R. v. Fisher and Milne Date:, 2016 BCPC 39

Citation: R. v. Fisher and Milne Date: 20160219 2016 BCPC 0039 File No: 223623-2-VC; 223707-C2 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. WILLIAM RYAN FISHER and JEFFREY RUSSELL JEAN MILNE REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: P. Tomasson, D. Porte Counsel for W.R. Fisher : M. Foster

Counsel for J.R.J. Milne: C. Muldoon Place of Hearing: Vancouver, B.C. Dates of Hearing: January 28; February 5, 2016 Date of Judgment: February 19, 2016 INTRODUCTION [1] The offenders were convicted of committing a number of offences during the Stanley Cup riot of June 15, 2011. Mr. Fisher hasalso pled guilty to breaching his bail and failing to remain at the scene of an accident. [2] A sentencing hearing was held on January 29, 2016 and on February 5, 2016. The task for the Court is to identify a fit andappropriate sentence.

BACKGROUND [3] On June 15, 2011, the Vancouver Canucks hockey team played game seven of the Stanley Cup final against the BostonBruins. The event triggered a significant amount of public interest and in response a viewing area was set up, the “live site”. [4] The live site was fenced and it contained large television monitors wherein the general public could watch the game. It isestimated that 55,000 people watched the game in this area, while a further 100,000 people gathered in various locations in thedowntown core of Vancouver. [5] Shortly before the game ended, the crowd started to become agitated.

People started yelling and shouting, things were thrownat the television screens and minor property damage started to occur. Things quickly escalated and people started turning vehicles overand setting fires. Thereafter, the downtown core erupted into a riot lasting approximately five hours. [6] During the riot numerous acts of violence, destruction, and theft were committed. In large part these acts were committed bypersons who prior to that evening had never been involved with the criminal justice system. [7] In response to the riot, 1035 Emergency Responders were deployed.

A record number of 911 calls were received. There werenumerous acts of assault, theft and vandalism with 112 businesses being damaged and 122 vehicles being damaged or destroyed. [8] It is estimated that the monetary loss associated to the riot was 3.7 million dollars. The damage to the sense of securityenjoyed by the residents, workers and visitors cannot be quantified, nor, can one quantify the damage done to the city’s reputation. [9] Several judges have described the riot. In R. v.

Makris, 2013 BCPC 239 , 2013 BCPC 0239, at para. 70, theHonourable Judge Kitchen, as he then was, described the riot as: … A massive crowd, moving through the large metropolitan downtown core, endangered the lives of thousands of persons who were ininnocent occupation of their city… [T]he riots left a wake of enormous property damage … [10] In R. v. Long (2012), Vancouver 223500-2-VC (Prov. Ct.), at para. 4, the Honourable Judge St. Pierre commented on the riotas: It was clearly one of the worst modern spectacles of civil disorder this province has known. [11] This Court in R. v.

Lau (November 5, 2012), Vancouver 223539 -3-VA (Prov. Ct.) commented, at para. 6: It would not be incorrect to observe that the rule of law was ignored in favour of destruction, violence and mayhem. [12] Finally in R. v. Brierley Von Zill (March 18, 2014), Vancouver 223623 -2VC (Prov. Ct.), the Honourable Judge Dhillon, at para.16, observed: Other judges have described the 2011 Vancouver riot as: The seriousness of participating in a riot cannot be understated. This is because during a riot the rule of law becomes non-existent forthe participants.

They are no longer guided by societal rules; they become guided by mob rules. It is the abandonment of those societalrules that leads to the loss of peace, order and ultimately, the protection of persons and property”: R. v. Lau (November 5, 2012)Vancouver 223529 (Prov. Ct.). ... The mob mentality is incendiary and destroys the fabric of civil society. It undermines the rule of law, and gives licence to those whoseek to perpetrate chaos and mayhem. ...For these reasons, participating in a riot is a very serious offence.

As noted in so many decisionsof this and superior courts ... the individual component of personal offending may be small, but the collective acts of violence anddestruction rob a democratic society of the value of safety, stability and serenity that comes [with] a collective adherence to the rule oflaw”: R. v. Coetzee, 2013 BCPC 208 at para. 48 citing R v. Chou, 2013 BCPC 23. THE OFFENDERS’ CONDUCT Mr. Fisher

Count 1 - Rioting [13] Mr. Fisher participated in the riot for approximately 2½ hours. During this time, he was active at multiple locations, hecommitted several criminal offences, he had his face masked, he committed three assaults, he ignored police direction, he confrontedpolice lines, and at times his actions contributed to inciting the crowd. Count 2 - Masking [14] At several points during the riot, Mr. Fisher masked his face with various articles of clothing. There is no doubt that Mr. Fisherwas trying to conceal his identity. Count 3 - Mischief to the Bank of Montreal [15] Mr.

Fisher kicked at the windows and threw a street barricade at the windows. Count 6 - Break and enter to Black and Lee and commit an indictable offence [16] With his face masked, Mr. Fisher ran into the business and exited shortly thereafter with an

article of clothing. Count 7 - Assault of Mr. Skogman [17] While outside of the Bay, Mr. Milne threw a portion of a street barricade at a window. When the barricade struck the window awoman who was standing in front of the window turned around and confronted Mr. Milne. Mr. Skogman then moved forward andstepped between the woman and Mr. Milne. At this point, Mr. Fisher approached Mr. Skogman from behind, grabbed his right shoulderand while moving forward he delivered three full force punches to Mr. Skogman’s face. Mr. Fisher then forced Mr. Skogman towardsthe ground and once down, Mr.

Fisher fled through the crowd. [18] The assault on Mr. Skogman was captured on video and it is shocking and difficult to watch. When Mr. Skogman wasassaulted, he was defenceless, he was not a threat to Mr. Fisher, and it is clear the force used was extreme. Fortunately and inexplicably,Mr. Skogman suffered minor injuries. Count 8 - Mischief to the Bay [19] Mr. Fisher kicked at the windows and he ultimately damaged a display. Count 9 - Break and enter to the Bay with the intent to commit an indictable offence [20] Mr. Fisher entered the Bay via a broken window exiting a short time later.

Count 12 - Mischief to Mego Luggage [21] Mr. Fisher delivered three kicks to a window. The kicks caused glass to fall from an adjacent broken window. It is clear thatMr. Fisher was trying to break the window. Count 13 - Mischief to Holt Renfrew [22] Mr. Fisher repeatedly struck a reinforced window with a pole. He also repeatedly kicked at the windows. The video showsthat Mr. Fisher was very focused on what was inside the store and his actions cumulatively support the notion that he was intent ongaining access to the interior of the store. INFORMATION 223707-2-C [23] Mr.

Fisher pled guilty to breaching his recognizance by being within his area restriction and failing to remain at the scene of anaccident in violation of s. 68 of the Motor Vehicle Act. Circumstances of the Offences [24] On February 28, 2013, Mr. Fisher was released on a recognizance of bail with a condition that he not be within an areaencompassing the 900 block of Granville Street. [25] On April 20, 2014, Mr. Fisher, in violation of his recognizance, went to a night club in the 900 block of Granville Street. [26] On April 21, 2014, Mr. Fisher was operating a motor vehicle that was involved in an accident.

Both air bags in his car deployedand the car suffered significant front end damage. Mr. Fisher drove away from the accident; he did so without stopping and exchanginginformation with the other driver. A passenger in Mr. Fisher’s vehicle asked him to stop and let her out and Mr. Fisher indicated he wastrying to get away. Mr. Fisher stopped approximately five blocks away from the accident location and he was arrested shortly thereafter. [27] Mr. Fisher remained in custody until he was released on April 28, 2014. As such and in accordance with R. v.

Summers, 2014SCC 26 , [2014] 1 S.C.R. 575, he is entitled to enhanced credit at a rate of 1.5 days for each day in custody. He will thereforebe credited with 12 days. Mr. Milne Count 1 - Rioting

[ 28 ] Mr. Milne participated in the riot for approximately 2½ hours. During this time, he was active at multiple locations, he committed several criminal offences, he had his face masked, he assaulted Mr. Leveille, he ignored police direction and at times his actions can be described as contributing to inciting the crowd. At one stage, Mr. Milne is at the front of a crowd of people advancing towards a police line on Granville Street. Count 2 - Masking [ 29 ] At several points during the riot, Mr. Milne covered his face with various pieces of clothing. There is no doubt he was trying to conceal his identity.

Count 3 - Mischief to the Bank of Montreal [ 30 ] Mr. Milne attacked and broke windows. During his attacks he used a hockey stick and a piece of metal fence connector. Count 6 - Break and Enter to Black and Lee and commit an indictable offence [ 31 ] With his face masked, Mr. Milne ran into the Black and Lee business and exited shortly thereafter carrying an

article of clothing. Count 8 - Mischief to the Bay [ 32 ] Mr. Milne threw the steel leg of a street barricade at a window. The barricade broke the window and almost hit a bystander. Count 10 - Mischief to an unmarked police vehicle [ 33 ] Mr. Milne watched as rioters damaged an unmarked police vehicle. Once the vehicle was on fire Mr. Milne threw an object into the backseat. Count 11 - Break and enter to Mego Luggage and commit an indictable offence [ 34 ] With his face masked Mr. Milne entered Mego Luggage and removed a backpack from a display rack. He then left the business.

Count 13 - Mischief to Holt Renfrew [ 35 ] Mr. Milne struck the windows with a pole. THE ASSAULTS - Counts 4, and 5 Count 4 - Assault, unknown male - Mr. Fisher and Count 5 - Aggravated assault, Mr. Leveille - Mr. Fisher and Mr. Milne [ 36 ] A target during the riot was the Budget-Rent-A-Car (the business) located on West Georgia Street. Protecting the business was an unknown citizen (the unknown male) who stood in front of the windows. After a short period of time he was joined by Mr. Leveille. [ 37 ] Shortly after being joined by Mr.

Leveille, the unknown male moved from the front of the business towards the east end of the building and out towards the roadway. Mr. Leveille moved in a similar fashion but at a few paces behind and at a slightly different angle. [ 38 ] As the unknown male stood near the edge of the side walk, Mr. Fisher, who was previously concealed by the crowd, approached the unknown male and without warning or provocation, punched the unknown male on two occasions. The punches were full force and done while Mr. Fisher was advancing. It appears from the video that the punches connected with the unknown male’s head or face.

The force of the assault knocked the unknown male backwards. [ 39 ] When the assault of the unknown male occurred, Mr. Leveille was nearby and moving forward. At this point Mr. Milne, whose face was masked, stepped forward from the crowd and punched Mr. Leveille in the face. The punch was full force and it occurred without warning or provocation. [ 40 ] The force of the punch caused Mr. Leveille to stumble backwards and fall. He landed in a seated position with his back against a building and his body slightly slumped. Then and while Mr. Leveille was defenseless, Mr.

Fisher moved forward and with the same motion as that of a football player kicking a football in the opening moments of a game, he kicked Mr. Leveille on the right side of his face. The kick was captured on video; the violence and the disregard for Mr. Leveille’s safety makes the video difficult to watch. [ 41 ] The force of the kick caused Mr. Leveille to fall unconscious onto his side. Mr. Milne then stepped up to Mr. Leveille’s motionless body, he raised his knee to near his chest and he stomped down on the side of Mr. Leveille’s rib cage. Mr. Milne brought his leg up a second time, however, a person whom Mr.

Milne had been with throughout the evening pulled him back. [ 42 ] The combined actions of Mr. Milne and Mr. Fisher resulted in Mr. Leveille suffering a punctured lung, as well as cuts and bruises. Fortunately, Mr. Leveille made it to the hospital where he was treated and discharged. After approximately a week, Mr. Leveille went to a medical clinic wherein his chest tubes were removed. He spent two months off of work and therefore he was unable to pay rent, hydro, and family maintenance obligations. Mr. Leveille provided a Victim Impact Statement and it has been considered by the Court.

VICTIM IMPACT STATEMENTS [ 43 ] The Court has reviewed the statements that were filed. The corporate victim statements address the financial losses incurred.

Also filed were statements from employees of the Bay. These statements speak to the confusion and fear of the night, as well as, the efforts that have been undertaken to assist the staff with the emotional trauma they experienced. OFFENDER CIRCUMSTANCES Mr. Fisher [ 44 ] Mr. Fisher is 31 years old. He was raised in the Fraser Valley where he enjoyed a supportive upbringing. While growing up, Mr. Fisher played a variety of sports and attended a local high school until reaching grade 10. [ 45 ] Upon reaching grade 10, Mr. Fisher left high school.

This was because he found the work difficult primarily due to his Attention Deficit Hyperactivity Disorder. Thereafter, Mr. Fisher worked as a labourer in the construction industry. At the time of sentencing, Mr. Fisher was no longer working in construction; rather, he was working on the family farm and living off of savings. [ 46 ] While a teenager, Mr. Fisher started using drugs and alcohol. At 20, it became obvious to Mr. Fisher that he had a problem with substance abuse. He received help from his family and was able to maintain a five year span of sobriety. [ 47 ] Upon reaching 25, Mr.

Fisher felt he could drink socially and it was this belief that triggered a relapse of drug and alcohol abuse. On the night of the riot, Mr. Fisher was under the influence of alcohol and drugs. Since April of 2014, Mr. Fisher has been sober and he has been attending Narcotics Anonymous. [ 48 ] With respect to his conduct on the night of the riot, Mr. Fisher explained to the writer of his Pre-Sentence Report that he was caught up in the moment and associating with the wrong people. He regrets his actions and he is remorseful. [ 49 ] Letters of support were filed. Mr.

Fisher’s parents confirmed his struggle with alcohol and drugs and the efforts that he has made to overcome his addiction. A letter from Mr. Fisher’s aunt confirmed that he has displayed remorse and that he displays a willingness to assist family members. A letter was also filed from his cousin, Carley Bakker, wherein she speaks to the changes that Mr. Fisher has made. She also confirmed her company is prepared to offer Mr. Fisher entry level employment. Mr. Milne [ 50 ] Mr. Milne is 24 years old and had just turned 20 when he committed the offences before the Court. Mr.

Milne was raised in Langley and enjoyed a supportive upbringing. When he was 10 years old, his step-brother was killed in a street fight. Mr. Milne’s parents divorced in 2009; his mother and sister live in Alberta. [ 51 ] At 14, Mr. Milne left high school. In 2009, he obtained his GED, and completed a two year plumbing program, as well as a first aid course and some business courses. Mr. Milne is now a certified plumbing apprentice. As a teenager, he held various jobs, and when he was 20 he moved to Alberta where he worked in the oil fields.

He currently works doing renovations and plumbing. [ 52 ] Shortly after the Stanley Cup riot, Mr. Milne moved to Calgary where he currently lives with his sister and her common law spouse. According to his counsel, Mr. Milne assists his disabled mother by doing things for her and by giving her money. [ 53 ] Several letters were filed on Mr. Milne’s behalf. The Court has difficulty placing great weight on the letters that were filed. This is because the majority of the writers speak to having known Mr. Milne for several years and suggest that his actions at the riot were not reflective of who Mr.

Milne was or who he is. One letter stated that Mr. Milne has never been in trouble despite hanging around a bad group of people. [ 54 ] The letters filed are contrary to the established facts: Mr. Milne has convictions for robbery, assault causing bodily harm and assault with a weapon. Nevertheless, it is accepted that subsequent to June 2011, Mr. Milne has made positive changes in his life. [ 55 ] Another letter which the Court has difficulty with is the letter from Mr. Milne’s mother, Wendy Lacey. In the letter dated February 2, 2016, Ms. Lacey fails to mention Mr.

Milne’s earlier convictions; she also outlines several courses that Mr. Milne has taken since the offences and she talks about Mr. Milne’s renovation company employing three to four people. [ 56 ] The facts stated in Ms. Lacey’s letter are inconsistent with other information presented to the Court. In this regard, some of the courses she referred to as Mr. Milne having completed after the offence appear to have been completed prior to the preparation of Mr. Milne’s 2009 Pre-Sentence Report. As for employing three to four people, counsel for Mr.

Milne and the recent Pre-Sentence Report, at page 14, indicate that Mr. Milne stopped his plumbing business and that he is working for Versatile Renovations. As such, Ms. Lacey’s suggestion that Mr. Milne employs three to four people is inconsistent with other information. [ 57 ] Mr. Milne’s criminal history is as follows: August 2009 - Impaired driving (youth) November 2009 - Robbery and assault causing bodily harm January 2010 - Assault with a weapon (youth) June 2011 - Breach of probation [ 58 ] At only 24 years old, Mr. Milne’s criminal history shows that he can and has been violent.

It is also significant that Mr. Milne was bound by Probation and an Undertaking when he committed the offences in issue. [ 59 ] Mr. Milne addressed the Court wherein he apologized for his actions and expressed genuine remorse.

POSITION OF THE PARTIES The Crown Mr. Fisher [ 60 ] The Crown argues the Court should impose a sentence in the range of four years and 10 months to six years. In this regard, the Crown argues a 90 day sentence for the assault on the unknown male, three to four years consecutive for the assault on Mr. Leveille, and one year consecutive for the assault of Mr. Skogman. Consecutive to these sentences the Crown seeks a six month sentence for participating in the riot with concurrent sentences for the masking, mischiefs, and break and enters.

All of which would be followed by a consecutive sentence of one to three months for the breach of his recognizance, served concurrently with a one day sentence for failing to remain at the scene of an accident. Mr. Milne [ 61 ] The Crown argues that a fit and appropriate sentence for Mr. Milne is a sentence in the range of five years and four months to six years. Specifically, the Crown argues Mr. Milne should receive four years for the aggravated assault on Mr.

Leveille and 16-24 months consecutive for participating in a riot to be served concurrently with the various sentences for the masking, mischiefs, and break and enters. Defence Counsel Mr. Fisher [ 62 ] Counsel for Mr. Fisher urges the Court to impose a global custodial sentence of 15 months to be served in the community followed by probation. Counsel argues all sentences imposed should be concurrent as per R. v. Blake and Timileck, (May 15, 2013), Vancouver 223606-1-V (Prov.

Ct.). [ 63 ] In support counsel relies on the range of riot sentences given for similar conduct and he places emphasis on Makris, supra , wherein he asserts that the conduct of Mr. Makris was more aggravated than that of Mr. Fisher. [ 64 ] Counsel distinguished the Crown’s sentencing authorities on sentences for aggravated assault and argued the sentence sought by the Crown is excessive. [ 65 ] Counsel also points out: Mr. Fisher does not have a criminal record, he is a not a violent person, he has taken steps to address his addiction, and he has the support of his family. Mr. Milne [ 66 ] Counsel for Mr.

Milne advances three alternative sentencing options.

First, he argues that a two year less a day term of imprisonment to be served by way of a conditional term of imprisonment followed by a lengthy period of probation would meet all the principles of sentencing. [ 67 ] In the alternative, counsel suggests a blended sentence of 10 months for all of the offences, followed by 13 months, 29 days for the aggravated assault, for a total sentence of two years less a day to be served by Conditional Sentence Order. [ 68 ] In the further alternative, counsel suggests a global sentence of 15 months, followed by a lengthy term of probation. [ 69 ] In support counsel highlights that Mr.

Milne is young and that he has rehabilitated himself without acquiring further offences. Counsel also points out that Mr. Milne has family members who rely on him and that he is a productive member of society who has the support of family and friends. [ 70 ] Counsel argues the authorities submitted by the Crown on the appropriate sentencing range for aggravated assault are distinguishable by, the severity of injury, the mechanism of the assault, and the circumstances of the assault.

RANGE OF SENTENCES FOR AGGRIVATED ASSAULT [ 71 ] Counsel submitted several cases in an effort to identify a sentencing range for the offence of aggravated assault. [ 72 ] The cases submitted by the Crown provide substantial guidance; however, the cases submitted have significant factual differences to the instant case. Specifically, in the cases supplied by the Crown a general observation is the injuries suffered were more serious, the degree of violence was greater, and the majority of the cases involved weapons and planning. [ 73 ] The Crown’s cases can be summarized as follows: [ 74 ] In R. v.

Biln, 1999 BCCA 369 , the offender’s appeal of a three year custodial sentence was dismissed. The offender was 50 years old, married, employed, and did not have a criminal record. The circumstances of the offence were: the offender had been escorted from a reception; he returned two hours later, dimmed the lights, and hit the victim twice in the back of the head with a crow bar. The victim suffered significant injuries. [ 75 ] In R. v. Craig, 2005 BCCA 484 , the Crown appealed the offender’s two year prison sentence after he was convicted of aggravated assault.

The offender was drunk and attacked his former spouse with a knife causing serious injuries. In allowing the appeal and increasing the sentence to an effective period of three years, the Court at para. 10 commented on the range of sentences for the offence of aggravated assault:

[10] It is not disputed, and it appears clear on the cases, that a sentence of two years' imprisonment for the commission of aggravatedassault (which is the sentence that was effectively imposed by the judge) is at the low end of the range of sentences imposed on similaroffenders in similar circumstances (R. v. Chana (1998), (BC CA), 115 B.C.A.C. 159, [1998] B.C.J. No. 2458 (Q.L.)(C.A.) at para. 6).

The range of sentence for similar offences was described as being between 16 months and six years in R. v.Johnson1998 4838 (BC CA), (1998), (BC CA), 131 C.C.C. (3d) 274 (B.C.C.A.), two years less a day to six yearsin R. v. Biln, 1999 BCCA 369, 1999 BCCA 369, and, most recently, between 18 months and six years in R. v. Willier, 2005 BCCA 404,2005 BCCA 404.

In determining an appropriate sentence within this broad range, an unprovoked attack with a weapon tends to result inthe imposition of a sentence at the higher end while a consensual fight that has escalated with resulting injury tends to result in a sentenceat the lower end. See in particular: R. v. Willier, at para. 22, and R. v. Johnson, at para. 10. [76] In R. v. Nolan, 2001 BCCA 35, the offender’s appeal of a four year custodial sentence was dismissed. The offender was 21years old when he had an altercation with a stranger. The stranger ran away and the offender chased after him.

The stranger fell and ashe lay on the ground the offender plunged a 10 inch knife into his chest. [77] In R. v. Irwin, 2004 BCCA 433, the offender’s appeal of a four year custodial sentence for aggravated assault was dismissed. The offender, who suffered from alcohol abuse, a personality disorder, and a bipolar disorder, stomped and kicked the victim as he layunconscious. The victim suffered five broken ribs, a punctured lung, a broken nose, a broken jaw, a brain injury, and permanent injury tohis right hand. [78] In R. v.

Hurtado, 2012 BCCA 47, the Crown appealed the offender’s effective sentence of five years and two months plusprobation for the offence of aggravated assault. The offender was 22 at the time when he started being vulgar to two woman. Thecomplainant told the offender that there was no need for such conduct. The complainant then joined a group of friends and after about10 minutes the offender came up behind the complainant and slashed him across the throat with a razor knife. [79] In R. v.

Larose, 2012 BCCA 450, the offender’s appeal of a global sentence of seven years for two counts of aggravated assaultwas dismissed. The offender was in his early 20s when he got into an altercation with two individuals. The incident escalated to a fightwherein the accused produced a knife and stabbed one of the victims three times and then he cut the other victim’s neck. [80] In R. v. Cameron, 2013 BCPC 283, the accused was convicted of aggravated assault and sentenced to imprisonment for fiveyears. When the accused was 24, he and a group of males swarmed the victim.

The victim was punched and knocked to the ground andwhen the victim was unconscious he was punched and kicked. The victim suffered a broken nose, a fractured orbital, and a traumaticbrain injury. [81] In R. v. Plowman, 2015 BCCA 423, the offender’s appeal of a seven year sentence for manslaughter was dismissed. The case isof assistance in that it confirms a judge may find it significantly aggravating when gratuitous violence is jointly inflicted.

The case alsounderscores at para. 58 the following in relation to group violence that occurs without provocation: He [the trial judge] correctly held that deterrence and denunciation must be the primary objectives of the sentence imposed. [82] Counsel for the accused submitted a number of cases which can be summarized as follows: [83] In R. v. Grassick, 2015 BCCA 432, the offender’s appeal of a three year sentence for aggravated assault was allowed and a twoyear sentence was substituted. The offender pulled the victim from a vehicle. He then punched and kicked the victim.

The victimsuffered broken ribs, a punctured lung, renal failure, and a blood clot. The offender did not have a criminal record, the offence was out ofcharacter for the offender, and the offender’s family relied on him. In reducing the sentence, the Court noted the assault was notplanned, no weapons were involved, and the impact that a long prison sentence would have on the offender’s family. [84] In R. v. Fraser, 2009 BCSC 1789, the accused received a 15 month custodial sentence for aggravated assault. The accused andhis brother returned to a party with weapons.

An altercation ensued wherein the accused cut four people. Of note is one of the victimslost a significant amount of blood and had to be hospitalized. The three other victims had cuts and they were treated at hospital. [85] In R. v. Addicott, 2003 BCSC 737, the accused was convicted of aggravated assault and sentenced to a custodial term of twoyears less a day followed by probation. The accused used trickery to gain entry to the victim’s apartment; he then assaulted the victimwith a guitar, a fan, and his fists. The victim lost his eye and had several surgeries.

The accused was 34, employed, and did not have acriminal record. [86] In R. v. Sidhu, 2005 BCCA 178, the offender’s appeal of a three year sentence for aggravated assault was dismissed. Theoffender was convicted after he punched and stomped the victim who was unconscious. The victim suffered a brain injury, a brokennose, and facial fractures. [87] In R. v. L.E.S., 2005 BCPC 407, the accused was sentenced to imprisonment of two years less a day to be served by aconditional sentence order. The accused was convicted after he encouraged others to obtain retribution for perceived improperbehaviour.

During the conflict the accused hit the victim once. The victim had a pre-existing eye problem and as a result of the incidenthe lost vision in his eye. The accused was in his 40s, he had a dated unrelated criminal record, he was paying support for four kids, andhe employed four people who were dependent on him. [88] In R. v. Hall, 2001 BCCA 74, the Crown’s appeal of an 18 month conditional sentence order for aggravated assault wasdismissed. The offence involved a swarming and the use of a weapon resulting in serious injuries. In my view, the case is uniquebecause the offender suffered from a disability.

Despite this, the Court’s view at para. 8 is of assistance: [8] On a review of all the cases tendered, 18 months for aggravated assault in a case described as swarming by the sentencing judgeresulting in serious injury to the victim is at the low end of the sentence that might be imposed. Such gratuitous, bullying, groupbehavior is considered by the courts as a very serious form of assault, and must be treated accordingly. However, every sentence must betailor made for the offence and the offender - considering always that trial judges must endeavor to achieve some consistency by

sentencing like offenders alike for like offences. [89] Counsel for the accused also submitted, R. v. J.A., 2006 BCPC 625, R. v. Foreman, 2015 BCPC 104, and R. v. Foster., 2008BCSC 1369, I have reviewed these authorities and I find them to be distinguishable based on the nature of the offences and theoffender’s circumstances. [90] After considering all of the authorities cited, I find the range of sentence for aggravated assault to be between 16 months and sixyears. RIOTING SENTENCES [91] A review of the authorities shows that a wide range of sentences have been imposed for participation in the Stanley Cup riot.

Inthis regard, the range has been a conditional discharge up to an 18 month custodial sentence. [92] In R. v. Peepre, 2013 BCCA 115, the Court commented on the unique considerations that apply to sentences imposed forparticipating in a riot. At para. 27, the Court stated: [27] Special considerations apply to sentences imposed for participation in a riot. Sentencing an offender for participation in criminalacts that involve widespread public disorder requires a court to look not only at the offender’s individual conduct, but also the broadercontext in which the individual participated.

A rioter is culpable for not only his own conduct: he bears, in a general way, a share ofresponsibility for the more widespread acts of lawlessness in which he participated: see R. v. Loewen (1992), (BCCA), 75 C.C.C. (3d) 184, 15 B.C.A.C. 42; R. v. Simpson, [2005] A.W.L.D. (Q.B.), aff’d 2004 ABCA 390. Citizens of Vancouver andmembers of the larger community present at the scene of the Stanley Cup riot were terrorized by the acts of violence to persons andproperty that occurred.

That violence, and the public’s consequential feeling that law and order had been cast aside, is significant in ourconsideration of the fitness of Mr. Peepre’s sentence. Participation in a riot is a deliberate criminal act that has grave consequences forthe safety and security of our community. The corollary of that fact is that those who participate must expect to be punished severely.

By using the deterrent and denunciatory effects of sentencing in a manner that accounts for the current conditions in and values of thecommunity, courts can discourage individuals from participating in acts of public violence and, hopefully, prevent the reoccurrence ofevents like the Stanley Cup riot. [93] At para. 30 of Peepre, Madam Justice Garson suggested conduct that militates towards a significant length of imprisonment.

Inthis regard, Madam Justice Garson stated: [30] These comparator cases disclose that, generally speaking, first time offenders (meaning those with no criminal record) willnevertheless receive a prison sentence of some significant length if their conduct includes: inciting others; engaging in additionalcriminal activity, such as assault (particularly of a police officer), arson, or wearing a mask; or committing multiple criminal acts inmultiple locations. See R. v. Yates, 2012 BCPC 250; R. v. Dorosh, 2012 BCPC 370; R. v. Patillo, 2012 BCPC 299; R. v. Renderos, 2012BCPC 467; R. v. Alviar, 2012 BCPC 181; R. v.

Lau (5 November 2012), Vancouver 223529-1-V (BCPC); R. v. Horton, 2012 ONCJ 724;R. v. Ravindharaj, 2012 ONSC 6260. This list of aggravating factors is not intended to be exhaustive. It seems to me as a broadproposition such aggravating factors should generally lead to a longer prison term and not a conditional sentence served in thecommunity, subject always to an individual’s personal circumstances. [94] Numerous rioting sentencing cases were submitted to the Court. I have reviewed them and I find the cases are significantlydifferent from the instant matter.

For example, none of the cases involved: multiple (serious) assaults, significant rioting activity, seriouscriminal records, and conduct committed in breach of Court Orders. [95] Counsel for Mr. Milne and Mr. Fisher place emphasis on R. v. Makris, 2013 BCPC 239, wherein the offender received an eightmonth sentence for rioting and a concurrent eight month sentence for assault. [96] With respect to the Makris decision, it is noteworthy that Mr. Makris’ conduct did not include aggravated assault, nor, did hisconduct involve criminal acts to multiple businesses. [97] It must also be observed that Mr.

Makris had mitigating factors not present in the instant case. Specifically, Mr. Makris pledguilty, and he had done extensive volunteer work. Also of significance are Mr. Justice Groberman’s comments in R. v. MacDonald,2014 BCCA 390, where he stated at para. 45: [45] Without in any way casting doubt on the appropriateness of the sentence in Makris, I would also comment that it should be seenas reflecting the low end of the range for the offences that were committed. [98] The Crown relies on R. v.

Anderson, 2015 BCSC 2514, wherein the accused was sentenced to imprisonment for 15 months forparticipating in a riot and eight months concurrent for assault and assaulting a police officer. [99] In Anderson, the offender’s conduct included: punching a firefighter, swinging a bag on two occasions at a police officer,throwing things at the police and obstructing the police. At the time of the riot, the accused was on probation, he had a criminal recordfor assault, and subsequent to the riot he had been involved in other criminal matters. [100] I am satisfied that where the conduct is somewhat similar to Mr.

Milne and Mr. Fisher, the appropriate range of sentence isbetween eight months (Makris) and 15 months (Anderson). I note the sentence of 15 months in Anderson is in part reflective of hisactions towards the police. PRINCIPLES OF SENTENCING [101] The fundamental purpose of sentencing is set out in s. 718 Criminal Code. Accordingly, when a Court imposes a sentence themain purpose is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society. This fundamental purpose

is achieved through a number of objectives namely: (

a) denouncing unlawful conduct; (

b) deterring offenders and other persons from committing offences; (

c) separating offenders from society, where necessary; (

d) assisting in rehabilitating offenders; (

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

f) promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [102] The primary sentencing objectives for participating in a riot are denunciation and deterrence: Peepre and R. v. Lowen (1982), (BC CA), 75 C.C.C. (3d) 184 (BCCA). In the circumstances of the instant case, I also find there is somerehabilitative prospect for Mr. Milne and Mr. Fisher. In this regard, I note the positive steps they have taken and the support they have. [103]

Section 718.1 of the Criminal Code sets out that proportionality is a fundamental principle of sentencing. As such, any sentencethat is imposed must be proportionate to the gravity of the offence and degree of offender responsibility. [104]

Section 718.2 of the Criminal Code sets out additional principles that a sentencing court must consider. Of relevance are: (

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

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, withparticular attention to the circumstances of aboriginal offenders. AGGRIVATING AND MITIGATING CIRCUMSTANCES Aggravating The Riot: [105] I find the following to be aggravating, Messrs.

Fisher and Milne’s involvement in the riot exceeded two hours, their conduct wasspread over a number of locations, they encouraged others, they tried to conceal their identity, their actions demonstrated disregard forthe safety of others, they ignored police direction, and they advanced on police lines. The Assaults: [106] With respect to the aggravating aspects of the assault on the unknown male, he was acting as a Good Samaritan, he did notprovoke the assault, he had no opportunity to defend himself, and a vulnerable area of his body was targeted [107] The assault on Mr.

Leveille was a surprise, unprovoked, violent assault wherein vulnerable parts of Mr. Leveille’s body weretargeted. Further, the attack was a joint enterprise that occurred when Mr. Leveille was acting as a Good Samaritan. I find it extremelyaggravating that, Mr. Leveille was kicked in the head and that his rib cage was stomped on when he was defenceless and on the ground. [108] The assault on Mr. Skogman was initiated from behind, thus robbing Mr. Skogman of an opportunity at defending himself.

Ialso note the assault was unprovoked, that several blows were delivered, and that substantial force was used. [109] Further aggravating factors for Mr. Milne include: he has a record for violence and that he was bound by a Probation Order andan Undertaking when he committed the offences before the Court. Mitigating [110] Mr. Milne and Mr. Fisher have expressed remorse for their conduct. They also provided instructions to their trial counsel thuspermitting an efficient hearing of the case.

They have the support of family and since the offences they have taken steps to distancethemselves from negative influences. [111] Counsel for Mr. Milne argued the media attention that this case has attracted is mitigating. In support, counsel filed a newspaperclipping reporting Messrs. Milne and Fisher’s conviction. There has been no information provided to support the notion that the mediaattention has caused the offenders hardship, as such, I do not see the media attention as mitigating.

In fact, the publication of the matterassists in protecting the public in that it has a deterrent effect by reminding like-minded persons that there are consequences forparticipating in criminal activities. A further benefit of the reporting is it provides the public with information about the functioning ofthe justice system. CONCLUSION

[ 112 ] The offenders’ conduct was serious. Their actions demonstrated a complete disregard for social order and the safety of all those within the downtown core. They showed a willingness to flout police attempts to regain control and their collective actions encouraged others to do the same. The assaults were done with cowardice, bravado, and extreme violence. Their intention of causing physical harm to those they attacked was clearly evident. [ 113 ] I find the accused have a high degree of moral responsibility. I accept they were under the influence of alcohol and in Mr.

Fisher’s case alcohol and drugs, however, I note the videos do not show gross impairment to motor skills, nor do they display persons who are unable to make informed decisions. An example of this is Mr. Fisher’s approach and obvious thought process when he was trying to break the windows at Holt Renfrew. Looking at the video as a whole, it is clear he was trying to break into the high end store and he carefully tried to achieve that goal. [ 114 ] I acknowledge that I must impose the least restrictive sentence that is appropriate in all of the circumstances.

Consideration must also been given to a community based sentence. In my view, any form of community based sentence would not meet the principles of sentencing in that the requisite degree of denunciation and deterrence would not be achieved. [ 115 ] After considering all of the materials, counsel’s submissions, the accused’s conduct and their personal circumstances, I impose the following sentences: Mr. Fisher - 223623 VC Assaults [ 116 ] Count 4 - Assault of the unknown male; I sentence Mr. Fisher to imprisonment for 60 days. [ 117 ] Count 5 - Aggravated assault of Mr. Leveille; I sentence Mr.

Fisher to imprisonment for 18 months. I have declined to impose a sentence at the low end of the range because I do not a see the assault of Mr. Leveille as a consensual fight that got out of hand as described in R. v. Willier , 2005 BCCA 404 , moreover, I also recognize the assault was a joint effort. [ 118 ] Count 7 - Assault of Mr. Skogman; I sentence Mr. Fisher to imprisonment for 12 months. Participating in a Riot and Other Offences [ 119 ] Count 1- Participating in a riot; I sentence Mr. Fisher to imprisonment for 12 months. [ 120 ] Count 2 - Having his face masked; I sentence Mr.

Fisher to imprisonment for 6 months. [ 121 ] Count 3 - Mischief to the Bank of Montreal, I sentence Mr. Fisher to imprisonment for 2 months. [ 122 ] Count 6 - Break and enter and committing an indictable offence ( Black and Lee ); I sentence Mr. Fisher to imprisonment for 6 months. [ 123 ] Count 8 - Mischief to the Hudson’s Bay Company, I sentence Mr. Fisher to imprisonment for 3 months. [ 124 ] Count 9 - Break and enter with the intent to commit an indictable offence (Hudson’s Bay Company); I sentence Mr. Fisher to imprisonment for 5 months. [ 125 ] Count 12 - Mischief to Mego Luggage; I sentence Mr.

Fisher to imprisonment for 3 months. [ 126 ] Count 13 - Mischief (Holt Renfrew); Mr. Fisher to imprisonment for 4 months. Information 223707-2-C [ 127 ] Count 2 - Failing to remain at the scene of an accident contrary to s. 68 (1) of the Motor Vehicle Act; I sentence Mr. Fisher to imprisonment of 1 day with the record reflecting time already served. [ 128 ] Count 3 - Breaching his recognizance; I sentence Mr. Fisher to imprisonment for 1 day with the record reflecting time served of 8 days and credit of 12 days. Mr. Milne [ 129 ] Count 5 - Aggravated assault of Mr. Leveille, I sentence Mr.

Milne to imprisonment for 19 months. I have imposed an extra month to reflect Mr. Milne’s record for violence. I have also declined to impose a sentence at the low end of the range because the assault was jointly committed and because this is not an event where a consensual fight got out of hand. Participating in a Riot and Other Offences [ 130 ] Count 1 - Participating in a riot; I sentence Mr. Milne to imprisonment for 13 months. The additional 1 month is to reflect that Mr.

Milne was bound by a Probation Order and an Undertaking when he participated in the riot. [ 131 ] Count 2 - Having his face masked; I sentence Mr. Milne to imprisonment for 6 months. [ 132 ] Count 3 - Mischief to the Bank of Montreal, I sentence Mr. Milne to imprisonment for 4 months. [ 133 ] Count 6 - Break and enter and committing an indictable offence ( Black and Lee ), I sentence Mr. Milne to imprisonment for 6 months.

[134] Count 8 - Mischief to the Hudson’s Bay Company, I sentence Mr. Milne to imprisonment for 4 months. [135] Count 10 - Mischief to the unmarked police car, I sentence Mr. Milne to imprisonment for 1 month. [136] Count 11 - Break and enter and committing an indictable offence (Mego Luggage), I sentence Mr. Milne to imprisonment for 6months. [137] Count 13 - Mischief (Holt Renfrew), I sentence Mr. Milne to imprisonment for 1 month. Consecutive vs.

Concurrent Sentences [138] The Crown argues the sentences imposed for the riot offences should be concurrent to each other and consecutive to the sentenceimposed for the assaults. The Crown argues the effect of imposing concurrent sentences would be to impose no sentence at all for theassaults. [139] Counsel for the offenders argue against imposing consecutive sentences. In support they rely on parity by pointing to thoserioting cases wherein the offender received concurrent sentences for participating in a riot and for assault: R. v. Timleck, (May 15, 2013),[unreported] Vancouver Registry 223606 1- V (Prov.

Ct.), R. v. Makris, 2013 BCPC 239 , 2013 BCPC 0239, and R. v. Yates,2012 BCPC 250 , 2012 BCPC 0250. [140] If this Court were to impose concurrent sentences for all of the offences in this matter it is my view that the effect would be toimpose no sentence at all for the assaults. Further, the degree of violence and the offender’s culpability mandates a sentence that isdistinct from the “rioting” as such an approach serves to underscore the deterrent and denunciatory objectives of the sentences imposedfor the assaults. Total Sentence Mr.

Fisher [141] Counts 1, 2, 3, 6, 8, 9, 12, and 13 will be served concurrently to each other. Counts 4, 5, and 7 will be consecutive to each otherand consecutive to counts 1, 2, 3, 6, 8, 9, 12, and 13. [142] The total length of the sentence is 44 months. In my view the total sentence does offend the totality principle in that it isdisproportionate to the aggregate seriousness of Mr. Fisher’s conduct and it would undermine some of his rehabilitative steps. As such,and as per R. v. Li, 2009 BCCA 85, Mr. Fisher’s sentence for participating in a riot will be reduced by 8 months. Making a total sentenceof 36 months.

Ancillary Orders Mr. Fisher [143] Pursuant to s. 110 of the Criminal Code, Mr. Fisher is prohibited from possessing any firearm, cross-bow, prohibited weapon,restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things for a period of 10years. [144] Pursuant to s. 487.051 of the Criminal Code, I order that a sample of Mr. Fisher’s DNA be taken. [145] As Mr. Fisher will be in custody and without income, the Victim Fine Surcharges are waived. Total Sentence Mr.

Milne [146] Counts 1, 2, 3, 6, 8, 10, 11, and 13 will be served concurrently to each other and consecutively to count 5 for a total sentence of32 months. In my view, the total sentence does not offend the totality principle. It is not unduly harsh in that it is proportional to theseriousness of the offences and Mr. Milne’s level of responsibility. Ancillary Orders Mr. Milne [147] Pursuant to s. 110 of the Criminal Code, Mr.

Milne is prohibited from possessing any firearm, cross-bow, prohibited weapon,restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things for life. [148] Pursuant to s. 487.051 of the Criminal Code, I order that a sample of Mr. Milne’s DNA be taken. [149] As Mr. Milne will be in custody and without income, the Victim Fine Surcharges are waived. The Honourable Judge R. Harris Provincial Court of British Columbia