R. v. Bernabe Date:, 2013 BCPC 85

Citation: R. v. Bernabe Date: 20130408 2013 BCPC 0085 File No: 223542-1-V Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. FERNANDO RAFAEL ELEVADO BERNABE EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. LOW Counsel for the Crown: D. Porte Counsel for the Defendant: J. Tarnow Place of Hearing: Vancouver , B.C. Date of Judgment: April 8, 2013 [ 1 ] THE COURT: Twenty-one-year-old Fernando Rafael Bernabe pled guilty in May 2012 to participating in the Vancouver riot

which occurred on June the 15th, 2011. The Crown submits that Mr. Bernabe should be sentenced to one-month jail to be served intermittently in an institution plus a period of probation. The defence agrees that a jail sentence would be appropriate, but submits that in Mr. Bernabe's circumstances all of the principles of sentencing would be properly addressed with a five to eight-month conditional sentence order. [ 2 ] Various materials submitted by the parties have been entered as exhibits.

To these, I will add a list of the parties' authorities as Exhibit 9 and the Crown's sentencing grid at Exhibit 10. [ 3 ] The context of the riot is described in Exhibit 3. The descriptions are similar to those contained in the sentencing decisions of my colleagues which pertain to the June 15th riot. I invoke those descriptions and it is not necessary to reiterate them in detail. [ 4 ] Mr. Bernabe, who was 19 years at the time, like tens of thousands of other citizens, attended at the live broadcast site near the Vancouver Public Library to watch the final game of the 2011 Stanley Cup.

As he watched the game, Mr. Bernabe consumed alcohol and marihuana and became intoxicated. [ 5 ] Apart from moving with the mob and watching various groups destroy vehicles and shops, Mr. Bernabe joined a crowd destroying vehicles parked on an outdoor parkade where he assisted in trashing three vehicles which the crowd overturned. All the while, a fourth vehicle was burning nearby. Mr. Bernabe rejoiced in the destruction, cheered on the other participants and joined others on top of one of the overturned vehicles. Mr.

Bernabe left the parkade and visited other scenes of destruction before the leaving the riot well after midnight. [ 6 ] While the extent of the damage to each vehicle specifically caused by Mr. Bernabe was limited, all three vehicles ultimately were completely destroyed. I have read the respective owners' victim impact statements. All the victims were profoundly affected financially and emotionally by the wanton destruction of their property.

The owner of one vehicle was in a nearby condominium overlooking the parkade and watched helplessly with his 11-year-old daughter as their valuable automobile was completely destroyed. None of the owners' losses were completely covered by insurance. Remarkably, private citizens raised money and donated another car to the owner of one of the destroyed cars. [ 7 ] Two days after learning that his image was on a police website, Mr. Bernabe reported to police and gave them a statement on October the 19th, 2011.

He did not at the time admit to any destructive activity until shown a video which portrayed him throwing an object at one of the vehicles. At the time, the police had no other videos showing Mr. Bernabe's involvement with the other two vehicles. Later, when other evidence was disclosed to his counsel, Mr. Bernabe admitted his additional involvement. [ 8 ] Mr. Bernabe claims his lack of forthrightness with police resulted from a blackout of his memory caused by his consumption of 26 ounces of tequila on June the 15th. While I readily accept that Mr.

Bernabe was intoxicated that night, I am sceptical he drank such a copious amount of hard liquor. Even though Mr. Bernabe was accustomed to drinking alcohol at the time, according to the reports, common sense indicates that the amount he claims to have drunk would have manifested itself in pronounced impairment of his physical abilities. There is no evidence of such impairment in the videos recording his behaviour during the riot. I am inclined to believe that Mr.

Bernabe simply shut out of his mind his involvement until confronted with the undeniable evidence. [ 9 ] According to the presentence report, although Mr. Bernabe enjoyed a stable home life, he had some difficulty in school and did not quite complete his Grade 12. After leaving school, he obtained employment in the insurance industry and was well on his way to obtaining the necessary licences to engage fully in this work at the time of the riot. As a result of this conviction, he is no longer employable in the insurance industry and has had difficulty finding his feet again.

He is supported by his mother, but lives with his brother. [ 10 ] Mr. Fleming reported that Mr. Bernabe is emotionally immature, may well have a substance abuse problem, and seems unmotivated to become financially independent or do much of anything. Otherwise, all those who wrote reference letters claimed Mr. Bernabe's involvement in the riot was completely out of character. [ 11 ] The maximum sentence for rioting where the Crown proceeds under s. 65 of the Criminal Code is two years' jail. The leading decisions concerning sentencing rioters from the B.C.

Court of Appeal, Peepre and Williams , upheld the view of Loewen that general deterrence and denunciation are of particular concern, but that concern must be balanced against the other fundamental sentencing principle, rehabilitation. [ 12 ] In Williams , the court approved my colleague's discussion of the ratio in Loewen and how it should be applied today in the context of the seminal Supreme Court of Canada decisions, Proulx and Gladue . Both Peepre and Williams held that, generally speaking, a jail sentence for rioting will be appropriate even for a first offender.

At paragraph 30 of Peepre , the court provided some direction concerning the factors to consider when determining the length of sentence and deciding whether a conditional sentence order might be appropriate. [ 13 ] Exhibit 10 contains a list of 50 of my colleagues' sentences imposed to date for offences arising from the June 15th, 2011, riot. Very few of these sentences were imposed on individuals with a criminal record. With the exception of one, all offenders have received jail sentences to be served either in an institution or in the community.

Generally, where the length of sentence permitted, the offender has been allowed to serve an institutional sentence intermittently. [ 14 ] Apart from the individual offenders' personal circumstances, the range of jail sentences for those without a criminal record reflects the offender's degree of participation in the June 15th riot. Due to the disparate circumstances of the individual offenders and the circumstances of their offences, it is difficult to reconcile all the different sentences. Peepre , at paragraph 30, provides a useful

summary of some of the salient features of some of those decisions. [ 15 ]

Section 63 and 64 of the Criminal Code define a riot as an assembly of more than three people that becomes unlawful by tumultuously disturbing the peace. Rioting is viewed as a very serious offence because those participating do so as a mob without regard for the law or the safety of their fellow citizens or their property. The participants in a riot rely on the anonymity of being in a crowd to

carry out criminal acts such as looting or vandalism. Even those who do not engage in specific criminal behaviour but remain part of the mob are also guilty of rioting since they provide cover and either express or implicit encouragement for those carrying out specific criminal acts. [ 16 ] Committing specific criminal acts may aggravate an individual's participation in a riot. In Mr. Bernabe's case, there are a number of aggravating factors. In addition to remaining with the rioting mob, inciting others by celebrating the destruction of property, Mr.

Bernabe himself engaged in the wanton destruction of private property. While doing so, he was completely reckless for the safety of others. [ 17 ] There are also mitigating factors. Mr. Bernabe had just attained the age of 19 at the time of the riot. He does not have a criminal record. Despite some initial reticence, Mr. Bernabe has fully accepted responsibility for his conduct. Mr.

Bernabe pled guilty at the first reasonable opportunity in order to accept responsibility and to express his remorse about his actions. [ 18 ] He has also, of course, saved everyone the time and expense and trauma for the witnesses by having to prosecute him. His detailed letters of apology filed with the court and his statement to the court express considerable insight into the seriousness of his conduct and its grave impact upon his community. [ 19 ] In addition to any sentence I impose, Mr. Bernabe has been the subject of considerable public opprobrium.

He was confronted by the media outside the courthouse after he entered his plea. Images of his riotous behaviour are a fixture on various Internet sites. He has lost employment in a field for which he was highly motivated. He will have a criminal record for rioting which will be with him for years, a significant burden for a young man just starting his adult life. [ 20 ] There is no issue that in order to answer the need for general deterrence and to denounce Mr. Bernabe's conduct and rioting generally, the only fit sentence for Mr. Bernabe is a jail sentence.

The only issue is the length of that sentence and whether I should allow him to serve it in the community. [ 21 ] Amongst the sentences imposed upon participants in the June 15th riot, I have particularly considered Johanson who did not have a criminal record, was 18 at the time, and whose actions during the riot were similar to Mr. Bernabe's. In addition to generally engaging with the mob and cheering others on, Mr. Johanson committed various acts of vandalism involving two automobiles and a newspaper box. [ 22 ] While Mr. Johanson's specific actions were somewhat more aggravated than Mr. Bernabe in that Mr.

Johanson helped roll over two police cars, Mr. Bernabe joined three different crowds bent on destroying three different vehicles and independently caused significant damage to two of the vehicles. Like Mr. Johanson, Mr. Bernabe was persistent and deliberate in his acts of vandalism, plus he eschewed opportunities to leave the area. [ 23 ] Somewhat like Mr. Johanson, Mr. Bernabe waited until the police publicized his involvement months later before coming forward. While it would have been better for him to come forward on his own, I have concluded that Mr.

Bernabe's failure to do so was more a reflection of his immaturity described in the reports than any mala fides . [ 24 ] Mr. Johanson received a 30-day jail sentence to be served intermittently. I have concluded that the same sentence would be appropriate for Mr. Bernabe. [ 25 ] I acknowledge that Mr. Bernabe is presently unemployed and, generally speaking, a jail sentence should be served without interruption unless there is some justification such as employment. However, I am mindful of Mr. Bernabe's young age which is compounded by his immaturity.

Serving his sentence on an intermittent basis will diminish the risks inherent in his serving a jail sentence in the general population of a prison. [ 26 ] I have considered whether to allow Mr. Bernabe to serve his sentence in the community. Plainly, he meets the first three requirements of s. 742.1 of the Criminal Code . The only issue is whether a conditional sentence would be consistent with the fundamental purposes of sentencing. [ 27 ] Notwithstanding that Mr.

Bernabe's vandalism was confined to automobiles parked in the same place, I do not read paragraph 30 of Peepre as a direction that only those who commit more than one type of criminal offence in more than one location should be sentenced to an institutional sentence. Rather, the court was particularizing this as one of a number of aggravating factors which should generally lead to longer institutional prison sentences. I note that the court included inciting others to riot as one of the aggravating factors. [ 28 ] Thirty days in jail is a significant sentence for a first-time offender like Mr.

Bernabe and reflects the very serious circumstances of his offending. I am not satisfied that allowing Mr. Bernabe to serve his sentence in the community would adequately address the pressing need to deter and denounce rioting. I am not prepared to allow Mr. Bernabe to serve a sentence in the community. [ 29 ] Mr. Bernabe appears to have some personal issues and may have developed a substance abuse problem which I am satisfied should be addressed through some counselling under the direction of a probation officer. [ 30 ] I sentence Mr.

Bernabe to 30 days' jail to be served intermittently on three-day weekends. [ 31 ] Mr. Bernabe, you will be taken into custody now and you will serve the first day of your sentence today. [ 32 ] You are then to report in an entirely sober condition as directed by the Corrections Service at 8:00 p.m. each Friday commencing April the 12th, 2013, and you will continue serving your sentence in custody until 3:00 p.m.

Sunday, April the 15th, 2013, and thereafter on each consecutive weekend in the same manner until your sentence is completed. [ 33 ] While you are not serving this intermittent sentence, you will be bound by a probation order, the terms of which are the

statutory ones. [ 34 ] Upon the expiration of your intermittent sentence, you will be on probation for a period of nine months, during which time you will keep the peace and be of good behaviour and comply with the other statutory terms of probation. [ 35 ] You are to report to a probation officer at 275 East Cordova Street before 4:00 p.m. on the first business day next to the expiration of your intermittent sentence and thereafter as directed. [ 36 ] You are to take counselling as directed by your probation officer and you are to complete that counselling to the satisfaction of your probation officer. [ 37 ] You are to abstain absolutely from the possession or consumption of alcohol or illegal drugs as defined by the Controlled Drugs and Substances Act . [ 38 ] I note Mr.

Fleming's comment in his report that he was unable to ascertain what Mr. Bernabe did with his time. As part of his rehabilitation, a term of his probation order will be that he is to perform 75 hours of community service work to the satisfaction of his probation officer prior to the expiration of the first six months of this probation order. [ 39 ] Since Mr. Bernabe is not presently earning any income, I waive the imposition of the victim surcharge on the sentence. [ 40 ] Now Mr.

Tarnow, I did not ask you about the weekend, but I am assuming that picking this coming weekend and making it a three-day weekend is satisfactory to you and your client. Otherwise, I am perfectly happy to hear about that. [ 41 ] MR. TARNOW: As opposed to what, the subsequent -- [ 42 ] THE COURT: Well, I do not know. There may be some other three days during the week or maybe there is a two-day weekend or something that would work better, but I just arbitrarily picked this coming weekend as the first three -- [ 43 ] MR. TARNOW: No, that is fine. Let us get it going.

This weekend is -- [ 44 ] THE COURT: Oh, absolutely, I agree with you. [ 45 ] MR. TARNOW: Yes, yes. [ 46 ] THE COURT: The first three-day weekend. Are there any other comments on the probation terms? [ 47 ] MR. TARNOW: None from my side, Your Honour. [ 48 ] THE COURT: Mr. Porte? [ 49 ] MR. PORTE: No, Your Honour. [ 50 ] THE COURT: Thank you. Thank you very much, counsel. [ 51 ] MR. PORTE: Thank you, Your Honour. The Crown directs stays of proceedings on Counts 2 and 3 -- [ 52 ] THE COURT: All right. [ 53 ] MR. PORTE: -- on the Information. [REASONS FOR SENTENCE CONCLUDED]