R. v. Patillo Date:, 2012 BCPC 299

Citation: R. v. Patillo Date: 20120824 2012 BCPC 0299 File No: 223557-1-V Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LUKE DOUGLAS GEORGE PATILLO REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. L. BAGNALL Counsel for the Crown: Daniel J. Porte Counsel for the Defendant: G. Jack Harris, Q.C. Place of Hearing: Vancouver , B.C. Date of Hearing: August 14, 2012 Date of Judgment: August 24, 2012 [ 1 ] On June 29, 2012, Luke Patillo entered a plea of guilty to a charge of taking

part in a riot, contrary to

section 65 of the Criminal

Code . This is an indictable offence with a maximum sentence of incarceration for two years. The events which gave rise to this charge occurred on June 15, 2011. [ 2 ] The Crown takes the position that Mr. Patillo should be incarcerated for four to six months. The Crown opposes the imposition of a Conditional Sentence Order, but, should the Court determine that a sentence of 90 days or less is the appropriate sentence, does not oppose an order that such sentence be served intermittently. [ 3 ] Counsel for the offender submits that the Court should order that Mr.

Patillo serve his sentence in the community by way of a Conditional Sentence Order or that the Court should impose an intermittent sentence. On behalf of Mr. Patillo, Mr. Harris urges the Court to “be innovative” in this sentencing proceeding. The Circumstances of the Offender [ 4 ] Mr. Patillo is now 21 years of age. He was 20 years old at the time of the offence. He is the thirteenth in a family of fourteen children. His family is close and supportive, and he has earned wide support in his community as well. Letters indicative of that support were filed on sentencing (Exhibit 5). Mr.

Patillo is described as caring, compassionate, patient, thoughtful, responsible, mature, and a “pillar of strength” for his family. [ 5 ] A family friend wrote that, “The riots were one bad day in the life of an extremely good man” (Exhibit 5, Tab 8). [ 6 ] In 2004, Mr. Patillo’s next older brother suffered an accident which left him with a significant loss of motor skills. He is unable to walk or to speak. Mr. Patillo has been his brother’s main support since the death of his father in 2010. These two tragic events have had an enormous impact on the entire family, particularly on the offender.

In his description of his life so far which was filed during sentencing proceedings (Exhibit 5, Tab 2), Mr. Patillo wrote this about his father’s passing, His last words to me were to take care of my brother Grant and my mom, and I promised I would. My father’s death left me lost and confused. Not knowing how to deal with the new responsibilities on me, I ran from them. I started hanging out with a different group of friends and got into the party scene. Drinking and going to the bars was my new reality; one in which I could escape from the difficulties at home and the new pain of not having my father in my life.

This is how I became caught up in the Stanley Cup Riot on June 15, 2011. Later that same summer I went to work at a camp for under-privileged children outside Edmonton, Alberta. My encounters with these kids who were filled with pain that came from living in foster homes and group homes, whose parents battled all types of substance abuse made me truly realize the error of my ways and that things in my life had to change. It was at this moment that I came to see the great harm I had done the night of the riots and I knew I had to make right what I had put wrong. [ 7 ] Mr.

Patillo provided the Court with a written apology (Exhibit 5, Tab 1). Among other things, he wrote, My dreams for my future, once endlessly full of exciting adventures and ambitious goals, are now limited by my own foolishness. I know this is deserved. I have learned that sometimes the actions of one night can impact a life permanently. My actions caused a terrible amount of damage to the city, the extent of which I could never repay. I contributed to the terror of other citizens, as well as to the frenzied behaviour of my fellow rioters.

I have no explanation to offer as to why I acted as I did, only to confess that I made a grave error in judgment that I would give anything to take back. What I did cannot be undone, and I wish to offer my deepest regret and sincerest apology to the citizens of Vancouver. [ 8 ] He also wrote, For me personally, the fallout from my actions in the riots has brought deep shame and regret, but also great growth. I am ready to accept whatever penalty is decided upon, and I am determined to continue to grow into a respectful – and respectable – member of society.

I will always regret that I went downtown that night; regret the havoc I wrecked, and the fear I instilled. I do hope to one day put the shame behind me, but please know that I have and will continue to learn from this grievous mistake. [ 9 ] A Pre-Sentence Report was prepared respecting Mr. Patillo (Exhibit 8) and it has been filed on sentencing.

The Report confirms his positive education and work history, the change in his focus since the events of last summer, and his enrolment at Douglas College in second year courses in September, 2012 (also Exhibit 9). [ 10 ] I accept that his involvement in the riot was aberrant behaviour for Mr. Patillo. I accept that he has not engaged in this kind of behaviour in the past and will not do so in the future. I am satisfied that Mr.

Patillo's conduct on June 15, 2011 was completely out of character and was the behaviour of a young man who had temporarily lost his moral compass in the aftermath of the death of his father. The Context of the Riot [ 11 ] The events of June 15, 2011, are familiar to residents of the Lower Mainland. About 55,000 people watched the seventh game of the Stanley Cup playoffs on a large screen located on West Georgia Street at Hamilton Street. As the game ended, some members of the crowd had begun to damage property, including two vehicles parked on West Georgia Street, about a block west of the screen.

Those vehicles were overturned and set on fire in spite of efforts by police and fire fighters to protect the vehicles. [ 12 ] The riot grew in intensity and was not finished until the early hours of June 16, 2011. During those hours, there were 928 police officers deployed in the core of Vancouver, including 606 Vancouver Police officers, and 322 members of the RCMP from other Lower Mainland communities who were called in to assist. There were 63 members of the Vancouver Fire and Rescue Services deployed. [ 13 ] There were originally 44 members of the BC Ambulance Services in the downtown core.

Because of the extreme danger to those members, all but six Ambulance Services personnel were relocated to St. Paul’s Hospital at about 8:15 pm. Those six members dealt with over 100 patients during the riot. The emergency room at St. Paul’s Hospital dealt with 150 patients and an additional 100

patients were treated for exposure to tear gas and pepper spray at a special decontamination centre set up adjacent to the hospital. [ 14 ] There were more calls to the 911 line in the 4 hours following the end of the hockey game than there have been during any 24 hour period in the past.

At one point there were 92 calls for ambulance assistance on hold waiting to be answered. [ 15 ] Not only were those with problems resulting from the riot waiting for help, but clearly police, fire fighters, and ambulance personnel could not assist anyone else in the city, and likely in other communities, who had a problem not related to the riot. [ 16 ] Shops large and small were broken into, looted and destroyed. Employees in some of the shops were trapped inside, unable to leave because of the danger inherent in the riot occurring in the streets.

There were 112 businesses damaged and 122 vehicles damaged or destroyed. The total estimated monetary loss resulting from the riot is close to $4,000,000.00. This figure is very conservative because it does not include estimated losses from 85 riot events, approximately one third of the total. [ 17 ] These statistics tell only part of the story and a sanitized part of the story at that. It is apparent from a viewing of the video recordings of Mr.

Patillo’s involvement in the riot (Exhibit 2) that the crowds were ferocious, that the rioters were intent on destruction for the sake of destruction, that the damage was unimaginable in extent, and that those involved were apparently thoroughly enjoying themselves. It is this last fact that makes the rest so frightening. The actions of the rioters were such that it is extraordinary that no one was disabled or killed.

The Circumstances of the Offence [ 18 ] As I have indicated, the riot began within minutes of the end of the game, with the crowd in the 300 block of West Georgia Street, just west of the screen, overturning and lighting on fire two vehicles parked in that block. Mr. Patillo’s participation in the riot lasted from shortly after it commenced until approximately 11 pm, when he made his way home. He had been consuming alcohol before the game and continued to drink alcohol during the game. He described himself as intoxicated, and I accept that he was affected by the alcohol he had consumed. Watching Mr.

Patillo’s actions (Exhibit 2), one would not conclude that he was intoxicated to any great degree. [ 19 ] A photograph included in the book of materials filed by the Crown (Exhibit 1, Tab 14) shows Mr. Patillo, along with others, standing on an overturned portable toilet. This participation of the offender is also captured in Exhibit 2, item 4b. While Mr. Patillo was standing on the portable toilet, the police were announcing with loudspeakers that the assembly had been declared unlawful and the crowd were ordered to disperse. Mr. Patillo was one of the thousands who did not obey that order.

His friends went home, but he did not. [ 20 ] Mr. Patillo made his way west along West Georgia Street and slightly north on Richards Street to the location of the Blenz coffee shop and the Black and Lee Tuxedo Rental store. The windows to those premises were broken by the crowd at approximately 8:35 pm. At 9:10 pm Mr. Patillo walked up to the Black and Lee store and looked inside, then backed up, covered his face with his hockey jersey, and entered the store through one of those broken windows (Exhibit 2, item 7a). He came out of the store just a few seconds later.

He stole a pair of pants, which he threw onto a burning car. [ 21 ] He then went into a street level parkade north of Black and Lee and across the street on Richards Street, the Parkwell Plaza Parkade. Along with about 12 other people, Mr. Patillo attempted to overturn a blue Hummer H2 which was parked in the lot. Dozens of other people were in the parkade, watching the attacks on the vehicles parked there and taking photographs. The effort to overturn the Hummer was unsuccessful, but the vehicle was ultimately destroyed. As the group turned its attention elsewhere, Mr.

Patillo looked into and then reached into the broken windows of the vehicle and removed something, which he tossed into the crowd (Exhibit 2, items 9a through 9e). [ 22 ] Next Mr. Patillo went into the 600 block of Seymour Street and assisted others as they attempted to overturn a BMW vehicle which was parked on the street adjacent to The Bay department store. The car was not overturned, but it was set on fire and ultimately completely destroyed (Exhibit 1, Tab 17). As the fire was gaining in strength, Mr.

Patillo posed in front of the vehicle, smiling and making a triumphant gesture, while others took his photograph (Exhibit 2, item 10b). [ 23 ] At 10:18 pm Mr. Patillo was at the London Drugs store at West Georgia Street and Granville Street. Along with dozens of other people, he went into the store and stole some small items. Like many, but not all, of the looters, Mr. Patillo covered his face and head before he went into the store (Exhibit 2, items 11a and 11c). The Impact of the Riot on Individual Victims [ 24 ] Included in Exhibit 1, the Crown Book of Documents, are numerous Victim Impact Statements.

Included in Exhibit 2, the DVD, are recordings of Mr. Patillo’s involvement, and also of the calls to 911 made by one of the employees of London Drugs who was trapped in the store by the riot. These materials provide a vivid account of what was experienced by those who were in the area but not participating in the riot. I have considered all of the Statements, but for the purposes of these Reasons, I will refer to only three of the Victim Impact Statements. [ 25 ] First, there is the Statement of the owner of the blue Hummer H2 (Exhibit 1, Tab 15).

He and his young daughter were visiting friends in Vancouver and watched the game at their home. As the riot moved into the Parkwell Plaza Parkade, this gentleman was able to watch the attack on his vehicle from his friends’ apartment. He wrote, For hours we watched in horror as multiple buildings were being vandalized and looted and vehicles trashed and set on fire. We watched as the black Hummer H2 that was parked just down the street from ours was lit up. We watched, unbelievably, from 26 floors up, as the rioters kicked, beat, trashed, smashed and tried to flip our Hummer.

We saw rioters looting through our vehicle, stealing our property and leaving the rest of it strewn everywhere around our vehicle.

[ 26 ] For this gentleman, the loss of property, the inconvenience resulting from the loss of the use of his vehicle, having to alter his family’s summer plans to adjust to this loss, and the obvious financial consequences, were not the greatest effects of the actions of the rioters.

His sense of violation, his recollection of the fear he felt for his daughter, himself, and the rest of his family watching the events at home, and his upset at the “absurdity” of the behaviour of the rioters were the greatest effects. [ 27 ] The owner of the BMW parked in the 600 block of Seymour Street wrote a Victim Impact Statement (Exhibit 1, Tab 16), in which she described the impact that the riot had on her. There will be an enormous financial cost for this young woman, whose insurance will not cover the damage to her vehicle.

She said this about the personal cost, Since the riots, it has been overwhelming to account for all of the ways in which I was affected because all aspects of my life have been disturbed. Mentally, I have been hit the worst. For days following the event I did not leave the confines of my 560 square feet apartment. My state of mind was so overwhelmed that it skipped anxious and went straight into depression. During those days I could not bring myself to leave my bed or stomach any food. My complete thought process has been dissected, scrambled and forced back into my head.

I now lack focus and have acquired short term memory loss since my circumstance has done nothing but worsen and I haven’t had the time to re-balance myself. With the lack of focus and my mind now racing, my sleep has been hugely affected. I can only sleep for three to four hours at a time, in turn, feeding my stress level. My anxiety has worsened to the point where I now take emergency panic attack medication. [ 28 ] This is all the result of the financial loss flowing from the rioters’ destruction of her vehicle.

This young woman simply cannot solve the problem created for her by the rioters and her health is suffering as a result. [ 29 ] The London Drugs store at West Georgia Street and Granville Street was closed earlier than planned on the night of the riot because of the unrest outside. When the crowd broke the windows of the store and then breached the steel security gate, there were about 25 staff members still in the store. These people took refuge in a windowless room in the basement of the store, in which there were closed circuit televisions showing the store.

The people in that room had seen a tree located on the street just outside the store set on fire. They saw the crowds of looters come into the store. They rightly feared both the potential for a fire to be set in the store and that they could be discovered and attacked by the mob. It was an absolutely terrifying experience to be trapped in that basement and so helpless. It is painful and difficult just to listen to the calls made to 911 (Exhibit 2, items 2a through 2c) by one of those persons, a loss prevention officer.

At one point in his calls to 911, this courageous man described hearing the efforts of the looters to get into the room where all of the staff were hiding from the rioters. There was no help on the way because all of the available police officers were occupied on the streets of the city.

The last of the three calls made from that room ended with the dispatcher impressing on the caller that it was his responsibility to keep the other employees safe and wishing him “good luck.” [ 30 ] In his Victim Impact Statement (Exhibit 1, Tab 9), this man said, Overall, I felt my concern was mostly for other staff members of the store and my own family who was worried at home about me, especially my pregnant wife. At the time of the break-in, I felt very helpless as I wish there was more that I could have done to prevent what occurred.

Watching people loot the store on the CCTV monitors was very difficult given the nature of my work. I felt the need to go up and stop what was happening somehow. I felt that my workplace was violated as many of the individuals that came into the store were there simply to cause physical damage to the store. As the lead investigator for this incident, I re-live the incident every single day at my workplace. [ 31 ] I will not refer specifically to the other Victim Impact Statements. I have chosen to refer to these particular Statements because of Mr. Patillo’s direct involvement in these three riot events.

He was one of those who tried to overturn the blue Hummer H2 and who took items from that vehicle. He was one of those who tried to overturn the BMW and who encouraged the complete destruction of that vehicle, going so far as to pose in front of the vehicle as it was beginning to burn. He was one of the dozens of people who streamed into the London Drugs store, causing those trapped and hiding in the basement to reasonably fear for their lives. The Offender’s Contact with the Police [ 32 ] On September 21, 2011, an image of Mr.

Patillo taken during the riot was posted on the Vancouver Police Department Riot website. As a result of a tip received by the VPD as to his identity, Mr. Patillo was contacted. He attended the detachment on October 25, 2011, and confessed his involvement in the riot to the police. Mr. Patillo has always intended to plead guilty respecting the charges laid against him, which I view as an indication of his complete acceptance of responsibility for what he did that was wrong.

The Issue [ 33 ] Because of his youth, his very positive antecedents and his bright future, because of his lack of criminal record and the conclusion I have reached that his behaviour was aberrant, that he is already deterred from such conduct in the future, and is effectively rehabilitated, the question here might best be framed as follows: is it necessary to incarcerate Mr. Patillo or could another sentence adequately address all of the principles of sentencing? The Statutory Framework [ 34 ]

Section 718 of the Criminal Code reads as follows: The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct;

(

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 35 ] Other sections of the Code relating to sentencing direct me to consider that any sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender” (section 718.1), that a sentence should be “similar to sentences imposed on similar offenders for similar offences committed in similar circumstances” (section 718.2 (b)), and that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances” (section 718.2 (d)).

The Common Law [ 36 ] I have read and considered all of the cases referred to by counsel (Exhibits 6 and 7). I do not intend to refer to all of those cases, but I will briefly set out some of the themes which emerge. [ 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 violence acceptable, almost normal, for each individual rioter. In Regina v.

Blackshaw , [2011] EWCA Crim 2312, in dealing with charges arising from the riots in England in August, 2011, the England and Wales Court of Appeal said this at paragraph 9, It was observed on behalf of some of the appellants that their involvement followed earlier criminal activity by others. While that is factually correct, it provides no mitigation whatever for criminal activity which created or exacerbated the public disorder problem with which police and fire officers were dealing.

The reality is that the offenders were deriving support and comfort and encouragement from being together with other offenders, and offering comfort support and encouragement to the offenders around them. Perhaps, too, the sheer numbers involved may have led some of the offenders to believe that they were untouchable and would escape detection. [ 38 ] A relatively minor offence becomes much more serious when committed during a riot. In describing the minor mischief committed by the offender during the riot following the Stanley Cup final game in Montreal in 1993, the Court in Regina v.

Fuller , 1995 CarswellQue 2513, J.E. 95-1118, said at paragraph 46 , Those acts must be analyzed in the context of the riot. The gravity of the act does not lie in the destruction of the sign itself. The relative minor offence of damaging and removing a “One Way” sign installed on a pole, at the St-Marc and Ste-Catherine intersection, becomes much more serious when it is committed during a full blown riot. His actions have a direct impact on the multitude. His acts encourage others to take

part in the riot. It contributes to the excitement, fervour, intimidation and dangerousness of the unlawful assembly. [ 39 ] Those who get involved in a riot are usually otherwise decent and law-abiding people who are often, after the fact, shocked at their own behaviour. This is the puzzling reality, but affords no excuse, as pointed out by the Court in Regina v. Blackshaw at paragraph 9, That leads us to address the suggestion that perhaps this level of public disorder should be treated as “mindless” activity. It was undoubtedly stupid and irresponsible and dangerous.

However none of these appeals involves children or young offenders (where different sentencing considerations arise) nor indeed offenders with significant mental health problems. None of the offenders before us was “mindless.” Their actions were deliberate, and each knew exactly what he, and in one case, she, was doing. The Serious Nature of the Offence [ 40 ] Why is this offence considered to be so serious? During a riot, the rule of law is suspended by virtue of the actions of the rioters. Citizens nearby and further afield cannot feel, and indeed are not, physically safe.

The extraordinary call on emergency services of all kinds can result in there being no assistance available for anyone else in the community. Property of all sorts, locked and secured in the ordinary way, is not safe from the crowd. By sheer force of numbers, the rioters can break through any security device and loot and destroy at will. [ 41 ] Participation in a riot includes a vast range of behaviours. A riot will only end when those involved do what they should have done in the first place: stop and leave the area.

As long as there are observers, who by their very presence are encouraging the destruction, people watching, sometimes cheering, and frequently taking photographs, the riot will continue. [ 42 ] The Court in Regina v. Fuller said this at paragraphs 49 through 51, One has to bear in mind that the only purpose of those rioters (mostly from 16 to 25 years old, the accused being 22) was the pleasure of destroying, terrorizing and putting fear into those who did not want to be part of the riot in the first place. Violence and mob rule replaced peaceful government (to paraphrase the judge in the Loewen case).

There lies the gravity of the crimes committed by the accused.

[43] Primary considerations in sentencing are therefore general deterrence and denunciation. In Regina v. Loewen, (1992) (BC CA), 75 CCC (3d) 184, (BCCA), the majority observed at paragraph 9, This is not the time for unwarranted leniency nor by the same token for unwarranted severity. Care must be taken at the same time topreserve the message of general deterrence. Analysis [44] As in every sentencing, there must also be consideration of the circumstances of the offender.

Where, as here, thecircumstances of the offence require a sentence of incarceration, but there is no need for the sentence to effect the rehabilitation of theoffender, there arises a need to limit the debilitating impact of the deterrent and denunciatory aspects of the sentence. In short, while itmay not be the time for “leniency”, for youthful, first time offenders of previous, and indeed present, good character, it is always the timefor restraint. [45] There is significant deterrent effect in the fact that Mr.

Patillo has faced criminal charges, and has been convicted in an openCourt, and will be sentenced and will carry a criminal record into his future, and the fact that there has been public scrutiny of all of thisthrough intense media attention. In this sense, the situation is different for Mr. Patillo and those who face similar charges arising fromthe events of June 15, 2011, than the situation of the usual offender. The level of media scrutiny and public condemnation experiencedby those involved in the riot goes far beyond what occurs for most offences and most offenders.

This is a significant consequence whichcomplements any sentence handed down by the Courts. [46] In light of Mr. Patillo’s prolonged and various involvement in the riot, in my view, a sentence of incarceration is necessaryhere. The imposition of a Conditional Sentence Order would not adequately address the primary principles of sentencing upon which theCourt must focus: deterrence and denunciation. The restraint that I have concluded is equally necessary will be reflected in the length ofthe sentence and the means by which it is served.

It is my intention by this sentence to decrease the potential debilitating effects ofincarceration, and also to extend the penal consequences in terms of time. Would you rise now, please, Mr. Patillo? [47] You will serve a sentence of 45 days intermittently. You will serve the first day today and then on consecutive weekendsbeginning on Friday, August 31, 2012. You will report as directed at 7 pm each Friday and be held until 5 pm each Sunday until yoursentence has been completed. [48] While you are not in custody, you will be bound by a Probation Order.

The statutory terms will apply and I will not add anyother conditions. The Order will be prepared in writing. It will be read and explained to you and a copy will be given to you. I delegateto the Clerk of the Court the other responsibilities I have under the Criminal Code. [49] There will be no surcharge. I expect the Crown will direct a Stay of Proceedings with respect to all of the other counts on theInformation. _________________________________ The Honourable C. L. Bagnall Provincial Court of British Columbia