencing Positions [20] The Crown seeks a sentence of imprisonment of 30 to 45 days to be served intermittently in jail, followed by a period ofprobation with terms including 50 hours of community work service. It says this sentence is consistent with the moral gravity of theoffence and the degree of responsibility of the offender.

It opposes a sentence of jail to be served in the community under conditionspursuant to s. 742.1 of the Criminal Code. [21] The Defence urges the court to impose a conditional sentence of imprisonment of 90 to 150 days, with appropriate conditions,including restrictions on liberty and an order for community work service. It recognizes the seriousness of the offence but says that Mr.Chou`s lower level of offending and rehabilitation for youthful first time offenders requires the least restrictive sanction consistent withsentencing principles: s. 718.2(

d) and (

e) of the Criminal Code. The Law Case Authorities [22] I have considered the long line of legal authorities pronounced over the span of the last 20 years from the Penticton Riot of 1991(R. v. Loewen, infra) to the very recent sentencing decisions of this court in respect of the 2011 Vancouver Riot. I accept the guidancethey provide as to central sentencing principles, and I endorse their consistent theme that public disorder in the context of a riot escalatesthe gravity of any underlying offence committed by the offender. I do not intend to refer to all the cases but I have read and consideredthem.

Principles of Sentencing [23] Sentencing is an individualized process guided by principles found in the common law and under statute which collectivelyremind us that it is a fundamental purpose of sentencing to contribute to “respect for the law and the maintenance of a just, peaceful andsafe society”: see s. 718 of the Criminal Code and R. v. CAM (SCC), [1996] 1 SCR 500. [24] Particularly important in fixing a sentence is to express society’s condemnation of the unlawful acts of the accused and to deterother persons from rioting in future.

These are the primary objectives in sentencing of offenders who participate in a riot: see R. v.Loewen, 75 C.C.C.(3d) 183, 1002 CarswellBC 1104 (BCCA) and R. v. Catenacci 2012 ONCA 157. [25] A further and relevant sentencing objective is to promote in offenders a sense of responsibility for their actions and anacknowledgement of harm done to the victims and to the community, and to provide an avenue for reparations for the harm caused: s.718 (

e) and (

f) of the Criminal Code. [26] Typically, the majority of individuals who participate in riots after sporting events are first-time offenders. They are persons ofotherwise good character. Their recidivism and lapse into reoffending is generally not an ongoing concern. By the time their chargeshave worked their way through the criminal justice system, they have felt the full force of community disapproval through negativecommentary on social networks and in the news media. Many have been embarrassed and chastened after examining their conduct in theclear light of day.

Deterring these offenders personally and specifically from repeating such behavior is not at the forefront ofsentencing objectives. Rather, it is general deterrence of future rioters that is the more pressing objective of sentencing. Analysis [27] The gravity of the offence committed by Mr. Chou is to be considered from two vantage points. From the perspective of hisparticipation in the Vancouver Riot, his conduct is serious. From the perspective of his specific acts, his moral lapses are at the lowerend of the spectrum than some rioters who have been sentenced to date. Balancing these factors and holding Mr.

Chou appropriatelyaccountable for his role in the riot through a denunciatory and deterrent sentence is the primary goal of sentencing. [28] Turning to the first perspective, participation in the riot, the video images entered into evidence show how law and order wasrendered ineffective by the actions of the mob, of which Mr. Chou was a member. The mob mentality is incendiary and destroys thefabric of civil society. It undermines the rule of law, and gives licence to those who seek to perpetrate chaos and mayhem.

When groupunrest devolves to lawlessness, those who choose to stay in their midst are not innocent bystanders – their presence gives tacit or overtencouragement to others to join the fray. The group as a whole offers the shield of perceived anonymity to those individuals who,bolstered by adrenaline or a false sense of bravado, feel free to commit acts of lawlessness for thrill seeking and personal gain. As has

become evident, it is a fleeting anonymity in the age of social media. [29] The force of the group also intimidates decent law abiding people from acting to prevent the wrongs. Those who might decrythe bad behavior are silenced or deterred, leaving the rioter to act with impunity. Police faced with large crowds of hostile people andprojectiles are neutralized. [30] For these reasons, participating in a riot is a very serious offence. As noted in so many decisions of this and superior courtsfrom R. v. Loewen, supra in 1992 to R. v.

Patillo in 2012, the individual component of personal offending may be small, but thecollective acts of violence and destruction rob a democratic society of the value of safety, stability and serenity that comes from acollective adherence to the rule of law. [31] These points are cogently summarized in R. v. Patillo 2012 BCPC 299 , 2012 BCPC 0299: 37 In a riot the actions of one are the actions of all. Each rioter, by his or her mere presence, or by more active involvement,encourages, aids and abets every other rioter.

By its very existence, the mob serves to make the destruction of property and violenceacceptable, almost normal, for each individual rioter. [32] Mr. Chou’s unlawful conduct consists of his remaining in the downtown core of Vancouver and watching the destructionunfold. Once the doors of London Drugs were breached by some, he entered the store on two occasions and stole some cologne. Henext entered the Sears Department Store and again took some cologne. [33] His overall presence in the area was about 2 hours, and his entry in and out of the stores was mere seconds.

In the context ofthe larger events that were occurring in downtown Vancouver, I find that his conduct contributed to destabilizing an area that was beingoverrun with rioting, looting and mayhem. His intentional and unlawful behavior contributed to a state of affairs that overwhelmed andnearly incapacitated the city’s emergency resources and personnel.

His actions added to the terror of employees and business ownerswho felt the brunt of the force generated by the anger and destruction of the riotous crowds on Granville, Seymour, Georgia and RobsonStreets. [34] To suggest that an offender was caught up in the moment and committed an opportunistic crime does not lessen the moralgravity of the offence - the public disorder and large scale disturbance of a riot provide the very opportunity for persons to commit suchcrimes. [35] Turning to the second perspective, the case law requires the court to look beyond the general context and at the specific actionsof the accused during the riot and to craft a sentence that addresses his offending in a contextualized and just manner. [36] The sentencing decisions that I have been provided show that those who instigate a riot, or commit brazen acts of vandalism orviolence, offend in a manner glorifying or celebrating their hooliganism, cover their face during their offending, or commit numerousoffences will be sentenced to actual jail terms or lengthy conditional sentence orders: see inter alia, R. v.

Loewen, supra; R. v. Simpson2004 ABCA 290; R. v. Catenacci 2012 ONCA 187; R. v. Dickenson 2012 BCPC 40; R. v. Alviar 2012 BCPC 181; R. v. Yates 2012BCPC 250 , 2012 BCPC 0250; R. v. Patillo 2012 BCPC 299 , 2012 BCPC 0299; R. v. Wernicke 2012 BCPC 451, 2012 BCPC 0451; and R. v.

Ovando Renderos 2012 BCPC. [37] Those offenders whose actions are at the lower end of the spectrum of individual harm or damage, particularly without personalacts of vandalism or violence, will still face considerable restrictions on their liberty because they have committed a serious offence but aproperly crafted conditional sentence order may be appropriate to denounce their wrongdoing and to deter others: see R. v. Andrews 2012BCPC 486 , 2012 BCPC 0486; R. v. Cacnio 2012 BCPC 314; R. v. Pateman 2012 BCPC 455; and R. v.

Snelgrove 2012 BCPC235. [38] The range of sentence in the riot cases runs from a suspended sentence to 18 months incarceration, having regard to the varyinglevels of moral culpability and the differing personal circumstances of the offenders. The key point that emerges is that a sentence ofimprisonment is not out of the range of a fit sentence for a first time youthful offender participating in a riot, but whether that sentence isserved in an institution or in the community will depend on the manner, degree and scope of offending during the riot. [39] In the case before the court, Mr.

Chou did not smash windows, damage vehicles, hurl projectiles, assault people, attempt arson,or grandstand on top of objects and structures in order to urge or incite others. He wrongly joined the surge of looters and entered twostores in relatively brief forays and took bottles of cologne. He remained in the midst of the riot for two hours. For those actions he willreceive a criminal record. The effects of his lapse in judgment into criminality will follow him into the future. His name is now in thepublic domain as a rioter and an offender.

These stigmas are the natural consequences of his risk taking on the one hand, but on theother they will have significant and long lasting repercussions for a young adult in the beginnings of building a life and a career. [40] The Supreme Court of Canada R. v. Nasogaulak 2010 SCC 6 at paras. 41-44 has said the principal of proportionality is centralto the sentencing process.

The sentencing judge must assess the moral blameworthiness of the offender and the gravity of the offenceand strive to ensure that "the degree of censure required to express society's condemnation of the offence is always limited by theprinciple that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it." The Supreme Courtfurther notes that any relevant aggravating or mitigating circumstances relating to the offence or the offender are secondary sentencingprinciples with primacy to be given to the proportionality analysis. [41] Sentencing judges are directed by the Criminal Code that the court must not deprive an offender of liberty if less restrictivesanctions may be appropriate in meeting the sentencing objectives, and all available sanctions other than imprisonment that arereasonable in the circumstances must be considered: s. 718.2 (

d) and (

e) of the Criminal Code.

[42] I have said a great deal about the intrinsically aggravating nature of committing crimes in the context of a riot. I have noted thedenunciation faced by Mr. Chou in the court of public opinion and the burden of a criminal record on his future aspirations. [43] I must also note the mitigating factors in determining a fit sentence. As in the case with any first-time offender, the absence of aprior record is a mitigating factor although less impactful for riot offences.

Prior good character is a less compelling factor because arioting offence by its nature tends to disinhibit people who are otherwise law abiding. [44] Other mitigating factors include that Mr. Chou cooperated with police, including providing a full, inculpatory statement of hisconduct without legal advice. He entered a guilty plea, which has spared the criminal justice system the expense of mounting a multi-day trial. I note the positive pre-sentence report of the Probation Officer and accept that Mr. Chou is extremely remorseful andembarrassed by his behaviour.

He has made a concerted effort to be a contributing member of society since the events of June 2011. Hehas complied with his bail except on one occasion when he drove into the downtown core en route to an event outside his arearestriction. However, over the course of some 12 months on bail he has not breached any other terms. [45] The principle of parity, that similarly situated offenders committing similar offences should receive substantially the samesentences, is a relevant consideration because there is a cohort of sentenced Vancouver Riot offenders against whom to compare Mr.Chou’s culpability.

I conclude that his overall culpability is at the lesser end of the spectrum than many who have received conditionalsentence orders. [46] Having considered the facts and the law, I am satisfied that a properly crafted conditional sentence order can meet the objectivesof denunciation and deterrence: R. v. Proulx, 2000 SCC 5 , [2000] S.C.J. No. 6 at 115. 115 Finally, it bears pointing out that a conditional sentence may be imposed even in circumstances where there are aggravatingcircumstances relating to the offence or the offender.

Aggravating circumstances will obviously increase the need for denunciation anddeterrence. However, it would be a mistake to rule out the possibility of a conditional sentence ab initio simply because aggravatingfactors are present. I repeat that each case must be considered individually. [47] For the foregoing reasons, and considering Mr.

Chou’s role in the offence and his individual circumstances, I am satisfied thata sentence of imprisonment to be served while he is subject to conditions in the community under s. 742.1 of the Criminal Code is a fitsentence in all the circumstances. [48] Would you stand please, Mr. Chou. Sentence [49] I hereby sentence you to a term of imprisonment of 90 days to be served in the community pursuant to conditions of sentenceunder s. 742.3 of the Criminal Code. You must follow faithfully all of the conditions of your sentence.

If it is alleged and proved thatyou have breached any condition of your sentence, the presumptive result will be that you will spend the unexpired portion of yourremaining sentence in jail. [50] The terms of the Conditional Sentence Order are as follows: 1. You will keep the peace and be of good behaviour. 2. You will appear before the Court if directed to do so. 3. You will report in person to the Conditional Sentence Supervisor at 275 East Cordova Street, Vancouver, British Columbia before 4p.m. February 12, 2013 and thereafter when and in the manner directed by your Sentence Supervisor. 4.

You must not leave the Province of British Columbia without the written permission of the Court or your Sentence Supervisor. 5. You must reside where directed by your Sentence Supervisor. 6. You must notify the Court or your Sentence Supervisor in advance of any change in your name or address and notify the same of anychange in your employment or occupation. 7.

You must not be outside your place of residence between the hours of 8 p.m. and 6 a.m. the following morning, seven days a week,except with the written permission of your Sentence Supervisor obtained in advance for going directly to, attending at and returningdirectly from your scheduled employment or educational studies or as otherwise permitted in writing by your Sentence Supervisor. 8. When outside your residence during curfew hours for employment or education purposes, you must carry on you the writtenpermission of your Sentence Supervisor and present it to a peace officer when requested to do so. 9.

You must present yourself at the door of your residence or answer your telephone when requested by a peace officer or correctionsstaff to confirm your compliance with your curfew condition. 10. You are not to be found in any Sears Canada Inc. or London Drugs Ltd. store in the Province of British Columbia. 11. You are to abstain absolutely from the possession and consumption of alcohol or any illicit drugs and substances unless prescribed to

you by a licensed medical practitioner. 12. You are not to be found in any bar, pub or similar establishment where the primary licensed commercial activity is the sale of alcohol to the public. [ 51 ] Upon the expiry of your Conditional Sentence, you will be bound by a term of probation of one year with the following terms: 1. You shall keep the peace and be of good behaviour. 2.

Within two working days of the expiration of your Conditional Sentence order and at the direction of your Sentence Supervisor you must report to the Probation Office at 275 East Cordova Street, Vancouver, British Columbia and report thereafter as and when directed by your Probation Officer. 3. At the direction of and to the satisfaction of your Probation Officer you must perform and complete 70 hours of community work service in the first 10 months of your probation term. 4.

You are not to be found in any Sears Canada Inc. or London Drugs Ltd. store in the Province of British Columbia. [ 52 ] Pursuant to s. 737(2) (b)(ii) of the Criminal Code , you shall pay the victim fine surcharge on or before April 15, 2013. ____________________________ The Honourable Judge H. Dhillon Provincial Court of British Columbia