R. v. Turner Date:, 2013 BCPC 87

Citation: R. v. Turner Date: 20130319 2013 BCPC 0087 File No: 223556-1-V Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BRYDON ROBERT TURNER also known as BRYDON HARKER EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. LOW Counsel for the Crown: L. Sarbit Counsel for the Defendant: C. Wong Place of Hearing: Vancouver , B.C. Date of Judgment: March 19, 2013

[ 1 ] THE COURT: Twenty-year-old Brydon Robert Turner, also known as Brydon Harker, has pled guilty to participating in the Vancouver riot which occurred on June 15, 2011. [ 2 ] The Crown submits that the principles of sentencing would be properly addressed by sentencing Mr. Turner to one to three months' jail to be served intermittently in an institution. In addition, a period of probation is also required, during which Mr. Turner should take counselling for various issues and perform some community service work in order to complete his rehabilitation and pay back the community for the harm he has caused.

The Defence agrees that a jail sentence would be appropriate but submits that in Mr. Turner's circumstances, all the principles of sentencing would be properly addressed with a three- to six-month conditional sentence order. that [ 3 ] In addition to the submissions of counsel, I have received formal admissions of fact (entered as Exhibit 3), video clips and photographic stills of Mr.

Turner's participation in the riot (which were also entered as exhibits), victim impact statements from an employee of Budget Car Rental, a loss prevention officer employed by the Hudson's Bay Company and a store director for the Hudson's Bay Company, a pre-sentence report, Mr. Turner's letter of apology, and a variety of reference letters. [ 4 ] Counsel have provided me with a brief of sentencing authorities, a list of which is marked as Exhibit 7. I have considered all of these authorities but will only refer to some of them. [ 5 ] As my colleague pointed out in Dickinson , sentencing Mr.

Turner requires the consideration of four factors: (

a) the context of the riot generally, (

b) Mr. Turner's degree of participation in the riot; (

c) Mr. Turner's personal circumstances, (

d) the need for general deterrence and denunciation. [ 6 ] The context of the riot is described in Exhibit 3. Those descriptions are similar to those contained in the sentencing decisions of my colleagues which pertain to the June 15 riot. I invoke those descriptions, and it is not necessary to reiterate them in detail. It is sufficient to say that a huge crowd of mainly young adults, mostly males, presumably to express their disappointment over the hometown team's loss, looted and vandalized a great deal of public and private property in downtown Vancouver on June 15.

In their frenzy, the crowd of rioters physically and emotionally traumatized many private citizens. The crowd, many of whom had cheered the destruction being wrought, showed complete and utter contempt for the numerous police and other emergency personnel who, at considerable personal risk to themselves, attempted to quell the riot. Many police and emergency health personnel were assaulted as they carried out their duties during the riot. It is a considerable understatement to say that the video recordings of the riot are shocking. The total financial loss caused by the riot exceeded $3.7 million.

The riot received international attention, and the cost of the damage to the reputation of the City of Vancouver is incalculable. [ 7 ] Mr. Turner, who was 18 years old at the time, like tens of thousands of other citizens, attended at the live broadcast site near the Vancouver Public Library to watch the hockey game. As he watched the game, Mr. Turner, despite being under the age of 19, as required by the Liquor Control and Licensing Act , consumed a mickey of whiskey he had brought and then ingested other alcohol and marihuana being passed around in the crowd. Mr.

Turner's activities during the riot were recorded by various photographers, and Mr. Turner acknowledged much of this activity in his subsequent statement to police. [ 8 ] When the game ended, Mr. Turner joined in the riot. In the vicinity of Homer and Georgia Street, he was part of an enormous crowd and can be seen in videos cheering on the riotous behaviour of others. Although he did not start them, Mr. Turner, along with a friend, took particular interest in a fire consuming plastic garbage bins and, later, another fire in the middle of the street. [ 9 ] Mr.

Turner was near the front of a huge crowd, members of which were shouting taunts as they hurled numerous items at a police line which was preventing the crowd from travelling north on Homer Street. A video photographer behind the police line recorded the barrage of objects directed at those police officers who were obliged to duck and weave to avoid being struck. [ 10 ] While there is no indication Mr. Turner threw anything, he was near the front of the line and presumably was aware of the police presence and the crowd's attitude toward them.

The police line ultimately drove the crowd south out of Homer Street, and the crowd then moved west on Georgia Street. A Budget Rent a Car office near Georgia and Homer had attracted the unwelcome attention of the crowd as early as 5:30 p.m. that night. Some of the crowd had climbed over Budget's locked fences surrounding their compound and had gotten up on the roof of Budget's building, endangering themselves and emergency personnel who were obliged to intervene to remove them. [ 11 ] At the end of the hockey game when the riot commenced, the crowd attacked the Budget building, smashing many of its windows.

A video recorded that despite the efforts of a Good Samaritan, a man from the crowd struck repeated blows to one of the windows, severely damaging it. A video photographer recorded Mr. Turner following suit, as the Good Samaritan stood by, by running up to the window and kicking it hard three times in an effort to finish its destruction. Passersby denounced his actions, and Mr. Turner desisted. [ 12 ] Unknown to Mr. Turner, a Budget employee, Mr. Paul was inside the building at this time.

He had remained on-site in a desperate effort to prevent damage to the property and, ironically, to ensure members of the crowd did not hurt themselves by clambering onto the roof of the building. Indeed, Mr. Paul called for an ambulance to assist someone who had broken their ankle climbing over a fence into the Budget car lot. When the crowd started destroying the Budget building's windows, Mr. Paul, fearful for his life, gave up and fled the area. [ 13 ] Mr.

Turner moved on from the Budget building and was next recorded by video photographers outside the Hudson's Bay store engaged with others in methodically overturning and destroying an unmarked transit police car. Initially, the group was unsuccessful and abandoned the attempt. However, Mr. Turner resumed the attempt, encouraging his friend and others to assist him, and ultimately, the car was rolled over.

While this group was so engaged, countless others smashed the nearby windows of the Hudson's Bay store and engaged in other calamitous criminal conduct around and inside the store, terrifying passersby plus shoppers and employees trapped in the store. Later, the car was set ablaze and completely destroyed. [ 14 ] There is no indication Mr. Turner took

part in the vandalism of the Hudson's Bay store or in burning the car, but those activities

were part of the context surrounding his specific acts. [ 15 ] In addition to victim impact statements from the police and others, I was provided with the harrowing victim impact statements of Mr. Paul and Hudson's Bay store loss prevention officer Duncan McLellan. Their statements recorded the terrible ordeals they suffered as they attempted to protect their employers' property and fellow citizens from the fury of the mob. [ 16 ] Mr. Turner did not, as he later told the police, leave the riot and go home around 9:30 p.m.

Rather, he returned to his own neighbourhood and around midnight was recorded by surveillance video cavorting at a McDonald's with others showing off loot from the riot. [ 17 ] Mr. Turner learned on June 16 that images of his participation were on the Internet. According to Mr. Turner and the members of his family who wrote reference letters for him, Mr. Turner, who by now had sobered up, was devastated that he had engaged in the riot and proceeded the next day to report his involvement to police.

He gave a statement that day, but it was not recorded properly, and when he was invited to return two days later and repeat his statement, Mr. Turner did so. [ 18 ] As noted above, Mr. Turner's initial account of his participation in the riot was not entirely fulsome. While he told police he had heard there were images of him overturning a car, he assured them he was not involved. However, Mr. Turner's counsel told me that upon seeing the videos recording his involvement, he readily accepted his role. Mr.

Turner believes he did not initially recall the full extent of his participation due to his drunkenness during the riot. [ 19 ] According to the pre-sentence report, although Mr. Turner enjoyed a stable home life, he was raised by his mother and his stepfather. He did well in school and had just graduated from high school on June 15. He had part-time employment with the Keg but due to his participation in the riot was fired. However, with the help of his grandfather, he has subsequently found employment in the metal fabrication business, and according to letters from his employers, is doing well.

Despite his success in this field, his long-term plans are to become a writer. [ 20 ] Due to some childhood physical features, he developed some insecurities which resulted in his acting out to obtain peer approval. He has not seen his natural father for several years, and due to his stepfather being currently imprisoned in the United States, Mr. Turner, despite his young age, has attempted to assume his stepfather's role as head of the household. His stepfather's legal problems have caused Mr. Turner's family considerable financial problems, including being forced to sell the family home. Mr.

Turner's family and other persons who wrote the reference letters felt that unresolved issues arising from these matters may have contributed to Mr. Turner's participation in the riot. Otherwise, all those who wrote reference letters claimed that Mr. Turner's involvement in the riot was completely out of character. [ 21 ] Although Mr. Turner's pre-sentence report is generally favourable, it appears that Mr. Turner has developed a substance abuse problem. He began using alcohol and a variety of illegal drugs at a fairly young age.

He has been abstaining in compliance with his bail terms but told the probation officer that as soon as those terms were behind him, he intended to resume his use of alcohol and marihuana. [ 22 ] In addition to the fact that using marihuana is illegal, since the use of these substances presumably contributed to his involvement in the riot, it appears to me that Mr. Turner also lacks some insight into the problems associated with his use of these substances. [ 23 ] The maximum sentence for rioting where the Crown proceeds under s. 65 of the Criminal Code is two years' jail. [ 24 ] The B.C.

Court of Appeal handed down its decision this morning on two appeals for sentences imposed upon two individuals for their participation in the June 15, 2011 riot, namely, R. v. Peepre , 2013 BCCA 115 , and R. v. Williams , 2013 BCCA 116 .

Both decisions upheld the view of Loewen that general deterrence and denunciation were of particular concern when sentencing an individual for participation in a riot but that concern must be balanced against the other fundamental principle of sentencing, rehabilitation. [ 25 ] In Williams , the court approved my colleague's discussion of the ratio of Loewen and how it should be applied today in the context of the seminal Supreme Court of Canada decisions Proulx and Gladue .

In Peepre , the court provided at paragraph 30 some direction concerning when a conditional sentence order might be appropriate. [ 26 ] The authorities before me include 18 of my colleague's sentences imposed to date for offences arising from the June 15, 2011, riot. With the exception of Mr. Dickinson, none of the other 17 offenders had a criminal record. All of the offenders received jail sentences to be served either in an institution, intermittently, or in the community.

Apart from the individual offender's personal circumstances, the range of jail sentences for those without a criminal record reflected their degree of participation in the riot. The sentences range from 30 days' jail to be served in an institution, as in Alviar , or intermittently, as in Wernicke . [ 27 ] Mr. Alviar, while he was supervising four young teens, damaged a window and incited others to rock a car. Mr. Wernicke joined others in destroying two police cars parked on Cambie Street. [ 28 ] The highest sentence, seven months' jail, was imposed upon Mr.

Yates, who assaulted two different police officers, smashed windows, led a charge against a police line, and brandished a weapon. [ 29 ] It is difficult to reconcile all the different sentences imposed for offences arising from the Vancouver riot. This, of course, is a reflection of the disparate circumstances of the individual offenders and the circumstances of their offending. My colleague, Judge Dhillon, at paragraph 36 and 37 of Chou , provides a useful

summary of these authorities, showing the range of sentence for those sentenced at the higher and lower ends of the spectrum of offending. [ 30 ] Sections 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. Committing specific criminal acts may aggravate an individual's participation in a riot. [ 31 ] In Mr. Turner's case, there are a number of aggravating factors. Although it is not clear how long Mr. Turner participated in the riot, he did so for a sustained period of time. In addition to milling about and inciting others to riot, he engaged in the wanton destruction of both public and private property and encouraged others to assist him.

He ignored the commands of police and calls from private citizens to desist or leave their property alone. He was completely reckless for the safety of others. [ 32 ] There are also mitigating factors. Mr. Turner had just passed the age of 18 at the time of the riot. He does not have a criminal record. Mr. Turner generally accepted responsibility from the outset for his conduct and was cooperative with police. Although when first speaking to police, Mr. Turner disavowed rolling the car, I accept he genuinely believed at the time he was not involved in this incident.

I also accept that when later shown video evidence to the contrary, he immediately accepted his involvement. Mr. Turner pled guilty at the first reasonable opportunity in order to accept responsibility and to express his remorse about his actions. [ 33 ] Mr. Turner is genuinely remorseful for his conduct. His detailed letter of apology filed with the court and his statement to the court expressed considerable insight into the seriousness of his conduct and its grave impact upon his community. Mr.

Turner acknowledges that he was a very immature young man on June 15 but has since gained a new respect for his fellow citizens and his obligations to them as a member of their community. Mr. Turner, in addition to obtaining meaningful employment since the riot, has taken steps to volunteer in his community in an attempt to make restitution for his behaviour. I am satisfied that Mr. Turner has turned a significant corner in his life and there is no need to consider specific deterrence in sentencing him. He is well on the way to being rehabilitated. [ 34 ] In addition to any sentence I impose, Mr.

Turner has been the subject of considerable public opprobrium. Images of his riotous behaviour are a fixture on various Internet sites. He has received death threats. Former friends and associates have shunned him. 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. [ 35 ] There is no issue that in order to answer the need for general deterrence and to denounce Mr. Turner's conduct and rioting generally, that the only fit sentence for Mr. Turner 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. [ 36 ] I have considered some of the other sentences imposed upon offenders who were 18 years old on June 15 and did not have criminal records. Mr. Burkett received a three-month conditional sentence order for assisting in the destruction of two cars. His antecedents bear some similarity to Mr. Turner's in that Mr. Burkett had some significant personal issues as a teenager and has remained distressed by his actions on June 15. Unlike Mr. Turner, Mr. Burkett's participation was relatively brief.

He was at all times a follower, and Mr. Burkett did not lead others in vandalism. [ 37 ] Mr. Dorosh was sentenced to four months in prison for burning a car, but that was a reflection of a finding by Judge Kitchen, with which I agree, that arson is a singularly dangerous and aggravated criminal activity to engage in. [ 38 ] In addition to generally engaging with the mob, Mr. Johansen committed various acts of vandalism, including overturning a police car. Like Mr. Turner, Mr. Johansen's actions were persistent and deliberate, plus he eschewed opportunities to leave the area. Unlike Mr. Turner, Mr.

Johansen did not turn himself in to police and was arrested some months later. On the other hand, while Mr. Johansen's actions may have encouraged others to engage in vandalism, Mr. Turner went further and specifically led the second successful attempt to roll the police car over. [ 39 ] I have concluded that Mr. Turner's actions during the riot were somewhat more aggravated than Mr. Johansen's. Mr. Johansen received a 30-day jail sentence to be served intermittently.

Further, Judge MacLean was of a view that a conditional sentence would not properly address the sentencing principles of general deterrence and denunciation. Judge MacLean did not impose any probationary terms. [ 40 ] The sentence imposed upon Mr. Johansen was at the low end of the range of sentence suggested by the Crown for Mr. Turner. Despite the somewhat more aggravated circumstances of Mr. Turner's offending, I take into account his high degree of remorse and acceptance of responsibility from the outset. I also take into account Mr.

Turner's commitment to, in the future, be a much more responsible citizen, which has been demonstrated by his efforts of the last 21 months. [ 41 ] I have also determined that it will be necessary to place Mr. Turner on probation to assist him in dealing with the substance abuse and other personal issues. As a result, he will not be able to put this matter behind him as quickly as Mr. Johansen. [ 42 ] I have therefore concluded that a fit sentence of 30 days' jail served intermittently on three-day weekends would also be appropriate for Mr. Turner. Mr.

Turner committed multiple specific offences and incited others to assist him in rolling over an automobile. Bearing in mind paragraph 30 of Peepre , I am not satisfied that allowing Mr. Turner to serve his sentence in the community would adequately address the sentencing principles of general deterrence and denunciation. [ 43 ] Mr. Turner, you will be taken into custody now, and you will serve the first day of your sentence today.

You are then to report in an entirely sober condition as directed by the Correction Service at 8 p.m. each Friday, commencing March 22, 2013, and you will continue serving your sentence in custody until 3 p.m., Sunday, March 24, 2013, and on each consecutive weekend thereafter in the same manner until your sentence is completed. [ 44 ] While you are not in custody serving this sentence, you will be bound by a probation order, the terms of which are the statutory ones. [ 45 ] Upon the expiration of your intermittent sentence, Mr.

Turner, you will be on probation for a period of six months, during which time you will keep the peace and be of good behaviour and comply with the statutory terms of probation.

[ 46 ] You are to report to a probation officer at 275 East Cordova Street before 4 p.m. on the first business day next to the expiration of your intermittent sentence and thereafter as directed. [ 47 ] You are to take counselling as directed by your probation officer and complete that counselling to the satisfaction of your probation officer. [ 48 ] You are to abstain absolutely from the possession or consumption of alcohol or illegal drugs as defined by the Controlled Drugs and Substances Act . [ 49 ] Although Mr.

Turner is gainfully employed, I understand that he is contributing to the support of his extended family, which is in some need, and therefore I waive the victim surcharge on the sentence. [ 50 ] Are there any other terms that the Crown seeks for the probation order? [ 51 ] MS. SARBIT: Crown has submitted community work service hours may be appropriate. [ 52 ] THE COURT: I have considered that, and I am not -- [ 53 ] MS. SARBIT: Thank you. [ 54 ] THE COURT: -- imposing that, Ms. Sarbit. [ 55 ] MS. SARBIT: No further conditions. [ 56 ] THE COURT: Thank you for reminding me. [ 57 ] Ms.

Wong, is there -- and I appreciate that -- I specified the weekends when Mr. Turner will serve this intermittent sentence, and I took that from what you advised me about his work schedule, or what he advised me, so I take it that that is still appropriate. In other words, he will be able to get off work on Friday in time to go to the Correction Service institute by 8 p.m. [ 58 ] THE ACCUSED: That's correct, Your Honour. [ 59 ] THE COURT: And then you will be released on Sunday at 3 p.m., so then you will be able to get home and get prepared to go to work the next day. [ 60 ] Please stand up, Mr.

Turner. [ 61 ] THE ACCUSED: Oh, I'm sorry. [ 62 ] THE COURT: I want to tell you a couple of things. First of all, I am allowing you to serve this sentence on an intermittent basis on the weekends. All right? It is absolutely critical that you arrive there on time. If I were you, I would show up a little early to be on the safe side. [ 63 ] THE ACCUSED: Of course. [ 64 ] THE COURT: Being late or not showing up because you forgot or something generates being arrested and prosecuted for an offence called being unlawfully at large.

It is the same thing as if you climbed over the prison wall and ran away, and it is viewed in a very serious way and, generally speaking, results in you serving a longer sentence, usually not on an intermittent basis. So be very careful. That is what I want to say to you about that so that you do not get into trouble over that. [ 65 ] THE ACCUSED: All right.

Thank you, Your Honour. [ 66 ] THE COURT: I want to remind you as well, sir, I appreciate that there is much public debate about the subject, but the use of marihuana is still illegal in this country, and while you are on probation, one of the statutory terms is that you keep the peace and be of good behaviour, which means do not break the law.

Using marihuana is breaking the law, and if you do not comply strictly with the terms of that probation order, sir, in all likelihood, you will be arrested, charged with breach of probation, and again, you will be looking at a further sentence, probably of imprisonment given all of the circumstances. All right?

So I am just telling you these things so that you are very careful to comply with these terms. [ 67 ] THE ACCUSED: Understood, Your Honour. [ 68 ] THE COURT: If something comes up and you do not understand what you should be doing in a particular context, the best thing for you to do would be to get a hold of your probation officer, get a hold of Ms. Wong, or failing all else, come back to court. Do not go unilaterally making decisions which could get you into trouble. Nobody wants to see you in any more trouble. Okay? [ 69 ] THE ACCUSED: Understood, Your Honour.

Thank you. [ 70 ] THE COURT: Good luck to you, sir. Now, you are going to have to go with the sheriff. And just for his family that is here, I imagine he will be released in about an hour or so, and then he will have served his first day. [ 71 ] MS. WONG: Will he not be taken to North Fraser today? [ 72 ] MR. SHERIFF: That's correct, Your Honour. [ 73 ] THE COURT: He will be taken out to North -- oh, I see. I thought perhaps the Corrections officials here would direct him as to

where he is going to report. [ 74 ] MR. SHERIFF: No, he -- [ 75 ] THE COURT: When will he be leaving here to go to North Fraser? [ 76 ] MR. SHERIFF: Maybe around 4 o'clock. [ 77 ] THE COURT: All right. So his family should report to North Fraser about what time, do you think? [ 78 ] MR. SHERIFF: I would say 6:30, 7. [ 79 ] THE COURT: All right. Are you able to tell his family where -- [ 80 ] MS. WONG: Yes, I can -- [ 81 ] THE COURT: -- North Fraser is -- [ 82 ] MS. WONG: -- I can direct -- yes. [ 83 ] THE COURT: -- so that they can go and pick him up? [ 84 ] MS. WONG: Yes. [ 85 ] THE COURT: All right. [ 86 ] MS.

SARBIT: The Crown directs a stay of proceedings on Counts 2 and 3. [ 87 ] THE COURT: All right. Thank you very much. Thank you, Counsel, for your professional assistance with this difficult matter. (REASONS CONCLUDED)