R. v. Gartland Date:, 2013 BCPC 374

Citation: R. v. Gartland Date: 20130619 2013 BCPC 0374 File No: 223559-1-V Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TODD GARTLAND EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. ST. PIERRE Counsel for the Crown: D. Porte Counsel for the Defendant: L.J. Mackoff Place of Hearing: Vancouver , B.C.

Date of Hearing: June 19, 2013 Date of Judgment: June 19, 2013 Introduction [1] THE COURT: Todd Gartland pleaded guilty to participating in a riot contrary to s. 65 of the Criminal Code of Canada. OnMay 13th, 2013, a sentencing hearing was held and the matter was adjourned to today for reasons on sentence. Background [2] In R. v. Alviar, 2012 BCPC 181 , [2012] B.C.J. No. 1179, at paragraphs 3 to 7, this court described the riot at issue asfollows: [3] On June 15th, 2011, the Vancouver Canucks lost their bid to win the Stanley Cup.

What followed was a riot of approximatelyfive hours during which acts of wanton violence, destruction and theft occurred. [4] 1035 Emergency Responders were deployed to the riot. Several blocks of the downtown core were impacted and during the fivehour period the emergency 911 center received more 911 calls than had ever been recorded in a complete 24 hour period. [5] Numerous acts of assault, theft and vandalism were committed with 112 businesses being damaged and 122 vehicles being[damaged or] destroyed ... [6] The estimated monetary loss is thought to be in excess of 3.7 million dollars.

The damage to the sense of security enjoyed by allthose who live, work, or visit Vancouver is immeasurable, as is the harm caused to the city’s reputation. [7] Undoubtedly, Emergency Responders, those innocently caught in the middle of the riot and all those directly victimized havesuffered some degree of emotional harm. Evidence of this harm is borne out by those Hudson Bay employees that were trapped in theBay during the peak of the riot. All of these employees have attended counselling in order to help them deal with the fear they felt thatnight. Actions of Mr. Gartland [3] On June 15th, 2011, Mr.

Gartland watched the Stanley Cup final game in West Vancouver. While watching the game, hedrank 10 pints of beer. After the game, Mr. Gartland purchased a six-pack of beer and he made his way to the Lower Lonsdale area ofNorth Vancouver. While at this location, he saw smoke rising from the downtown core. [4] This observation prompted Mr. Gartland to take the SeaBus to Vancouver so he could watch what was happening. While onboard the SeaBus, he started drinking the beer that he had purchased. It is clear Mr. Gartland was intoxicated when he arrived at theVancouver SeaBus terminal. [5] Once in Vancouver, Mr.

Gartland began wandering around. He was shocked at what he saw and he began filming the activitieson his cellphone. Mr. Gartland eventually made his way to the front of the London Drugs store where he stood and watched as riotersforced their way in and looted the store. At one stage, an unknown male standing beside Mr. Gartland asked, "Are you going in?" Mr.Gartland responded by saying, "I don't know." [6] For reasons that Mr. Gartland has been unable to explain, he partially covered his face and he entered the London Drugs store. Once inside, he went directly behind the kiosk area where he opened a cupboard.

He then removed two cartons of cigarettes and heexited the store. Once outside, he threw the cartons on the ground and, upon hearing the police direction to leave the area, he left andreturned to the North Shore. [7] Mr. Gartland's entry into London Drugs was momentary and, while inside, he did not damage or destroy store fixtures. It isnoteworthy he tried to cover his face and that he entered a closed cupboard. It is this entry that appeared to be noticed by a second malewho, after Mr. Gartland left the area, entered the cupboard, and he too removed items. In essence, but for Mr.

Gartland's actions, itappears that the cupboard would not have been entered by the second male. [8] In January of 2012, Mr. Gartland learned from a friend that his image was posted on the VPD riot website. Shortly afterreceiving this information, Mr. Gartland contacted the police and met with them, wherein he confessed to his involvement. Mr. Gartland's Circumstances [9] Mr. Gartland is 24. Although his parents divorced when he was young, he had a stable upbringing and, in his words, a greatchildhood. After graduating from high school, Mr. Gartland began working in the food service industry.

He still works in this industryand, once the court matters are finished, he plans to take formal culinary training.

[10] With respect to Mr. Gartland's current employment, he has worked for this employer for three and a half years and he wasrecently promoted to sous chef. The manager where Mr. Gartland works knows about Mr. Gartland's involvement in the riot and hedescribes Mr. Gartland as an excellent employee before and after the offence. [11] Letters have been filed speaking to Mr. Gartland's character.

In sum, they support the notion that his involvement in the riotwas out of character, that he has grown since the event, that he is likeable, and that he has shown substantial remorse over hisinvolvement in the riot. [12] A psychological assessment of Mr. Gartland's personality and psychology was filed with the court. At page 18 of theassessment, Dr. Lea writes [as read in]: In short, in my opinion, from a psychological standpoint, there is no need to incarcerate Mr. Gartland. He does not represent any kind ofdanger or risk to the public. He does not need rehabilitation.

From a psychological perspective, he has already learned his lesson anddeeply regrets his criminal conduct. Furthermore, Mr. Gartland is extremely remorseful regarding his offending. Further, as I havedescribed above, unlike many criminal offenders, Mr. Gartland has a much better appreciation of the impact (and harmfulness) of hisoffending at a larger corporate and societal level. [13] The Pre-Sentence report identifies alcohol consumption and poor decision making as features contributing to Mr. Gartland'soffending behaviour. The report also notes Mr.

Gartland is remorseful for his conduct and his willingness to take whatever counsellingmay be deemed necessary. Aggravating Factors [14] It is aggravating that Mr. Gartland attempted to cover his face when he entered the London Drugs. It is also aggravating thatwhile inside the London Drugs, he entered a closed cabinet and committed theft. Finally, it is aggravating that his actions influenced asecond male. Mitigating Factors [15] Mr. Gartland is young. He has no criminal record. He has support in the community. He came forward to the police. He hasexpressed genuine remorse and he pled guilty.

His guilty plea and his act of coming forward is substantially mitigating. Victim Impact [16] I have read all of the victim impact statements filed by the Crown. It is clear that those who concealed themselves in the lockedroom in London Drugs were very frightened and the events are something that they have carried with them for a long time. I am mindfulthere is no evidence showing that Mr. Gartland knew or could have known that the London Drugs store was staffed that evening.

Position of the Parties [17] Crown argues a fit and appropriate sentence is a three-month conditional term of imprisonment followed by probation. Insupport of their position, Crown places strong reliance on R. v. Peepre, 2013 BCCA 115. [18] Defence counsel argues a fit and appropriate sentence is a conditional discharge. Defence counsel relies on R. v. Fallofield(1973), (BC CA), 13 C.C.C. (2d) 450 (B.C.C.A.), and R. v. Peepre, supra.

With respect to Fallofield, defencecounsel places strong reliance on it as support for the proposition that a conditional discharge can achieve the requisite amount ofdenunciation and deterrence. Legal Principles [19] I have considered the purposes and principles of sentencing as set out in ss. 718 to 718.2 of the Criminal Code. I note afundamental purpose of sentencing requires a sentence to be proportionate to the gravity of the offence and the degree of offenderresponsibility. [20] The paramount sentencing objectives in the context of a riot are denunciation and deterrence; see R. v.

Loewen (1992), (BC CA), 75 C.C.C. (3d) 184 (B.C.C.A.), and R. v. Peepre, supra. [21] Participating in a riot is a serious offence. It is the lawless and senseless pursuit of wanton destruction. Individual participationin a riot is a sign of approval to the riot and it indirectly fuels and encourages others to join in. Arguably, that is what happens to Mr.Gartland. He watched others and was encouraged to join in. [22] With respect to Mr. Gartland's specific acts committed during the riot, his conduct can be described as a momentary impulsiveact towards the lower end of the spectrum.

Range of Sentences [23] To date, there are several rioting decisions. I am very familiar with them and I observe no offender has received a conditionaldischarge. Sentences have ranged from a 16-month prison sentence, R. v. Dickinson, 2012 BCPC 40, to a two-year suspended sentence,R. v. Cacnio, 2012 BCPC 314 , 2012 BCPC 0314. [24] In R. v. Peepre, Madam Justice Garson reviewed some of the rioting decisions and commented at paragraph 30]:

These comparator cases disclose that, generally speaking, first time offenders (meaning those with no criminal record) will neverthelessreceive a prison sentence of some significant length if their conduct includes: inciting others; engaging in additional criminal activity,such as assault (particularly of a police officer), arson, or wearing a mask; or committing multiple criminal acts in multiple locations. [25] Ultimately, the court in Peepre granted leave to appeal, but dismissed Crown's appeal.

Prior to doing so, the court noted Mr.Peepre was sentenced to a significant amount of incarceration, that being a 60-day intermittent sentence, and probation for 18 months. Further, it was noted that his participation in an assault raised Mr. Peepre's conduct to a level requiring incarceration. The actions forwhich Mr. Peepre received the substantial jail were described by the court at paragraph 13. It reads: The Crown provided a DVD disk showing Mr. Peepre's involvement in the riot.

It is clear from the video clips provided that Mr.Peepre's involvement in the riot could not be characterized as fleeting or as a result of a momentary error in judgment. He is captured onvideo participating in several acts of aggression and violence over the course of approximately an hour. The video captures Mr. Peepre inthe company of many other violent youths. Mr. Peepre is seen: posing on a burning overturned vehicle; throwing what looks like anempty plastic bottle at the police; verbally and physically confronting police officers; refusing police requests to disperse; and swiping orpunching once at Mr.

Brown after he had been knocked to the ground. [26] When I consider other sentencing decisions, I make some of the following observations. In R. v. Alviar, 2012 BCPC 181, [2012] B.C.J. No. 1179, the offender was sentenced to 30 days' custody. He was a youthful first-time offender. He wasinvolved in the riot for a long period of time. He had four younger youths of which he was in charge of during the course of the riot andhe was in involved at multiple locations. [27] In R. v. Ovando Renderos, 2012 (B.C.P.C.), the offender was sentenced to an intermittent jail sentence of 45 days.

He was ayouthful first-time offender who masked his face, threw objects at windows, entered a store, stole some items, and he kicked a parkedcar. [28] The court recognizes the guidance of the above cases and it is appreciated that sentencing is individualized to the particularoffender and their circumstances. It must be remembered the cases are ranges and they do not represent rigid inflexible boundaries; seeR. v. Nasogaluak (2010), 2010 SCC 6 , 251 C.C.C. (3d) 293 (S.C.C.). Is a Conditional Discharge Appropriate? [29] There are two conditions precedent to the granting of a conditional discharge.

A conditional discharge must be in the bestinterests of the accused and a conditional discharge must not be contrary to the public interest; see R. v. Fallofield (1973), (BC CA), 13 C.C.C. (2d) 450 (B.C.C.A.). [30] With respect to the instant case, counsel acknowledge the issue to be determined is, in all the circumstances, is the granting of aconditional discharge contrary to the public interest.

The court in Fallofield, supra, at paragraph 21, number (6), commented: In the context of the second condition the public interest in the deterrence of others, while it must be given due weight, does not precludethe judicious use of the discharge provisions. [31] Accordingly, the availability of a conditional discharge is not precluded simply because general deterrence is needed to bereflected in the sentence imposed; see R. v. Etienne, 1989 CanLII BCCA. [32] In R. v. Elsharawy (1997), (BC CA), 11 C.C.C. (3d) 565 (Nfld.

C.A.), at paragraphs 3 to 4, the courtdiscussed factors to examine when considering the issue of whether or not a conditional discharge is contrary to the public interest.

Thecourt stated: The second condition involves a consideration of the principle of general deterrence with attention being paid to the gravity of theoffence, its incidence in the community, public attitudes towards it and public confidence in the effective enforcement of ... law. [33] Finally, when sentencing an individual, a court must be guarded to ensure that the hardship created by the sentence imposed isnot disproportionate to the seriousness of the offence and the offender's responsibility.

This includes considering the impact thatregistering a conviction will have on an accused person. [34] Circumstances where the registering of a conviction were deemed disproportionate include adverse impact on employment, R.v. Carroll (1995), 38 C.R. (4th), (B.C.C.A); possibly deportation, R. v. Fung (1973), (AB CA), 11 C.C.C. (2d) 195(Alta. C.A.); possible loss of tuition monies, R. v. Abouabdellah (1996), 109 C.C.C. (3d) 447 [sic, 477] (Que. C.A.). [35] With respect to the instant case, counsel for Mr. Gartland argues if a criminal conviction is registered, then Mr.

Gartland'sability to work abroad as a chef would be limited. No specifics were given regarding potential opportunities or plans in this regard. [36] The court notes Mr. Gartland participated in a large-scale riot, a riot where there was extensive damage, harm, and fear. Specifically, the damage estimate exceeds $3 million. Persons were injured. Emergency resources were stretched to their limits andinnocent third parties suffered extreme anxiety.

[37] It is my view that Mr. Gartland's action of covering his face, entering a closed cabinet, and removing the cartons of cigarettes inthe context of a large-scale riot requires a degree of condemnation and punishment which cannot be met by granting a conditionaldischarge. Accordingly and after considering all that has been said on his behalf, I find that a conditional discharge would be contrary tothe public interest. Is a Custodial Sentence Required? [38] In the circumstances of this case, I find the purposes and principles of sentencing can be achieved without imposing a custodialsentence.

This finding is based on the authorities, the purposes and principles of sentencing, the context of the riot, Mr. Gartland'scircumstances, his involvement, as well the aggravating and mitigating factors. [39] My decision is also driven by the knowledge that the charge, the associated publicity, the bail conditions, and the registration ofa criminal conviction will contribute to the amount of denunciation and deterrence required in this case; see R. v. D.E.S.M. (1980),C.C.C. (3d) [sic, (1993), (BC CA), 80 C.C.C. (3d) 371] (B.C.C.A.). Sentence [40] After considering Mr.

Gartland's actions, their context, his personal circumstances, the case law, it is this court's view that thepurposes and principles of sentencing can be met by suspending the passing of sentence and placing Mr. Gartland on probation for aperiod of 16 months. The terms and conditions of the probation are as follows: 1. You are to keep the peace and be of good behavior. 2. You are to appear before the court when required to do so by the court. 3.

You are to report to a probation officer at 275 East Cordova Street by no later than 4:00 p.m., today, Wednesday, June 19, 2013,and thereafter as and when directed by your probation officer. 4. While outside your place of residence, you are not to be under the influence of alcohol. I pause here to point out to Mr. Gartland,what that means is the only place you can drink is at your home. If you go outside your home, you cannot have any alcohol in yoursystem whatsoever. 5.

On or before January 31, 2014, you must, at the direction and to the satisfaction of your probation officer, complete 100 hours ofcommunity work service. 6. Finally sir, you must carry a copy of this order on your person when you are outside your place of residence. That serves to youas a reminder that you are bound by court orders and the involvement that you had. [41] There is a small victim fine surcharge that attaches. Does your client need time to pay that? [42] MR.

MACKOFF: The statutory minimum would be suitable, Your Honour, so that would be 14 days. [43] THE COURT: Is it 14 days? [44] THE CLERK: It says two months. [45] THE COURT: All right. I will give him two months' time to pay which, for clarity on the record, I will state what that will be. It must be paid on or before Wednesday, August 14th, 2013. [46] MR. PORTE: Thank you, Your Honour. Thank you for those expansive reasons.

The only comment I have is with respect toYour Honour's reasons when you mentioned the case of Dickinson, I do not know if you misspoke because I thought I heard that youindicated it was a conditional sentence of 16 months and if the matter -- [47] THE COURT: No, Dickinson was straight jail -- [48] MR. PORTE: Yes, it was. I -- [49] THE COURT: -- and if I did misspoke -- [50] MR. PORTE: Yes. [51] THE COURT: -- I am alive and well aware of the fact that -- just give -- [52] MR. PORTE: I know.

Oh, I knew you were aware of it, Your Honour, I just was not certain if reasons happened to be orderedthat it is a -- [53] THE COURT: Let me just review that. One second. I may have misread -- my paragraph reads, "Sentences have ranged froma 16-month custodial sentence" -- [54] MR. PORTE: Thank you. [55] THE COURT: -- and I may have supplanted that with "conditional." [56] MR. PORTE: Yes, and I know that you are aware of that sentence.

[ 57 ] THE COURT: Yes, all right, thank you. I am -- [ 58 ] MR. PORTE: I did not state it for any reasons other than that, and the Crown directs a stay of proceedings with respect to Count 2. [ 59 ] THE COURT: All right. [ 60 ] Mr. Gartland, I know you did not get what you had hoped for today. I have to balance many competing interests. I trust that you will go on living your life in the exemplary fashion that you had before the June 2011 date. [REASONS FOR SENTENCE CONCLUDED]