R. v. Aujla Date:, 2013 BCPC 73

Citation: R. v. Aujla Date: 20130312 2013 BCPC 0073 File No: 223587-1-V Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. AMAN SINGH AUJLA EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. BAHEN Counsel for the Crown: P. Tomasson Counsel for the Defendant: S. Andrews (as Agent for R. Chamberlain, QC) Place of Hearing: Vancouver , B.C.

Date of Hearing: March 12, 2013 Date of Judgment: March 12, 2013 [ 1 ] THE COURT: These are my reasons for sentence. Introduction [ 2 ] Aman Singh Aujla has pled guilty to taking

part in the Stanley Cup riot on June 15, 2011. Crown counsel and defence counsel have both submitted the individual circumstances of Mr. Aujla's participation in the riot place him in the middle range in terms of the gravity of this offence. [ 3 ] Crown counsel seeks a jail term for a period between 45 to 90 days and submits the circumstances support a sentence at the higher end of that range.

The Crown says the sentence should be served in a correctional institution. [ 4 ] The defence has submitted the circumstances of the offence and of this offender and the purposes of sentencing support the imposition of a conditional sentence order served in the community for a period of about six months. [ 5 ] The primary issue at this sentencing hearing is whether the sentence imposed should be served in jail or in the community. [ 6 ] For the reasons that follow, I have concluded that the fit sentence in this case is a sentence of 45 days' imprisonment to be served intermittently on weekends in a correctional institution.

I will hear further submissions from counsel at the end of these reasons regarding the appropriate

schedule and structure of the intermittent sentence. Circumstances of the Offence [ 7 ] The document entitled "admissions of fact" filed as Exhibit 3 at this sentencing hearing contains an overview of the events of the riot summarizing the five-hour period from about 7:30 p.m. on June 15 to about 12:30 a.m. the following morning. The riot initially involved crowds at the intersection of West Georgia Street and Hamilton Street but quickly spread to other streets in the downtown area.

There was a large crowd of people in the 700 block of Nelson Street, and many of them became involved in damage to property and confrontations with the police at this location. [ 8 ] There was a prolonged series of violent and destructive confrontations as the police and even some bystanders tried to quell or discourage the rioters.

The property destruction and looting throughout the downtown area resulted in millions of dollars in repair costs and business losses. [ 9 ] Exhibits 2 and 4 at this sentencing are DVDs containing videos and photographs, including depictions of the destruction of two Vancouver police department cars and a Vancouver fire department car. These cars had been parked on the street in the 700 block of Nelson earlier in the evening when officers were involved in the preparation of anticipated crowd control and post-game events. Mr.

Aujla is directly involved in the destruction of these cars by lifting and pushing one police car together with about 10 to 15 other persons. They are eventually successful in their efforts to flip over the police car. [ 10 ] Both police cars were flipped over by numerous rioters in the crowd and the fire department car was extensively damaged. [ 11 ] Mr. Aujla is visible in the video and photographs.

He can be heard in the video recording as he says to others in the crowd, "Move on to this one," referring to the fire department car after the police car has been damaged. [ 12 ] The replacement cost of the three vehicles, which were not repairable and were written off, based on their depreciated capital value was about $25,000. [ 13 ] There was a hockey stick lying on the street after some of the rioters used it to damage a police car. Mr. Aujla picked up this hockey stick and moved quickly to the large glass display window of a pizza restaurant on the south side of Nelson Street just west of Granville.

This large window had been previously damaged by other rioters earlier that evening. [ 14 ] Mr. Aujla quickly made about five repeated and forceful swings to strike the window while holding the hockey stick with both his hands. As he made his first swing at the window, the glass shattered and two women who were standing on the sidewalk in front of the window ran away. They were screaming, and one of them raised her hands over her head, apparently fearing the glass would strike her head or face. [ 15 ] Several pieces of the window were broken by Mr. Aujla.

In the video recording, he did not seem to be aware of the proximity of these two women, but the path of motion of the swinging hockey stick depicted in the video appeared to be slightly above and away from their heads before they fled onto the street from the sidewalk. [ 16 ] After he is finished striking the window, he puts the hockey stick down and moves quickly back into the crowd on Nelson Street. He gives a "high five" to another member of the crowd as he rejoins the group on the street. [ 17 ] Mr. Aujla's counsel has told the court the events of the riot are not clear in Mr.

Aujla's memory due to intoxication that evening. Mr. Aujla was not aware there were people inside the pizza restaurant when he damaged the window. Mr. Aujla says he would not have done this if he had known of the presence of people inside the restaurant. [ 18 ] There is a victim impact statement from Mr. Kucuk, the owner and manager of the pizza restaurant. His statement is included at Tab 5 in Exhibit 1, the Crown's book of documents. Mr. Kucuk and his staff were afraid for their safety during the riot. Six windows at the front of the restaurant were broken in the riot.

The staff suffered the effects of the tear gas used by the police in an effort to move

the crowd later that evening as the gas came through the broken windows of the restaurant. They were scared by the possibility theflipped cars outside would blow up. One of the police cars had been pushed to the sidewalk and was upside down near the front of therestaurant. [19] Mr. Kucuk sent his staff home at 4 a.m., and he stayed in the restaurant under the following morning when the windows couldbe repaired. [20] The pre-sentence report contains a

summary of an interview with Mr. Kucuk by the report author. Some members of the crowdwere aware he was inside the restaurant and made obscene hand gestures of disrespect to him as they broke the windows. He describedthe experience as extremely frightening. The business suffered the costs of the insurance deductible in repairing the six windows. [21] The events of the riot involving Mr. Aujla were prolonged and repeated over a period of roughly 10 to 20 minutes. This was nota momentary offence.

He chose on at least two occasions to take some individual initiative: to use the hockey stick to smash thewindow and to urge others in the crowd to move on to the destruction of the fire department car. The actions he took in smashing thewindow created some risk of direct physical harm to the two women bystanders on the sidewalk. Crown and Defence Positions on Sentence [22] The Crown has submitted the moral culpability of Mr. Aujla in this offence is an important factor in assessing the appropriateduration and form of sentence to be imposed.

It is the manner of his participation, the degree of his involvement, and the scope of hisactions during the riot that are emphasized in the Crown's submission. In addition, the individual circumstances of this offender must beconsidered when the duration and form of sentence are assessed. [23] The fundamental principles of sentencing require the court to consider the concept of proportionality. The sentence imposedmust be proportionate to the gravity of the offence and the moral culpability of the offender.

The underlying rationale for this approachto sentencing has been expressed in cases referred to by Crown counsel, including the decisions of the Supreme Court of Canada in R. v.C.A.M., (SCC), [1996] 1 S.C.R. 500 at paragraph 40, and in R. v. Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61 atparagraph 82. [24] The concept of proportionality in the sentencing of persons involved in this riot should also include consideration of othersentences imposed by judges of this court on persons who have been previously sentenced for their participation in the events of June 15,2011.

There is not a grid or framework to be imposed as the sentencing decision should remain as an individualized process recognizingthe unique aspects of the offence and the personal characteristics of the offender. [25] The participation by Mr. Aujla in this riot is a serious offence by the particular circumstances of his own actions but also as areflection of the gravity of the wider scope of the riot and the effect on the community. [26] The gravity of the riot offence has been noted in previous decisions from this court, including the cases of R. v. Yates, 2012BCPC 250 at paragraphs 17 and 28 to 38, and R. v.

Chou, 2013 BCPC 23 at paragraphs 28 to 31. The Crown has noted the functionserved by a denunciation of offenders whose conduct has violated the law and jeopardized the safety of members of the community. [27] The Crown has also referred to the other offences charged against Mr. Aujla but not yet heard at trial. These charges arose afterthe riot offence and include a breach of a bail term involving alcohol consumption. The post-offence charges are relevant but are not asignificant factor in the decision to impose a term of imprisonment served intermittently in an institution in Mr.

Aujla's case. [28] There have been four persons sentenced for their roles in the events in the 700 block of Nelson Street during the riot. Theseprevious decisions provide some guidance in determining the relevant factors and in assessing the proportionality of any sentenceimposed on Mr. Aujla. [29] In R. v. Dickinson, 2012 BCPC 40, the offender had a previous criminal record, was on bail for another offence, and wasengaged in numerous instances of blameworthy conduct during the riot. He received a jail term of 16 months. [30] In R. v.

Epp, unreported, British Columbia Provincial Court, 24 October 2012, Vancouver No. 223515-1-V, an offender with noprior record whose participation in the riot was found to be at the lower end of the scale of these offences received a three-monthconditional sentence order. He had turned himself into police and gave a full statement soon after the riot. [31] Mr. Aujla did not turn himself in and was interviewed by police several months after the riot after the police receivedidentifying information in response to distribution of video materials to the public.

This post-offence conduct is not an aggravatingfactor in sentencing for Mr. Aujla but it should be viewed as an absence of the mitigating factor found in the Epp sentencing decision. [32] The offence committed by Mr. Aujla has greater similarity to the circumstances in R. v. Anderson, unreported, British ColumbiaProvincial Court, citation not available, where the offender was involved in damaging two restaurants and a police car in the 700 block ofNelson. He received a three-month jail term and a $1,000 victim fine surcharge and a probation order for 18 months. [33] In R. v.

Wernicke, 2012 BCPC 451, dealing with riot events at another location in the 600 block of Cambie Street, an offenderwho damaged police cars and whose background was previously exemplary received a 30-day jail term served intermittently. [34] The circumstances in R. v. Johansen, unreported, British Columbia Provincial Court, 25 January 2013, Vancouver No. 223585-1-V, have some common features with the offence committed by Mr. Aujla. Johansen was involved in extensive efforts to damagepolice cars, and he waited until the police identified him in their subsequent investigation.

He provided a statement to investigators andpled guilty. He had damaged the cars and had pushed a civilian bystander, although this pushing incident was viewed as relativelyminor. [35] The defence position on sentence emphasizes the deterrent and denunciatory effect of a conditional sentence order as well as the

widespread notoriety and stigma that attaches to those persons who have been convicted of participating in this riot. The cases referred to by the defence include several recent decisions from judges of this court, including R. v. Burkett , 2012 BCPC 315 ; R. v. Cacnio , 2012 BCPC 314 ; R. v. Chou , supra ; R. v. Long , 2012 BCPC 454 ; and R. v. Snelgrove , 2012 BCPC 235 . [ 36 ] The sentencing decisions referenced by the defence involve persons who have no prior record and whose backgrounds are quite similar to Mr. Aujla.

The previous good character and the youthfulness of these offenders were important aspects of the sentencing decision. However, most of the decisions cited by the defence involve momentary involvement in a riot or conduct that I find to be somewhat less morally blameworthy than that of Mr.

Aujla, particularly considering his actions with the hockey stick at the restaurant window. [ 37 ] A further mitigating factor involved in several of the cases cited by defence was the willingness of the accused to come forward soon after the riot to identify themselves to police investigators. [ 38 ] While I accept the proposition advanced by the defence regarding the deterrent effect of a conditional sentence order, I do not find that the degree of denunciation that must be conveyed by the sentence in this case can be provided through a conditional sentence order. [ 39 ] The background of the accused is an important mitigating factor in assessing the duration of a jail term.

He has a supportive family and employer. He has provided letters of personal reference to the court that present his personal qualities and potential for rehabilitation in clear and persuasive terms. He was only 18 years old at the time of this offence and has no prior criminal record. He is intensely involved in amateur boxing and has the potential to become a participant in that sport at future events. He regularly participates in amateur boxing tournaments that are scheduled on Friday evenings. His parents are directly involved in his daily life and are a positive influence for him.

His prospects for rehabilitation are clear and realistic, in my view. Conclusion [ 40 ] After considering the submissions of counsel, the range of sentences in similar cases, and the principles of sentencing, I have determined that the sentence imposed on Mr. Aujla for the offence of participating in a riot in Count 1 will be a jail term of 45 days to be served intermittently. I do not intend to have the intermittent sentence interfere with his continuing employment or with his further attendance at scheduled boxing tournaments where he is participating.

I will need to hear further submissions in a moment from counsel on the

schedule of the intermittent sentence. [ 41 ] While he is not in custody serving the custodial portion of this intermittent sentence, he will be placed on a probation order with the statutory conditions. [ 42 ] I will not impose a further probationary term after the completion of the intermittent sentence as I do not feel that would be necessary in accomplishing the purposes of sentencing. [ 43 ] I will impose a victim fine surcharge in the amount of $400, and I will grant time to pay that amount. (DISCUSSION RE SCHEDULE) [ 44 ] THE COURT: Mr.

Aujla, you will be taken into custody today, and you are going to serve the first day of the intermittent sentence today, and then on consecutive weekends beginning on Saturday, March 23, 2013, you must report as directed at 9 a.m. each Saturday and be held until 5 p.m. each Sunday until your sentence has been completed. [ 45 ] I will extend the time to pay on the $400 victim fine surcharge. The full amount of the victim fine surcharge must be paid by June 28, 2013. That is Friday, June 28, 2013, for completion of payment of the $400 victim fine surcharge. [ 46 ] There is a probation order that applies while Mr.

Aujla is not serving the custodial portion of his sentence, and the only conditions of that probation order are the statutory terms. [ 47 ] MS. ANDREWS: Thank you, Your Honour. Mr. Aujla does have to be at work at 10:30 tonight, but I'm hoping that won't be a problem in relation to -- [ 48 ] THE COURT: Sheriff, he is serving the first day today. He will be released by about what time, five -- [ 49 ] MR. SHERIFF: North Fraser is going to want him for processing, so I'm assuming 4 o'clock, 5 o'clock in the afternoon. [ 50 ] THE COURT: I think that is typical.

The release time is usually sometime in the early evening or late afternoon. [ 51 ] MS. ANDREWS: Thank you, Your Honour. [ 52 ] THE COURT: Thank you. [ 53 ] MS. TOMASSON: The Crown directs a stay of proceedings on Counts 2 and 3, Your Honour. [ 54 ] THE COURT: Thank you. Thank you to counsel. (REASONS CONCLUDED)