R. v. Makris Date:, 2013 BCPC 239

Citation: R. v. Makris Date: 20130913 2013 BCPC 0239 File No: 223605V Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. VASILIOS GEORGE MAKRIS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE W.J. KITCHEN Counsel for the Crown: D. J. Porte Counsel for the Defendant: D.G. Baker Place of Hearing: Vancouver , B.C. Date of Hearing: August 30, 2013 Date of Judgment: September 13, 2013

[ 1 ] Makris has pled guilty to the charges that on or about the 15 th day of June, 2011, at or near Vancouver, in the Province of British Columbia, he did (Count 1) take

part in a riot, contrary to

Section 65 of the Criminal Code and (Count 2) commit assault of another person, Albert Coleman Edwin Easterbrook, contrary to

Section 266 of the Criminal Code . [ 2 ] On June 15, 2011, the Vancouver Canucks lost the seventh and final game of the Stanley Cup Final Series to the Boston Bruins. The game ended at about 7:45 p.m. and a few minutes later a riot began in the downtown core of Vancouver that lasted until about 12:30 a.m. on June 16, 2011.

During the game there had been approximately 155,000 people in the downtown area of Vancouver at various venues including public outdoor viewing locations, private residences, restaurants and bars, and Rogers Arena where the game was played. [ 3 ] The offender, Makris, says that his day on June 15, 2011 began with a series of bad decisions; he had received distressing news from his girlfriend and was not in a good headspace going downtown. He had the intention to drink alcohol to intoxication and to party with friends, but he left the company of his friends and went off on his own.

He believes he ingested well over a dozen beer and 14 oz. of vodka and wound up at the location where the riot started in the public viewing site [the “live site”] on the street in front of the CBC building in downtown Vancouver. [ 4 ] After the game concluded at 7:45 p.m. with the Boston Bruins winning the game, most everyone remained in the main public viewing site where about 55,000 people had watched the game on video screens. The crowd appeared to be expecting something to happen, continuing to stand and watch the video screens.

Nothing was done to indicate to the crowd that the evening was over –the media coverage remained in place, apparently in anticipation. The wait was not long. [ 5 ] In this public viewing area two private vehicles were parked in front of the Canada Post Building, across the street from the CBC building. The riot began when one of these vehicles, a Versa, was overturned by the crowd and set on fire, being totally destroyed by 8:00 p.m. As this occurred, the other vehicle, a GMC, was attacked by the crowd. At first police and fire fighters were able to chase them away.

The fire was put out but the crowd forced its way back, overturned the GMC and set it on fire. Some of the rioters threw burning items into the front seating area of the GMC and as the fire engulfed the entire vehicle, flammable items were kicked and thrown into the flames. A number of citizens unsuccessfully tried to stop the attack on the GMC and one Good Samaritan, the complainant in Count 2, was attacked by the rioters.

The GMC was ultimately completely destroyed. [ 6 ] For approximately one hour after the GMC had been lit on fire, the police used various techniques in an effort to disperse the crowd from the Live Site. These techniques included but were not limited to: (

a) loud announcements directing the crowd to leave the area or risk arrest; (

b) police line formations designed to push the crowd back; (

c) use of the mounted (horse) squad; and (

d) deployment of “blast balls” and other noise detonation devices to move the crowd. [ 7 ] At the time the police were utilizing the various techniques to disperse the crowd, members of the crowd were becoming increasingly confrontational. Police were being yelled at, having projectiles thrown at them and many people were refusing to peacefully leave the Live Site. [ 8 ] The rioting crowds occupied West Georgia Street and the surrounding areas, breaking into and looting the many commercial premises as they went. Vehicles were vandalized, broken into and set on fire.

Crowds of people faced off against the police and threw projectiles at them. Many police and civilians were attacked and assaulted. An atmosphere of lawlessness, violence and destruction quickly consumed the downtown core of Vancouver. [ 9 ] As the riot moved west along Georgia Street the crowd crossed Richards Street and then Seymour Street, in the 600 block of each street. Multiple commercial premise windows were broken and the contents of the premises looted. At Seymour Street, three blocks from where the riot started, the crowd came to the Hudson’s Bay Company Department Store that spans an entire block.

The crowd began to break the windows of the store and loot the merchandise. Soon hundreds of rioters were engaged in this. At the time, there were still 70 to 80 employees within the store since The Bay had intended on remaining open for business until 9 p.m. The employees were moved to the 7 th floor of the building for their safety. [ 10 ] At about 9:25 p.m. cars parked in the 600 block of Seymour Street adjacent to The Bay were vandalized. These vehicles were an Audi, a Ford Fusion and a BMW M5. All three vehicles were vandalized, set on fire and ultimately destroyed.

The smoke from these burning vehicles entered the broken windows of The Bay causing its fire alarm and sprinkler system to activate. This caused massive water damage to the area inside the broken windows and on the floors below. In addition, some of the staff within the store believed that the building was on fire and the employees were evacuated from the 7 th floor back through the main floor where the rioters were present and out onto the streets through the riot itself. [ 11 ] The Bay suffered extensive damages as a result of the riot.

All of the ground floor windows and some second floor windows of The Bay were broken. There was damage to the outside canopy from fire and from rioters climbing on it. There was smoke and water damage on the ground floor and sub floors. There was significant merchandise loss, and construction repair.

The financial loss to The Bay was $1,346,090.20 for loss of looted property, physical damage to merchandise and the store itself, and related costs such as trauma counselling for the employees. [ 12 ] A Victim Impact Statement filed on behalf of one of the employees provides frightening detail of the experience of the store staff during the riot. This employee, a Loss Prevention Officer, was at home but hurried to The Bay when he saw news of the riot on television.

In his statement he said, in part: … we ran to the main floor to find all of the LPO’s along with a regional LP manager … and the store director … who were all standing in the main aisle watching as people from the outside were smashing our coach windows on the Seymour Street and grabbing coach purses and running away. We knew there were at least 100 associates and injured customers upstairs hiding … We were instructed to stand back and tell whoever entered the store that they were being recorded and to leave The Bay immediately. The people involved

didn’t seem to care and continued to swear at us and threaten us, break our glass using 24 hour newspaper boxes and rocks. One group of people came in through the coach window and grabbed a mannequin and exited the same window only to throw the mannequin back through a coach window on Georgia. I watched as groups of people would beat up individuals including women outside the store. We watched as they lit cars on fire just outside The Bay on Seymour Street. (We) yelled at them to get away from the burning cars in case they blew up but they did not listen.

I watched as a girl was thrown head first through a piece of glass as people were laughing and screaming. … we went to the coach stock room and unlocked it to find many individuals running out carrying bags and bags of coach purses, two of the men engaged in physical contact with us and we were forced to throw knee strikes and even punches to the face to defend ourselves and in order to get them out the door. We were finally able to secure the room but it looked bare because so much had been taken already.

We started to hear loud crashes and bangs throughout the store and realized the rioters were now attacking all of the windows on the main floor perimeter. … The cars that were aflame on Seymour had now caught The Bay’s outside awning on fire as well as setting our fire alarms off and sprinklers in some areas.

We started to gather all the fire extinguishers we could in the store in case the fire moved inside but we soon realized that we could use the extinguishers to detour people from coming inside … Rioters threw what seemed to be tear gas into The Bay through the broken watches window causing us (to be) unable to breathe, the LPO’s then grabbed shirts and wrapped them around our faces allowing us to breathe. Rioters attacked … opening up tills and taking money and throwing fragrance sets and rocks at us when we tried to get them out of the store.

I witnessed as at least two civilians who were trying to protect the outside of The Bay by standing in between the rioters and The Bay got dragged into the street by numerous people and got beat up. … I ran to find a mob of rioters attacking the west Georgia doors, breaking the windows and kicking in the doors even taking them off their hinges yelling they were going to kill us.

At around the same time all of the associates started to come down the escalators thinking the building was on fire … They were panicked and hysterical and wanting to leave, a few of the LPO’s guided them to the loading dock area in the back alley of The Bay and led them through the rioters to safety at the Burrard Bridge … We continued to fight off rioters who were attacking us from all angles for approx 2 ½ hours until the riot squad on horses showed up … Many of the LPO’s sat down for hours afterwards in exhaustion … staff who were working that night were provided trauma counselling by HBC for weeks after the riot. [ 13 ] Another store employee, the Human Resources Manager, was on the main floor during the riot.

She helped bring in two injured girls as first one, and then all store windows were taken out by the crowd. She observed, “People thought it was 9-11 all over again. They were phoning home and saying that they were not going to make it.” Another manager said the main floor was “like World War III. They were just panicked. We have associates that won’t come to work anymore and continue to suffer panic attacks.” [ 14 ] In the days following the riot, Vasilios Makris was identified as a participant by a person who saw images of him on the internet.

As a result, many months later, on February 23, 2012, a police officer contacted Makris. The officer had further contact with Makris and Makris’ lawyer over the next few weeks. On April 1, 2012, almost ten months after the riot, Makris attended the Vancouver Police Department and was shown a number of video clips and photographs – he declined to comment on what he was shown, and also declined to speak about his involvement in the riot. Makris’ Participation in the Riot [ 15 ] Makris’ involvement in the riot was as follows.

Makris was present as the rioters damaged and eventually destroyed the Versa in front of the Post Office – the first major aspect of the riot. His participation in that event seems to have been mainly making a video on his cell phone of rioters damaging the vehicles and rioting generally. After a small fire had been set in the front seating area of the overturned Versa, Makris kicked an item into this fire. He then continued filming the destruction of the Versa, from various angles and in very close proximity to the vehicle.

As the Versa was fully engulfed in flames, he and other rioters celebrated their accomplishment. He also ran toward the burning vehicle and kicked items toward it. [ 16 ] Police officers and firefighters attended the scene. Police officers formed a protective circle around the Versa and the GMC, keeping rioters at bay, while firefighters put out the Versa fire. During this time, Makris attempted to move through the circle of police officers, but was confronted by a police officer who refused to allow him to get closer to the burning Versa.

Several photographs filed by the Crown taken of Makris at that time show him to be highly animated and confrontational. Makris then moved around near the front row of rioters, watching the firefighters put out the fire. [ 17 ] After the Versa fire was extinguished, many rioters including Makris ran toward the GMC. The police attempted to restrain the group but the rioters broke through past the police officers.

Makris in particular can be seen on a video clip, dancing in celebration of having succeeded in breaking the police line. [ 18 ] As rioters recommenced their attack on the GMC, Makris got into a brief physical altercation with another rioter, striking the rioter a few times. Albert Easterbrook, the victim in Count 2, interceded and got between Makris and the other rioter. Makris then remained in close proximity to the GMC as other rioters rocked and damaged the GMC and put burning paper into the front seating area of the vehicle in an effort to set it on fire.

Some Good Samaritans tried to stop this attack, with Easterbrook removing multiple pieces of burning paper from the vehicle. During this time Easterbrook and Makris appear to have been engaged in conversation, Easterbrook recalling later that Makris was not aggressively confronting him but rather trying to persuade him to abandon his efforts to save the vehicle because it was inevitable that it would be destroyed. [ 19 ] After a short period of time, Makris put his arm around Easterbrook’s shoulder and neck area while Easterbrook was trying to pull the burning paper from the GMC.

Easterbrook disengaged himself to prevent another rioter, John Sawicki, from putting burning paper in the GMC, and he punched Sawicki. In response to this punch, Makris and others attacked Easterbrook. Makris struck Easterbrook numerous times with his fist and hand and pursued Easterbrook around to the rear of the GMC where Easterbrook went to the ground and Makris and others appeared to be kicking at Easterbrook, who was concealed from view by the rioters. [ 20 ] Makris admits punching Easterbrook but recalls he was trying to help Easterbrook when others swarmed him and attacked him after he fell.

Makris said he was not kicking Easterbrook but attempting to kick other rioters off of Easterbrook. That does not appear to

be the case but in any event, I conclude Makris was fully involved in the very considerable violence that was occurring and he was not inany way doing anything to stop it. His involvement simply further contributed to the mayhem and chaos that was occurring.

Fortunately, Easterbrook suffered only cuts and scrapes to his head, arms and legs and even believed that Makris had not been involvedin the attack, although it is clear from the videos and photographs that Easterbrook is quite wrong. [21] After the attack on Easterbrook the rioters succeeded in flipping the GMC on its roof and setting it on fire so that it also wascompletely destroyed. During the burning of the vehicle Makris remained at the scene kicking and throwing things toward the fire.

Police officers were finally able to force the rioters away from the GMC, resorting to tear gas. [22] Makris moved east on Georgia Street and a short distance north on Hamilton Street. He was captured on video, sitting in analcove of the Canada Post Building drinking and pouring beer into his eyes. Shortly after he was interviewed by a news reporter and wasasked, “What do you think about the police action?” His reply – “Bring it on, Motherfuckers.” [23] Makris then moved further east on Georgia Street to the stairway leading to the plaza area in front of the Queen ElizabethTheatre.

Here he was in a lengthy confrontation face to face with the police, depicted in videos filed as exhibits. Several other citizensattempted to persuade him to leave the area, to no avail. He was eventually moved up the stairs and partway through the plaza, theconfrontation continuing the whole time. At this point Heather Kennedy, a civilian who happened to be present, tried to pull Makrisaway from the police; he responded by pushing her to the ground.

After this incident the police advised Makris he was under arrest, buthe managed to leave the scene and headed west. [24] Makris was next seen several blocks west on Seymour Street beside the Hudson Bay Company. The burning and destruction ofthe three vehicles previously mentioned was just beginning. Makris walked up to the BMW M5 and pushed against it, assisting others intheir efforts to overturn the vehicle. The BMW was eventually completely destroyed by fire and was a total loss. [25] Makris was then seen breaking into the Hudson’s Bay Company.

It was about ten o’clock, some two hours after the riot hadstarted. Makris and several others broke into the business through the employee entrance doors when another rioter had gained entryelsewhere and opened the doors for the other intruders. The rioters were very quickly chased back out of the store by employees whowere spraying fire extinguishers at the rioters.

As noted earlier, however, hundreds of other rioters gained entry elsewhere and lootedthe store, contributing to the massive damage suffered by that company. [26] Later that night, about two blocks further west and now approximately four hours after the riot had started, Makris was seenwith a crowd as they confronted police officers by erecting a barricade made of metal construction fencing in order to stop the policefrom dispersing the rioters. Makris had pulled up his shirt to cover the bottom portion of his face. [27] Exhibit 4 in these proceedings, Impact of the Riot, gives a

summary of what occurred during the riot. 1035 emergencypersonnel were deployed to the downtown core of Vancouver including Vancouver Police, RCMP, Fire Services and AmbulanceServices. Because of danger to ambulance attendants within the riot area the regular units had to withdraw and leave six special tacticalattendants to deal with emergency situations. There were 150 emergency room visits at St. Paul’s Hospital and a further 100 patientsdealt with in a special decontamination area to deal with tear gas and pepper spray cases.

The police recorded 26 arsons, 193 mischiefs,26 break and enters, 52 assaults and 116 arrests. 112 businesses were damaged, 122 vehicles damaged or destroyed, and there was atotal monetary loss in excess of $3,778,190.52. Crown’s Submission [28] Mr. Porte on behalf of the Crown submits that two important principles apply to these proceedings – social responsibility andthe rule of law. Those principles require that general deterrence and denunciation be emphasized and therefore a sentence of at leasttwelve months in jail is required.

The Crown is opposed to anything less than institutional incarceration and in particular is opposed to aConditional Sentence Order. [29] In determining the appropriate sentence the Crown says to look to four issues: the context of the riot, the accused’sparticipation, the principles in

Section 718 and 718.2 of the Criminal Code, and the accused’s personal circumstances. The Context of the Riot [30] The context of the riot is important, says the Crown, and cites Regina v. Dickinson, 2012 BCPC 40 , [2012] B.C.J.314, where at paragraph 16, MacLean J. says, One must consider the offender’s actions as part of a riot to determine his degree of moral culpability. The offender is inextricablylinked to others who participated in the riot. He must be sentenced as a participant in the riot and his particular acts should not beconsidered in isolation. Mr.

Dickinson’s participation in the destructions of the police vehicles, being acts of a riot, must be consideredin this context of the riot as a whole. R. v. Breault, [1991] J.Q. No. 1204; R. v. Blackshaw,

(2011) EWCA Crim 2312. [31] Mr. Porte points out the observation of our Court of Appeal in R. v. Loewen, (BC CA), (1992) 75 CCC (3d)184, BCCA, where at paragraph 12 the court concluded, “His actions encouraged others to take

part in the riot.” [32] He also cites R. v. Fuller, 1995 J.E. 95-1118, (Que Mun Ct), where at paragraph 45 & 46 the court says: But there is more. At 12:10 pm Officer Apestiquy sees the accused jump on top of a garbage can, pull at the “ONE WAY’ sign anddisplay a smile after succeeding in his attempt to take the sign from the pole at the St. Marc and Ste. Catherine intersection. 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 relativeminor 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, fervor, intimidation and dangerousness of the lawful assembly. [ 33 ] Finally, concerning the context of the riot, Mr. Porte refers to the recent compendious case of the English Court of Appeal dealing with various riot offences that occurred in early August of 2011. In Regina v. Blackshaw et al , [2011] EWCA Crim 2312 Times, the court said beginning at paragraph 5: 5 . This is not new found sentencing policy.

In the context of a riot in Cambridge some 40 years ago, this court observed: "When there is wanton and vicious violence of gross degree the court is not concerned with whether it originates from gang rivalry or from political motives. It is the degree of mob violence that matters and the extent to which the public peace is broken… Any participation whatever, irrespective of its precise form, in an unlawful or riotous assembly of this type derives its gravity from becoming one of those who by weight of numbers pursued a common and unlawful purpose.

The law of this country has always leant heavily against those who, to attain such a purpose, use the threat that lies in the power of numbers… In the view of this court, it is a wholly wrong approach to take the acts of any individual participator in isolation. They were not committed in isolation and, as already indicated, it is that very fact that constitutes the gravity of the offence." ( R v Caird [1970] 54 Cr. App. R 499 at 506 .) 6 . This approach reflects consistent sentencing policy for many years and continues in force today. 7 .

The broad submission on behalf of each appellant is that the sentences passed on the individual offender for his or her individual offence were disproportionately severe. If the court were dealing with a single isolated offence, that submission would have considerable force.

If, for example, a young man went down a quiet street in the middle of a town miles away from any rioting, but at a time when rioting was occurring miles away elsewhere, and broke into shop premises and there, without causing any damage, stole some cigarettes, and then left the premises, for the unfortunate shopkeeper to discover on the following morning that he had been burgled, the case would be serious enough.

It would properly be dealt with in accordance with sentencing principles as the offence that it was, an offence without the aggravating feature that the offence formed part of the mob criminality which produced the public disorder. 8 . It is elementary that sentencing courts cannot ignore the context in which the crime or crimes for which sentence is to be passed was committed. It is an essential feature in the assessment of culpability. In some cases, the context would provide the most powerful mitigation, for example, a genuine mercy killing as a final act of love and devotion.

In other cases, including the present appeals, the context hugely aggravates the seriousness of each individual offence. None of these crimes was committed in isolation. Eight of them were intrinsic to or arose from the widespread lawlessness and two more were intended to contribute to or aggravate it at a time when the disorders were at their most disruptive and alarming. 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.

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". The actions were deliberate, and each knew exactly what he (and in one case, she) was doing. Accused’s Participation [ 34 ] Mr. Porte summarized the accused’s participation in the riot.

He said that he rioted actively for four hours, starting at the very beginning of the riot at about eight o’clock. At this time two vehicles were put to fire and the accused kicked several items into the fire. At the second of these vehicles, the accused assaulted Easterbrook who was trying to prevent the damage to the vehicle.

This assault began with an attack by the accused and another, and developed into a “swarming” by several of the rioters. [ 35 ] The accused then became verbally abusive to the police over a lengthy period, taunted them in a television interview, and then moved to the location where he participated in the break-in at the Hudson’s Bay Company. Finally he moved some distance away, past

the Hudson’s Bay Company to Howe Street where he was involved in setting up fencing to stop the police. During this latterinvolvement, the accused now had his face covered, apparently to prevent identification. Denunciation and Deterrence [36] The Crown submitted that denunciation and general deterrence are the two sentencing principles that must be emphasized incases of rioting. With regard to the former, Mr. Porte cited the Supreme Court of Canada in R. v.

M. (C.A.), (SCC),[1996] 1 S.C.R. 500, where at paragraph 81 the court said: Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation. Retribution requires that a judicialsentence properly reflect the moral blameworthiness of that particular offender. The objective of denunciation mandates that a sentenceshould also communicate society's condemnation of that particular offender's conduct.

In short, a sentence with a denunciatory elementrepresents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code ofvalues as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App. R. 74, atp. 77: "society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can showthis is by the sentences they pass".

The relevance of both retribution and denunciation as goals of sentencing underscores that ourcriminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasingthe cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A sentence whichexpresses denunciation is simply the means by which these values are communicated.

In short, in addition to attaching negativeconsequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set ofcommunal values shared by all Canadians as expressed by the Criminal Code. [37] Concerning general deterrence he cited Regina v.

Blackshaw et al, [2011] EWCA Crim 2312 Times, where at paragraph 4 thecourt said: There is an overwhelming obligation on sentencing courts to do what they can to ensure the protection of the public, whether in theirhomes or in their businesses or in the street and to protect the homes and businesses and the streets in which they live and work. This isan imperative. It is not, of course, possible now, after the events, for the courts to protect the neighbourhoods which were ravaged in theriots or the people who were injured or suffered damage.

Nevertheless, the imposition of severe sentences, intended to provide bothpunishment and deterrence, must follow. It is very simple. Those who deliberately participate in disturbances of this magnitude, causinginjury and damage and fear to even the most stout-hearted of citizens, and who individually commit further crimes during the course ofthe riots are committing aggravated crimes. They must be punished accordingly, and the sentences should be designed to deter othersfrom similar criminal activity. [38] Further concerning general deterrence the Crown cites two cases of our Court of Appeal. First, in R. v.

Loewen, (BC CA), (1992) 75 CCC (3d) 184, BCCA, at paragraph 9 the court observes: Care must be taken at the same time to preserve the message of general deterrence. [39] And at paragraph 13 the court says: Taking into account all the foregoing circumstances I am of the view that in this case the sentencing principle of not imposing a custodialsentence upon a first time offender must yield to the imposition of a custodial sentence that will recognize the principle of generaldeterrence. [40] In Regina v.

Peepre, 2013 BCCA 115, our Court of Appeal endorsed the many decisions of this court that have emphasizedgeneral deterrence when imposing sentences for involvement in the Stanley Cup Riot. [41] In regard to the need for general deterrence, the Crown filed as Exhibit 5 in these proceedings a list of riots during communitygatherings in Canada which for the past 25 years included the following: 1. 1986 – Kelowna, BC – Regatta Festival riot 2. 1986 – Montreal, PQ – Stanley Cup Riot 3. 1991 – Penticton, BC – Peach Festival Riot 4. 1993 – Montreal, PQ – Stanley Cup Riot 5. 1994 – Vancouver, BC – Stanley Cup Riot 6. 1996 – Montreal, PQ – Fete National Riot 7. 1997 – Montreal, PQ – Fete National Riot 8. 1997 – Parksville, BC – Sandcastle Competition Riot

9. 2001 – Edmonton, AB – Canada Day Riot 10. 2006 – Edmonton, AB – Stanley Cup Riot 11. 2008 – Montreal, PQ – Stanley Cup Riot 12. 2010 - Montreal, PQ – Stanley Cup Riot 13. 2011 - Vancouver, BC – Stanley Cup Riot 14. 2012 – London, Ont. – St. Patrick’s Day Riot [ 42 ] Finally, concerning general deterrence, the Crown submits that one of the most serious aspects of Makris’s participation in the riot was his acts of arson and that for offences of arson, general deterrence has been held to be the primary sentencing concern: Regina v. Engler , [1994] BCWLD 2464, (BCCA) , Regina v.

Deen , [1997] BCJ no. 2657 (BCCA) , and Regina v. Cootes , [2011] BCCA 398 (BCCA). [ 43 ] The involvement by Makris in lighting vehicles on fire risked the lives of those present and his actions, including even seemingly innocuous acts of video recording of other rioters lighting the fires, encouraged the others to commit those crimes. [ 44 ] The Crown says that it was additionally aggravating that in the case of Makris, he was involved in more than one discrete criminal act when participating in the riot.

Not only were the arsons serious, but the assaultive behaviour toward at least three individuals was aggravating. The break and entry and the masked face were also aggravations of his involvement. [ 45 ] Mr. Porte then discussed many cases similar to the present where there was a relatively young adult offender, often with no criminal record, who had engaged in a riot by committing various criminal acts. Mr.

Porte demonstrated and I conclude that these cases show a range of sentence generally indicating incarceration from 45 days to 18 months, but including a few cases of Conditional Sentence Orders and suspended sentences at the lower end of the range. [ 46 ] The B.C. Court of Appeal examined this range in the decision of Regina v. Peepre , 2013 BCCA 115 , and endorsed the sentencing range that is apparent from the many cases where this court has dealt with the Stanley Cup Riot.

The Court of Appeal said, at paragraph [30]: These comparator cases disclose that, generally speaking, first time offenders (meaning those with no criminal record) will nevertheless receive 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. [ 47 ] Several of the Stanley Cup riot cases are cited following that statement and the court continues: This list of aggravating factors is not intended to be exhaustive.

It seems to me as a broad proposition such aggravating factors should generally lead to a longer prison term and not a conditional sentence served in the community, subject always to an individual’s personal circumstances. [ 48 ] Mr. Porte concluded his submissions by saying the present case is not at the lower end of the range because virtually all of the aggravating factors listed by the court in the Peepre Case are present – Inciting (encouraging) others, additional criminal activity such as assault, arson, wearing a mask, and committing multiple criminal acts in multiple locations.

Defence Submission [ 49 ] Mr. Baker stated at the outset that he believes a Conditional Sentence Order of two years less a day would serve the purposes of this case.

In the alternative, if the Court concluded that a sentence to be served in an institution was required, then he asked the Court to consider a sentence of 30 to 90 days, permitting the imposition of an intermittent sentence, with probation and a significant amount of community work service to follow. [ 50 ] It is the defence position that Makris was very intoxicated at the time of the riot and because of what was for him a rare occurrence, he behaved completely out of character. As a demonstration of this Mr. Baker pointed out that prior to assaulting Easterbrook, Makris appeared to be quite friendly toward him.

Because of his impairment, Makris could not respond rationally to situations or as Baker said, “... perceived different people in different ways.” For a reason Makris cannot now explain, he initiated the attack against Easterbrook. Interestingly, Makris and Easterbrook encountered each other months after the riot and were quite amicable, with Makris apologizing to Easterbrook. [ 51 ] In the video clips presented in evidence by the Crown, Mr. Baker admitted that Makris appeared as a “drunken, angry individual” – he gave as an example the interview where he made the outrageous comments to the news reporter.

He asserted that Makris was “clearly out of his mind” because of the amount of vodka and beer he had consumed, and continued to consume throughout the riot. According to the defence, this was very unusual for Makris and should be viewed as an isolated incident because “... drinking is something that you can stop.” Makris has apparently stopped drinking since these events. [ 52 ] In concluding his request for a Conditional Sentence Order Mr. Baker stressed the following points in mitigation. Makris is a relatively youthful first offender – quite different from many offenders before this court.

He is remorseful, having expressed this in

interviews with a probation officer and by offering an apology to the victim of his assault. Since the riot he has resumed being a responsible citizen, maintaining steady employment. In addition, he has continued with his almost exemplary record of community service. He does not abuse alcohol or drugs, nor does he have any psychological disorders. He is not dangerous to the public. His offences were committed while he was very much under the influence of alcohol and involved no premeditation. Background of Accused [ 53 ] Makris was born on August 31, 1984 in Victoria, B.C. and is therefore now 29 years old.

He lived in Victoria until the age of five when his parents separated and he moved with his mother to Ottawa. [ 54 ] He described his early family years as chaotic and abusive, his father being “an angry violent Greek man” who would abuse his mother and half-siblings. He remained in Ottawa with his mother for five years until the two of them moved to Greece where he took the rest of his schooling, returning to Canada to take his university in Vancouver where he got his B.A. at UBC in 2006.

He has lived in this area for more than a decade. [ 55 ] Makris maintains a close relationship with his mother even though she is resident in Ontario. His relationship with his father has always been very difficult and he has very limited contact with his half-siblings. [ 56 ] Makris has been in a relationship with Claire Wilson for the past five years, living together for the past two years. She is studying naturopathic medicine. She has written a positive letter of support for these proceedings. [ 57 ] Makris reports a consistent record of employment. While in university he worked in Greek restaurants.

After university he worked as a guide in the eco-tourism industry for a number of years. For the past two years until recently he was employed by Vanglo, a renovation and light construction company. He has recently taken similar employment with Reno King. Both of his previous employers in eco-tourism and at Vanglo give him good references, describing him as hardworking, trustworthy, diligent and kind. [ 58 ] Makris also has a lengthy history of volunteer work in the community. In 2004 he spent several months in Afghanistan as a volunteer teaching information technology for a United Nations organization.

In 2010 he spent several months in Palestine and Israel doing the same. He did volunteer work for five years giving lectures and tours for a non-profit ecological organization and for several years has volunteered his time for the Victoria Greek Food Festival. [ 59 ] In addition, Makris provides wellness services and support to Ms. Haidee Virgo, a woman with significant physical challenges. This commitment is for several hours a week and he has been doing this since well prior to the riot. [ 60 ] Ms. Virgo, Makris’ previous employers and his partner, Ms. Wilson, describe him as non-aggressive and peace loving.

They see his behaviour at the riot as being entirely out of character. Analysis [ 61 ] I will begin with a recitation of the following provisions of the Criminal Code of Canada: 718. 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. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or

(

v) evidence that the offence was a terrorism offence shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [ 62 ] In

summary,

Section 718 of the Criminal Code directs that sentencing an offender has the following purposes – to denounce unlawful conduct; to deter the offender and other persons from committing offences; to separate offenders from society, where necessary; to assist in rehabilitating offenders; to provide reparations for harm done to victims or to the community; and to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

In addition the courts have determined that there are other considerations in sentencing, such as retribution as will be discussed in the Proulx Case that will be quoted below. [ 63 ] Each of these sentencing considerations is given varying weight, depending on the type of offence, the seriousness of the offence, and the circumstances of the offender. I am satisfied that in this and related cases arising from the Vancouver Stanley Cup riot the principles of denunciation and general deterrence must prevail over all other concerns.

At the same time, in this particular case, the court cannot lose sight of the concern for rehabilitation of the accused. [ 64 ] Notable in this list is the requirement to pay special heed to all available sanctions other than imprisonment that are reasonable in the circumstances. In this regard I may consider probation, community work service, and reparations for harm done to victims or to the community.

The court may use a Conditional Sentence Order to effect restorative justice in this way. [ 65 ] With regard to general deterrence and how that might be facilitated by a Conditional Sentence Order I am mindful of the case of Regina v. Proulx , [2000] SCC 5, at the following paragraphs: 82 This Court has held on a number of occasions that sentencing is an individualized process, in which the trial judge has considerable discretion in fashioning a fit sentence.

The rationale behind this approach stems from the principle of proportionality, the fundamental principle of sentencing, which provides that a sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender. Proportionality requires an examination of the specific circumstances of both the offender and the offence so that the “punishment fits the crime”. As a by-product of such an individualized approach, there will be inevitable variation in sentences imposed for particular crimes.

In M. (C.A.) , supra , I stated, at para. 92: It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. . . . Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.

As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred. 90 First, a consideration of ss. 718.2 (

d) and 718.2 (

e) leads me to the conclusion that serious consideration should be given to the imposition of a conditional sentence in all cases where the first three statutory prerequisites are satisfied. Sections 718.2 (

d) and 718.2 (

e) codify the important principle of restraint in sentencing and were specifically enacted, along with s. 742.1, to help reduce the rate of incarceration in Canada. Accordingly, it would be an error in principle not to consider the possibility of a conditional sentence seriously when the statutory prerequisites are met.

Failure to advert to the possibility of a conditional sentence in reasons for sentence where there are reasonable grounds for finding that the first three statutory prerequisites have been met may well constitute reversible error. 102 Denunciation is the communication of society's condemnation of the offender's conduct. In M. (C.A.) , supra , at para. 81 , I wrote: In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law.

As Lord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App. R. 74, at p. 77 : “society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass”. Incarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a more lenient sentence than a jail term of equivalent duration. That said, a conditional sentence can still provide a significant amount of denunciation.

This is particularly so when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances. I will discuss each point in turn. 105 The stigma of a conditional sentence with house arrest should not be underestimated. Living in the community under strict conditions where fellow residents are well aware of the offender’s criminal misconduct can provide ample denunciation in many cases.

In certain circumstances, the shame of encountering members of the community may make it even more difficult for the offender to serve his or her sentence in the community than in prison. 109 While incarceration may provide for more denunciation and deterrence than a conditional sentence, a conditional sentence is generally better suited to achieving the restorative objectives of rehabilitation, reparations, and promotion of a sense of responsibility in the offender. As this Court held in Gladue , supra , at para. 43, “[r]estorative sentencing goals do not usually correlate with the use of prison as a sanction”.

The importance of these goals is not to be underestimated, as they are primarily responsible for lowering the rate

of recidivism. Consequently, when the objectives of rehabilitation, reparation, and promotion of a sense of responsibility mayrealistically be achieved in the case of a particular offender, a conditional sentence will likely be the appropriate sanction, subject to thedenunciation and deterrence considerations outlined above. [66] The need for general deterrence in this case is indicated by the cases of Regina v. Blackshaw et al, [2011] EWCA Crim 2312Times and R. v. Loewen, (BC CA), (1992) 75 CCC (3d) 184, BCCA.

And every other case cited by counsel dealingwith sentence on a riot charge confirms that emphasis must be given to general deterrence. [67] The same must be said of denunciation – the two principles go hand in hand in every such case. A good example ofdenunciation that would be equally appropriate in the case of Makris is seen in the case of Regina v.

Post, [1991] BCSC, unreporteddecision of Oliver J. where in the second paragraph of that case the court states: It is a monstrous thing that in this peaceful community citizens should be terrorized; retired people should be put in fear; small businessoperators should face vast expense for damage to their premises; tourists, upon whom the economy in large measure depends, should bescared away; damage should be done to civic property, and the property of all of the people of Penticton, by gangs of yahoos andhooligans who in their thousands believe this to be acceptable conduct. It is not.

The people of Penticton are entitled to look to thecourts for protection. If rioting is to be unrestrained and unpunished, violence and mob rule will replace peaceful government. It must be clearly understood that participation in a riot such as this will inevitably result in substantial terms of imprisonment. [68] A more recent example can be found in the case of Regina v. Yates, (2012 BCPC 250 , 2012 BCPC 0250), where LowJ. of this court, commenting on this same riot, said at paragraph [11]: ... it is an enormous understatement to describe the scene of mayhem and gross public disorder as shocking.

The crowd was composedalmost entirely of young men and women, like Mr. Yates, who seemed to have completely lost sight of who they were, who the policewere, and that they were destroying the community and the neighbourhood of downtown Vancouver. [69] In order to gauge the emphasis to be given to general deterrence and denunciation in each particular riot case the court mustassess the seriousness of each such offence.

To do that it is necessary to put the offence of the accused in the context of the riot as awhole; I accept the Crown’s submission in that regard. [70] The Vancouver Stanley Cup riot was extremely serious. A massive crowd, moving through the large metropolitan downtowncore, endangered the lives of thousands of persons who were in innocent occupation of their city. As I noted in the Dorosh Case therioters left a wake of enormous property damage – the rioters simply trashed much of the downtown area of the city.

In addition to thephysical damage there was painful psychological damage to many of the victims and lasting injury to the pride and reputation of the cityitself. [71] Each of the participants in the riot must take some responsibility for the totality of the riot as well as responsibility for theirindividual acts. I accept the submission that the acts of individuals had the effect of encouraging those who were like-minded. Thus, inthis case, it may have occurred to Makris to throw inflammable material onto burning vehicles because he saw others doing the same.

His acts would have inspired others who saw him, and the chaos continued, and even grew. [72] Makris was apparently not the first to try to ignite any of the vehicles on fire but made his attempt after others had done that. Itappears that yet others continued with the enterprise until the vehicles were finally destroyed.

Makris bears some responsibility for hispart in continuing the criminal endeavour that resulted in the ultimate destruction of the vehicles. [73] I also conclude that I must consider the seriousness of the related substantive offences Makris committed in determining theseriousness of his acts of taking

part in a riot. That is to say, I do not accept that because his offence has a maximum sentence of twoyears that alone determines the seriousness of his offence. Each offence of rioting must be viewed in the context of exactly what acts theaccused engaged in to contribute to the riot.

Attempting to commit arson and break and entry, each individually very serious offenceswith more significant maximum sentences than rioting simpliciter, aggravate the seriousness of Makris’s involvement. [74] My assessment concerning the seriousness of these matters is that the Vancouver Stanley Cup Riot was “a monstrous thing”, toecho the previously quoted comments of Oliver J. The participation by Makris was very serious, well into upper range of seriousness foroffences under

Section 65 of the Criminal Code and certainly one of the most serious cases in this particular riot. He was there at thestart of the riot and remained for the whole four hour period until the very end. He fully participated in almost all aspects of the riotexcept perhaps looting businesses. He was confrontational with the police and other peace makers throughout and he was physicallyaggressive when confronted himself. His acts encouraged others to commit criminal offences and regularly went beyond encouragementto participate himself in acts of arson, assault, and break and entry.

All of this requires that the court give very particular attention togeneral deterrence and denunciation. [75] In looking at comparator cases, and there are now many, it is apparent that Makris’ involvement in the Stanley Cup Riot wasthe most serious of any case heard so far. It is difficult to imagine how any rioter could have been more involved in the mayhem, shortof committing much more serious substantive criminal offences such as offences of grievous bodily harm. [76] I will refer to what appears to be the next most serious case (so far) as a comparator. In Regina v.

Yates, Low J. of this court(2012 BCPC 250 , 2012 BCPC 0250) similarly dealt with a young adult with no criminal record. Yates was guilty of taking partin the riot and assaulting a police officer. In particular, Judge Low noted that Yates was there at the beginning of the riot. He was not

involved in setting the two vehicles ablaze, but he was in the crowd confronting the police. He spat on one police officer and threw a bottle, striking another police officer. He was seen using an iron pipe to smash windows at the Canada Post building and later doing the same at the Hudson’s Bay store. He was also seen throwing a mannequin on one of the vehicles that was destroyed by fire on Seymour Street. [ 77 ] There is no equation that purports to compare the turpitude of any two cases. Both Makris and Yates were part of a crowd, actively “cheerleading” while others committed actual criminal offences.

Yates assaulted two police officers while Makris assaulted three civilians, but Makris also engaged in angry prolonged confrontations and taunting of the police. Makris was involved in the arson of three vehicles at two locations, while Yates only one vehicle, but he smashed windows at two locations with a pipe. [ 78 ] Makris was still there at the end of the riot with his face masked, helping build a barrier to foil the police – his involvement was from the beginning to the end of the riot.

But what really sets Makris’ case apart from most others was his commitment, at times almost a frantic commitment, to the mayhem. He consistently attempted to frustrate the police and others who were trying to stop the riot. His statement to the reporter, “Bring it on, Motherfuckers”, speaks volumes concerning his state of mind. [ 79 ] In the Yates Case Judge Low said in paragraph [13] “I agree with Crown and defence that the primary concern in sentencing Mr.

Yates must be general deterrence. … the only fit sentence I can consider is an institutional prison sentence.” [ 80 ] In the next paragraph Low J. dismisses the possibility of a conditional sentence order – “… such a sentence would not properly address the fundamental purpose and principles of sentencing set out in the Criminal Code , and in particular would not properly address the need for general deterrence in the particular circumstances of Mr.

Yates’ offending.” [ 81 ] I am satisfied that specific deterrence and protecting the public from Makris are not concerns in this case – he is a bright young man and will surely learn his lesson from any sentence that must be imposed at this time and from the consequences and embarrassment he has experienced so far.

I am also satisfied that reparations are not realistic in this case – the damage caused to the burned out vehicles was enormous and well beyond Makris’ limited means. [ 82 ] In looking at mitigating circumstances that support the defence application for a non-institutional sentence, I accept most of what Mr. Baker has put forward as mitigation. Makris is a first offender. He is somewhat remorseful, not having turned himself in to the police but having apologized to one of his victims and having instructed counsel to proceed with a guilty plea at an appropriate time.

Since the occasion of the riot he has continued to be a responsible citizen, maintaining steady employment and an almost exemplary record of public service. He does not abuse alcohol or drugs, nor does he have any psychological disorders. He is not dangerous to the public. His offences involved no premeditation, although they did occur over a considerable period of time when Makris had time to reflect on what he was doing and cease his illegal activities. [ 83 ] I stated that I accepted most of what Mr. Baker said in mitigation. Mr.

Baker made it clear that he did not offer the intoxication of the accused as an excuse for his actions, but as an explanation. I must conclude, however, that Makris’ state of intoxication from alcohol was not what Makris wants to believe. In the very considerable video footage filed as exhibits, Makris can be seen walking, running, jostling and taking hold of others, shooting his own video footage, and kicking and throwing items, among several other physical acts depicted.

In none of these images does he appear to have any physical difficulty or the “usual signs of impairment” such as swaying, stumbling, or erratic walking. The video also shows the previously mentioned interview where Makris talks to a reporter. He is responsive and alert, showing no signs of slurring of the speech or any noticeable symptoms in his features. He was certainly animated, and even histrionic, but it must be concluded there was little or no indication of alcohol impairment.

That of course leaves one wondering how an otherwise responsible, bright young man with no criminal record could suddenly exhibit such behaviour. [ 84 ] In dealing with the mass of Stanley Cup Riot cases it is important to keep in mind Criminal Code

Section 718.2 (b) - a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. In general the range of sentences for such persons has been 45 days to 18 months in jail. Those sentences have been imposed in similar circumstances, although as I noted earlier it is difficult to compare riot cases with each other. It is perhaps easier to discern contrasts as can be seen below. [ 85 ] If one were just considering the assault of Easterbrook and the background of Mr.

Makris the lower end of the range including a conditional sentence order might be considered. But the added aspects of his involvement in the various arsons, the confrontations with police, the break and entry of the Hudson’s Bay Company, and the incidents that followed takes Mr. Makris’ turpitude to a much higher level. I must conclude that the seriousness of Makris’s involvement does not permit consideration of a Conditional Sentence Order – it would send the wrong message to the public and not effectively denounce Makris’s conduct.

In fact, my assessment is that because of the aggravating aspects of the case the indicated sentence is at least that sought by the Crown; a sentence of a year or more in jail could be entirely justified as generally indicated before consideration is given to Makris’s personal circumstances. [ 86 ] I have in mind that the remorse of the accused, his guilty plea, and his general good record of responsibility as a citizen for many years mitigates the situation and permits consideration of a lesser sentence.

This has been done in the comparator cases. [ 87 ] I therefore sentence him to eight months imprisonment, concurrent on each of the two counts. [ 88 ] I am not imposing probation. Substance abuse counselling of any type is not indicated and Makris should be permitted to serve the sentence and conclude the matter. I will waive the Victim Fine Surcharge because of the imposition of a jail sentence. I conclude I must make an order for the taking of a DNA sample in the usual form – that will be done while the accused is in custody. ____________________________________ The Honourable Judge W.J. Kitchen

Provincial Court of British Columbia