R. v. MacMillan Date:, 2013 BCPC 7

Citation: R. v. MacMillan Date: 20130104 2013 BCPC 0007 File No: 223546-1-V Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RICHARD GRANT MACMILLAN EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. LOW Counsel for the Crown: L. Sarbit Counsel for the Defendant: M. Cheema Place of Hearing: Vancouver , B.C. Date of Judgment: January 4, 2013 [ 1 ] THE COURT: Twenty-seven-year-old Richard MacMillan has pled guilty to rioting on June the 15th, 2011.

[2] The Crown, on the basis of the circumstances of Mr. MacMillan's offending and his personal circumstances, takes the positionthat an appropriate sentence would be five to six months' jail served in the community, followed by a period of probation. [3] The defence submits on the same basis that a conditional discharge would be appropriate. Alternatively, the defence submitsthat a three-month jail sentence to be served in the community would properly address the principles of sentencing. [4] By consent, a video showing general scenes from the riot and Mr.

MacMillan's specific participation, plus various stillphotographs and maps were placed before me. A lengthy admission of facts was filed. I have received and read a pre-sentence report. Finally, the Crown provided a comprehensive brief of sentencing authorities. [5] The circumstances of Mr. MacMillan's participation in the riot are as follows: Mr. MacMillan watched the hockey game on alarge video monitor near the Canada Post building near Hamilton and Georgia Street, which is commonly called the "live site". Mr.

MacMillan watched the riot commence at the live site, and then moved with the crowd west along Georgia Street, and then upSeymour towards Dunsmuir Street. [6] Along the way, Mr. MacMillan witnessed numerous acts of vandalism, such as windows being broken and automobiles beingdestroyed. He did not participate in any of these events. Shortly before 9:00 p.m., Mr. MacMillan can be seen on a video recordingapproaching a Starbucks store at Seymour and Dunsmuir. He was carrying a trestle from a barricade.

He approached one of theStarbucks store's windows and struck it with the trestle. [7] Several passers-by remonstrated angrily with him about the damage that he was causing. Undeterred, Mr. MacMillan struckthe window again several times, smashing it. Several passers-by then intervened and shoved him to the sidewalk. Mr. MacMillan wasultimately let up, at which point one of the passers-by struck him in the face. Mr. MacMillan moved on and was not seen again on anyof the surveillance videos. [8] Sometime after June the 15th, Mr. MacMillan's employment counsellor reported to police that he had recognizedMr.

MacMillan's image in an online photograph of the riot. Mr. MacMillan was arrested on December the 6th, 2011, taken to the policedetachment, where he gave a statement admitting his complicity. [9] Mr. MacMillan, in his statement, told police that as he watched the riot, he realized that this was an opportunity for him todemonstrate his contempt for the greed of the Starbucks Corporation, and so he smashed the windows. [10] According to the Starbucks manager's victim impact statement, the store lost $1,100 in revenue and spent $8,000 repairing thewindow Mr.

MacMillan broke and one other window that some other individual smashed that night. The Crown is not seekingrestitution, due to Mr. MacMillan's limited ability to pay and the difficulty in apportioning his share of the damage. [11] Since February the 16th, 2012, when my colleague sentenced Brian Dickinson, 20 other individuals have been sentenced forparticipating in the same riot. Each of these decisions have described the riot and its considerable emotional and financial impact uponthe City of Vancouver, its citizens, and their property. I do not need to reiterate these descriptions.

I endorse them all and they apply tothe circumstances of the riot Mr. MacMillan participated in. [12] The Crown submits and I agree that sentencing Mr. MacMillan requires the consideration of four factors: 1. the context of the riot generally; 2. the need for general deterrence; 3. Mr. MacMillan's degree of participation in the riot; 4. Mr. MacMillan's personal circumstances. [13] Although Mr. MacMillan engaged in only one act of mischief during the riot, his acts were merely part of many criminal actscommitted by hundreds of individuals during the riot.

The criminal acts can be loosely grouped into three categories: looting, vandalism,and violent assaults against private citizens and emergency personnel such as firemen and police. [14] Scores of people were trapped in terrifying circumstances in their place of business or employment. Many people requiredtherapy and counselling to recover from their ordeal. [15] While Mr. MacMillan did not take

part in all of the offences committed during the riot, it is clear that he took advantage of theriot to carry out his own criminal act, and it is reasonable to infer that his actions may well have incited others to act in a similar way. [16] R. v.

Loewen (1992), (BC CA), 75 C.C.C. (3d) 184 (B.C.C.A.), dealing with a sentence appeal from the 1991Penticton riot, held that since rioting is such a serious threat to an orderly society, a sentence for rioting must be fashioned to ensure thata strong message of general deterrence is sent to the public generally. [17] However, Loewen also cautioned trial judges who are tasked with sentencing rioters, saying this is not a time for unwarrantedleniency nor, by the same token, for unwarranted severity.

Care must be taken at the same time to preserve the message of generaldeterrence. [18] According to the pre-sentence report, Mr. MacMillan had just turned 26, June 15, 2011. He has no criminal record. He hadsome unfortunate experiences growing up. His parents divorced when he was five years old. Mr. MacMillan, like many children in thatsituation, had difficulty adjusting to his parents' separation. Although his relationship with his parents is somewhat problematic today,both of them continue to be supportive of him. [19] At the age of nine, Mr.

MacMillan was diagnosed with attention deficit hyperactivity disorder. His resulting impulsivity and

aggressiveness was treated to some degree successfully with medication. However, in Grade 12, Mr. MacMillan spent time in a psychiatric hospital. He has been under the care of a psychiatrist at St. Paul's Hospital since 2010, and has been diagnosed with a depressive disorder. [ 20 ] Mr. MacMillan's mental health issues have been exacerbated by a persistent substance abuse problem which focuses on the intravenous use of various opiates. Mr. MacMillan is a bit of a loner and recently spent about six months living on the street, until he found a single occupancy room in a Downtown Eastside hotel.

He is unemployed and receives a disability pension due to his mental health issues. [ 21 ] He is receiving some counselling and therapy. Heather Bowden, his counsellor, advised the probation officer preparing his pre-sentence report that Mr. MacMillan keeps all of his appointments and is trying hard to move forward with his life. Although Mr. MacMillan is ambivalent about his substance abuse, he has, through Ms.

Bowden, secured a bed at the Maple Ridge Treatment Centre and intends to reside there and take advantage of their treatment programs. [ 22 ] The maximum sentence for rioting where the Crown proceeds under s. 65 of the Criminal Code is two years' jail. The Crown has placed before me all of my colleagues' sentencing decisions for participating in the June 15, 2011, riot. Two of these decisions are under appeal. [ 23 ] With the exception of Dickinson and Pateman , none of the offenders sentenced had a criminal record. With the exception of Cacnio , all of the sentences involved jail sentences. Ms.

Cacnio received a suspended sentence due to her exemplary background and limited specific participation in the riot; she stole a pair of pants. [ 24 ] The jail sentences ranged from 30 days in Alviar to seven months in Yates . Mr. Alviar damaged a window, incited others to rock a car, and all the while had four young teens in his care. Mr. Yates assaulted two different police officers, smashed windows, led a charge against police in riot gear, and brandished a weapon. [ 25 ] At the time Loewen was decided, the Criminal Code did not provide for conditional sentences.

In addition, since Loewen was decided, the Criminal Code was amended to include a direction to sentencing judges to consider all available sanctions other than imprisonment that are reasonable in the circumstances. [ 26 ] The Supreme Court of Canada in the seminal decision of Proulx instructed sentencing judges that a conditional sentence order with restrictive terms could answer the need for deterrence in any case where the other prerequisites for a conditional sentence order are met. [ 27 ] The defence has submitted that I should consider a conditional discharge.

While I agree a conditional discharge would be in Mr. MacMillan's best interests, since a criminal record for rioting will be a substantial burden for him in the coming years. However, the second requirement Mr. MacMillan must meet, according to Fallowfield , in order to be eligible for such a sentence is that a discharge would not be contrary to the public's interest. [ 28 ] Given the pressing need to deter and denounce rioting, I join my colleagues in Cacnio and Epp in finding that a discharge, except in the most unusual circumstances, would be contrary to the public interest.

While there are features unique to Mr. MacMillan's personal circumstances and the circumstances of his offending, there is nothing so unusual about them so as to warrant a discharge. [ 29 ] The aggravating circumstances of Mr. MacMillan's offending are as follows. Although it may have been a foolish and naïve notion, Mr. MacMillan, who on his own account was entirely sober at the time, decided to take advantage of the riot to send a political message to Starbucks, and accordingly damaged their property in a deliberate and wanton manner. Mr. MacMillan ignored the remonstrations of bystanders.

Moreover, he continued his vandalism until physically restrained. [ 30 ] Unlike the other individuals who have been sentenced for rioting on June the 15th, 2011, Mr. MacMillan did not act impulsively or get caught up in the moment. Rather, after watching the riot for about one hour, he deliberately chose to make use of the situation for his own misbegotten ends. Although fortunately no one was inside the Starbucks store when Mr. MacMillan smashed the window, he was reckless to that potential.

Apart from the emotional trauma occupants might have experienced, smashing the window caused glass to scatter throughout the customer area and could have easily seriously harmed anyone present. Mr. MacMillan did not turn himself in to police until others identified him as a participant. [ 31 ] Although it did not happen at the Starbucks, thanks to the efforts of bystanders, looting took place in many of the stores whose windows were damaged during the riot. Mr. MacMillan would have been aware of this potential due to his observations of the riot beforehand. [ 32 ] The mitigating factors are as follows. Mr.

MacMillan is a relatively young man and has good prospects for rehabilitation. He has pled guilty and saved the justice system considerable expense and trouble in prosecuting him. I also accept that he entered his plea to accept responsibility for his actions and to express his remorse. Once identified, Mr. MacMillan cooperated with the police and gave them a candid account of his actions June the 15th, 2011. [ 33 ] He has some unfortunate mental health issues that may have affected his good judgment at the time.

He is amenable to continuing treatment for his mental health and substance abuse issues, although I am concerned that he does not have very good insight into these issues as reported in his pre-sentence report. [ 34 ] The Crown, while seeking a jail sentence, is not opposed to him serving that sentence in the community. The Crown takes that position due primarily to Mr. MacMillan's somewhat limited participation and his mental health issues. [ 35 ] While I am satisfied that jail is the only fit sentence, I agree with the Crown and his counsel that Mr.

MacMillan can be allowed to serve his sentence in the community for the following reasons.

[ 36 ] He has not been found guilty of a personal injury offence. [ 37 ] There is no minimum sentence for the offence of rioting. He has no prior criminal record, which, given his mental health and substance abuse issues, is somewhat remarkable. This also indicates that this offence was out of character for him. He has made some reasonable arrangements to continue to deal with these issues.

I am satisfied that he is not likely to reoffend while serving this sentence. [ 38 ] If I were to simply impose an institutional jail sentence, I would have considered three months' jail an appropriate term to answer the need to generally deter and denounce Mr. MacMillan's conduct. However, a somewhat lengthier conditional sentence order with very restrictive terms will also answer that need and, further, will allow Mr.

MacMillan an opportunity to gain better insight into his mental health issues and substance abuse issues which, in the long run, will serve the community well. [ 39 ] The sentence on Count 1 will be six months' jail to be served in the community on the following terms: [ 40 ] I invoke the statutory terms applicable to a conditional sentence order and I summarize them as follows: He is to keep the peace and be of good behaviour. To be clear with you, Mr.

MacMillan, that means do not break the law, and not complying with my conditional sentence order is breaking the law. [ 41 ] You are to appear before the court when required to do so. [ 42 ] You are to report before 4:00 p.m. today, January the 4th, 2013, to a conditional sentence supervisor at 275 East Cordova Street and thereafter as directed. [ 43 ] You are not to leave the Province of British Columbia without order of the court or the written permission of your conditional sentence supervisor. [ 44 ] You are to keep your conditional sentence supervisor advised at all times of your address, occupation, and place of residence. [ 45 ] The additional terms are: [ 46 ] First, you are to abstain absolutely from the use of possession of alcohol or illegal drugs as defined in the Controlled Drugs and Substances Act . [ 47 ] Two, you are not to be found on the premises of any business whose primary purpose of business is the sale of alcohol. [ 48 ] Three, you are not to possess any of the paraphernalia commonly associated with the consumption of illegal drugs as defined in the Controlled Drugs and Substances Act . [ 49 ] Four, you are to take counselling as directed by your conditional sentence supervisor, and you are to complete that counselling to the satisfaction of your conditional sentence supervisor. [ 50 ] Five, you are to reside at a residence as directed by your conditional sentence supervisor.

If that residence is a residential treatment centre, such as the Maple Ridge Treatment Centre, you will comply with all of the rules of and regulations of that treatment centre and complete the programs offered by that treatment centre to the satisfaction of your conditional sentence supervisor. [ 51 ] Eight, you will not possess any weapons or any imitation of a weapon as defined in the Criminal Code . [ 52 ] Nine, you will not be found on the premises of any Starbucks store in the Province of British Columbia. [ 53 ] Ten, if directed by your conditional sentence supervisor, you will attend the Forensic Outpatient Clinic at 300, 307 West Broadway, Vancouver, B.C., or elsewhere for assessment, treatment and counselling; (

b) you will instruct any physician so treating you to advise your conditional sentence supervisor, on demand, the particulars of any diagnosis, prognosis, or course of treatment you are receiving; (

c) in the event you decide not to follow the course of treatment recommended by any physician so treating you, you will forthwith report to your conditional sentence supervisor and thereafter as directed. [ 54 ] The final terms of this conditional sentence order: During the first four months of this conditional sentence order you will not be found outside your place of residence between the hours of 8:00 p.m. and 8:00 a.m. the following day, except: (

a) in the company of the director or their delegate of any residential treatment centre in which you are residing; (

b) with the written permission of your conditional sentence supervisor for the purposes of complying with any term of this conditional sentence; (

c) while travelling to or from or attending at any place of employment or education, providing you have first obtained the written permission of your conditional sentence supervisor for the purposes of so attending; (

d) in the event of a genuine emergency. [ 55 ] For the remaining two months of this conditional sentence order, you will not be found outside your place of residence between 11:00 p.m. and 6:00 a.m. the following day, except: (

a) with the written permission of your conditional sentence supervisor for the purposes of complying with any terms of this conditional sentence; (

b) in the event of a genuine emergency.

[ 56 ] You will present yourself at the door of your residence on demand of your conditional sentence supervisor or any other peace officer to ensure you are complying with this curfew. [ 57 ] Upon the expiration, Mr.

MacMillan, of your conditional sentence order, you will be on probation for one year, during which time you will keep the peace and be of good behaviour, and comply with the other statutory conditions of probation. [ 58 ] Two, you will 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 conditional sentence order and thereafter as directed. [ 59 ] Three, you will take counselling as directed by your probation officer and you will complete that counselling to the satisfaction of your probation officer. [ 60 ] Four, you will not be found on the premises of any Starbucks store in the Province of British Columbia. [ 61 ] Five, you will not possess any weapons or any imitation of a weapon as defined in the Criminal Code . [ 62 ] Six, within the first six months of this probation order, you will complete 75 hours of community service work to the satisfaction of your probation officer. [ 63 ] I realize, Mr.

Clerk, I think I overlooked a term in the conditional sentence order, and that is you will not possess any weapon or any imitation of a weapon as defined in the Criminal Code . [ 64 ] I have taken into account Mr. MacMillan's limited financial situation and I waive the victim fine surcharge. [ 65 ] Do you have any comments on the terms or is there something I overlooked, Ms. Sarbit, that you were seeking in regards to the conditional sentence order? [ 66 ] MS. SARBIT: No, thank you, Your Honour. [ 67 ] THE COURT: Ms. Cheema? [ 68 ] MS.

CHEEMA: I do not, Your Honour, thank you. [ 69 ] THE COURT: Now, I take it you are staying Count 2, Ms. Sarbit? [ 70 ] MS. SARBIT: Yes. [ 71 ] THE COURT: Thank you. [ 72 ] Mr. MacMillan, please stand up. I want to make something abundantly clear to you. I have sentenced you to six months in jail.

I am giving you an opportunity to serve that sentence in the community and I am expecting that you are going to serve a fair amount of that time or spend a fair amount of that time in a residential treatment centre, where you can get some counselling and advice on how to deal with the various personal issues that you have quite properly put before me in this matter. [ 73 ] I do not want you leaving this building under any misapprehension.

If you do not comply with the terms of my sentence, you are going to be arrested, you will be back in front of me, not some other judge, and I assure you in advance, sir, that I will be entirely unsympathetic to your situation. I will endorse what the B.C. Court of Appeal has said in this province on many occasions; that people that violate conditional sentence orders should be dealt with severely. [ 74 ] In other words, the only option I will have will be to terminate your sentence and direct that you serve the balance of the sentence in an institution. Do you understand that?

Do you have any questions you want to ask me about your conditional sentence? [ 75 ] THE ACCUSED: No. [ 76 ] THE COURT: Good luck to you, sir. (REASONS CONCLUDED)