R. v. Alexander Date:, 2014 BCPC 134

Citation: R. v. Alexander Date: 20140505 2014 BCPC 0134 File No: 223624-1-V Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TRAVIS JAMES ALEXANDER EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M. GIARDINI Counsel for the Crown: P. Tomasson Counsel for the Defendant: P. Doroshenko Place of Hearing: Vancouver , B.C. Date of Hearing: May 5, 2014

Date of Judgment: May 5, 2014 Introduction [ 1 ] THE COURT: The accused, Travis Alexander, pled guilty to participation in a riot which took place on June 15, 2011, that is the Stanley Cup riot, contrary to s. 65 of the Criminal Code . The parties prepared admissions of fact setting out the background to the riot, the events that occurred during the riot, in general, and details of Mr. Alexander's participation in the riot. General Background [ 2 ] The Stanley Cup riot of June 15, 2011, which occurred in Downtown Vancouver, has become a well-known, albeit very disturbing event in the city's history.

A number of decisions have been rendered, primarily by Provincial Court judges, dealing with the sentencing of a number of persons who were charged with participating in the riot. Given the well-known details of the riot, I will only review those background circumstances that are necessary for sentencing Mr. Alexander. [ 3 ] Game 7 of the 2011 Stanley Cup Finals was played in Vancouver between the Vancouver Canucks and the Boston Bruins. The game ended at approximately 7:45 p.m. There were approximately 155,000 persons in the downtown core of Vancouver that evening.

Approximately one-third of those persons were in the area of the Vancouver Public Library and the CBC on West Georgia and the areas adjacent thereto. These are areas near the hockey arena. Vehicles were vandalized, this included being broken into and set on fire. Many commercial premises were also vandalized and had windows broken and contents of the premises looted. [ 4 ] Additionally and more troubling, crowds of people faced off against the police and various objects were thrown at the police. Many police officers and civilians were assaulted.

An atmosphere of lawlessness, violence and destruction quickly consumed the downtown core of Vancouver. [ 5 ] As of February 2, 2012, the total estimated monetary loss as a result of the riot was $3,778,190.59. This, however, is not a comprehensive representation of the loss. Many additional costs such as lost wages or labour costs have not been included.

To the best of my knowledge, the legal costs of investigation and the costs of proceeding with these matters through the courts have not been included either. [ 6 ] The psychological impact of the riot is difficult to quantify as personal experiences of persons in the downtown core at the time vary greatly. Some persons barricaded themselves inside business premises for safety. Others guarded their businesses against rioters. A number of citizens defended property or other persons at risk to themselves. Some people have sought counselling.

What is common to all is that the riot stripped a sense of safety and security away from citizens of Vancouver. Participation in Riot [ 7 ] I now turn to Mr. Alexander's participation in the riot. Mr. Alexander's participation in the riot began at the Live Site near the hockey arena. This was the area bounded by Georgia Street, Robson Street, Hamilton Street and Homer Street. At approximately 7:42 p.m. a car, the make of which was a Versa, was overturned near the Canada Post building which is within the Live Site zone.

Sometime later a second vehicle, a GMC truck, was also overturned near the Canada Post building. [ 8 ] Between 7:42 p.m. and approximately 8:00 p.m., Mr. Alexander participated in the riot at the Live Site as follows: (

a) He jumped on top of the Versa five times. He was the third person to do so. (

b) He struck the rear side of the Versa with his forearm. (

c) He gestured and encouraged others around him to help in overturning the Versa. (

d) He squatted down, placed his hands on the underside of the Versa and, along with other rioters, lifted the Versa on its side. (

e) He raised his arms in celebration. (

f) He pulled on the front bumper to help in overturning the Versa. He and the other rioters were successful in overturning it. (

g) He ran onto the undercarriage of the Versa once. It was overturned and he jumped up and down on it and kicked one of the tires. (

h) He kicked the driver's side of the overturned Versa three times. He struck the back of the overturned Versa's tail light area four times with a red stepladder. (

i) He attempted to hit the driver's side of the Versa with the bumper that had been torn off of it. (

j) He and another rioter threw a lawn chair at the back end of the overturned Versa. (

k) He also picked up the lawn chair and struck the rear of the Versa with it. (

l) He rocked the GMC truck with other rioters in an attempt to overturn it. [ 9 ] Mr. Alexander moved from the Live Site north on Georgia Street to the intersection of Georgia and Homer Street. The police had arrived at that intersection shortly after 8:00 p.m. They were met by a hostile crowd. There were hundreds of people in the area, significantly outnumbering the police. Some people in the area threw objects at the police including metal fence sections, small metal fence connectors, glass bottles, rocks, and garbage cans.

[ 10 ] One of the buildings in the area was a Budget Rent A Car premises. The business was closed but one employee stayed late to secure the premises. Later in the evening however, multiple windows at that Budget Rent A Car premises were destroyed by members of the crowd. [ 11 ] Between approximately 8:00 p.m. and 8:45 p.m., Mr. Alexander participated in the riot in the vicinity of Georgia and Homer Streets as follows: (

a) He, along with other rioters, shook a tree planted in the sidewalk, but stopped when a third man intervened. (

b) He struck the glass display of a bus shelter on West Georgia and Homer Street three times with a yellow metal fence base. When the window was struck for the third time it shattered. (

c) He encouraged another rioter to break windows by shouting, "Break it." (

d) He pulled on a yellow metal fence base to assist another rioter in retaining it when a Good Samaritan tried to take the metal fence base away from the other rioter in front of the Budget Rent A Car premises. (

e) He kicked at a Budget Rent A Car window. (

f) He grabbed at the camera of a man, Brian Nguyen, who was filming in the area, and got into a shoving match with him until a Good Samaritan intervened. [ 12 ] The details of the shoving incident with Mr. Nguyen are as follows. Mr. Nguyen and others were trying to prevent people from damaging the Budget Rent A Car windows. Mr. Nguyen was also recording what was happening with his camera. Mr. Nguyen saw Mr. Alexander kicking the windows of the Budget Rent A Car premises once or twice. Mr. Nguyen grabbed Mr. Alexander to try to stop him from kicking the windows further. [ 13 ] He showed Mr.

Alexander the camera he was carrying to make him aware he was being recorded. Mr. Alexander grabbed at Mr. Nguyen's camera, but Mr. Nguyen pulled the camera away. Mr. Nguyen and Mr. Alexander exchanged several shoves until a Good Samaritan stood between them and stopped further contact. Mr. Alexander told Mr. Nguyen that he probably should not be filming this. Mr. Nguyen was not injured and his camera was not damaged. [ 14 ] Mr. Alexander then moved north on Georgia Street to Georgia and Richards Streets. A parkade called the Parkwell Parkade is located near that intersection.

Other businesses in the area are Black & Lee, Blenz Coffee Shop, and Da Gino Restaurant. All three of these businesses sustained considerable damage as a result of the riot. At the time the riot started, there were seven vehicles parked in the outdoor street-level parking area of the Parkwell Parkade. All seven vehicles parked in that area of the parkade were destroyed during the riot. [ 15 ] Mr. Alexander's involvement at that location between 8:45 p.m. and 9:30 p.m. was as follows: (

a) He attempted on two occasions to overturn a Sentra parked in the outdoor parkade. On the second attempt, the Sentra was overturned. (

b) He attempted with other rioters to overturn a Hummer parked in the outdoor parkade. [ 16 ] Mr. Alexander then moved away from that area and later, at approximately 10:30 p.m., he was involved with a group of rioters in the area of Granville and Pender Streets. By 10:30 p.m., the police had the intersection at Granville and Georgia Streets under control. Police officers had also cleared Granville Street of rioters from Georgia Street north to Pender Street.

However, police officers were confronted with a large group of rioters at the intersection of Granville and Pender Streets at approximately 10:30 p.m. [ 17 ] The rioters advanced on the police officers who were not wearing riot gear. The rioters were chanting, "Fuck the police" and some of them were throwing objects at the police. On the video, it was clearly depicted that several individuals had objects and were menacing the police with those objects.

In particular, one individual at the front of the line was gesturing with a hockey stick. [ 18 ] Some of the advancing rioters broke into and looted stores in the 500 block of Granville Street including Tip Top Tailors. Tip Top suffered substantial damages. Windows on Granville Street were smashed and a large quantity of merchandise was stolen. The police were forced to retreat southbound down Granville Street as the group of rioters advanced towards them. [ 19 ] Mr. Alexander participated in the riot at that location as follows: (

a) He was in the group of rioters at the intersection of Granville and Pender Streets who confronted the police. (

b) He was in the front of the line of rioters who were advancing on the police chanting, "Fuck the police." (

c) Mr. Alexander was wearing a mask during part of this confrontation with the police. Circumstances of the Offender [ 20 ] I now turn from the circumstances of the offence to the circumstances of the offender. Mr. Alexander is now 23 years old. In 2011, he was 20 years old. He was born and raised in North Vancouver. He went to school there. He currently lives with his mother, father, and a younger sister. Mr. Alexander attended and graduated from Argyll Secondary School in 2008. [ 21 ] Mr.

Alexander has worked as follows: in landscaping, as a carpenter's assistant, as a technician in training at Pro-Claim Restoration, more recently as a labourer in the Streets Department of North Vancouver District. This is a position Mr. Alexander obtained after the riot and currently still occupies. Initially he was working in a classification called temporary full-time which entailed

working from March through to December. [22] At the time the Pre-Sentence Report was written, he was classified as an auxiliary employee and was eligible to be hired backfor work, which obviously has occurred. It was not clear whether he is still in an auxiliary or has another designation. From thesubmissions of counsel, however, it is clear he does have work there and he hopes to continue working there once this matter is putbehind him. Mr. Alexander, as I noted, has currently been working for the District since approximately March 2014. Mr.

Alexandertold the probation officer who prepared the Pre-Sentence Report that he is taking an online course for work and hopes to advance in hisjob. [23] The probation officer spoke to one of Mr. Alexander's supervisors at North Vancouver District, a Mr. Stewart Kyle. Mr. Kyletold the probation officer that Mr. Alexander has a positive attitude, good ability, and is hard working. He is well liked and there havebeen no issues with rudeness or insubordination. [24] Both the probation officer and Mr. Alexander's defence counsel advise that Mr.

Alexander experienced a great deal of stressand depression a few weeks before the riot. He had lost his job at Pro-Claim. This occurred because he told his supervisor at Pro-Claimthat he was hoping to get work with the District and he was fired immediately thereafter. He also lost his girlfriend. Because of thecircumstances, which I do not feel necessary to repeat in this decision, he was devastated by his girlfriend's behaviour. This affected himpsychologically as well as emotionally. [25] Mr.

Alexander reported to the probation officer that he became involved in the riot because he was angry at the world andhimself. He told the probation officer that if the event had happened at any other time in his life, he would have been on the other sidehelping to protect the city, not destroying it. He also told the probation officer he went into Vancouver the next day and helped cleanup. The probation officer was unable to confirm this. [26] Mr. Alexander told the probation officer and his counsel and the court today that the riot has been weighing on him every daysince it occurred.

He reported to the probation officer that for a long time after the riot he would wake up every day thinking about whathe had done. He explained to the court the effect that the riot has had on him. Letters that were filed by defence counsel, one from hisgrandmother, the other from his mom and dad who could not be here today, and letters Mr. Alexander wrote to the owners of thevehicles, indicate his remorse and the effect his participation in the riot on that fateful night has had on his life. [27] Mr. Alexander told the court he does feel ashamed.

He hopes he is not going to let that shame and the results of that nightdefine him going forward. He accepts that he needs to take responsibility and that there will be consequences, but he hopes to become abetter person because of it and to move on to become a productive citizen. Principles of Sentencing [28] I now turn to the general principles of sentencing. The fundamental purpose of sentencing is to contribute to respect for the lawand the maintenance of a just, peaceful, and safe society. This is to be accomplished by imposing just sanctions that have one or more ofthe following objectives: (

a) denunciation; (

b) deterrence, both specific and general; (

c) separation of the offender from society where necessary; (

d) assisting in the rehabilitation of the offender; (

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

f) promoting a sense of responsibility and acknowledgement of harm done to victims and the community. [29] The fundamental principle of sentencing is proportionality. This means that a sentence must be proportionate to the gravity ofthe offence and the degree of responsibility of the offender. [30] Sentencing an offender is an individualized process.

In arriving at a fit sentence, not only must I consider the purposes andprinciples of sentencing I have just referred to, but I must also consider the circumstances of the offence and the offender and anymitigating or aggravating factors relating thereto. [31] I now turn to how participating in a riot is characterized. The case law cited by the Crown and not disputed by the defenceclearly establishes the following: (

a) Participation in the riot of June 15, 2011, is a serious offence. (

b) Rioting by definition disturbs the peace of the community tumultuously. It is public disorder that has escalated to the point ofactual or threatened force or violence that causes people of reasonable firmness and courage to be alarmed; that is R. v. Brien (1993), (NWT SC), 86 C.C.C. (3d) 550. (

c) Participating in a riot by its very nature is a serious threat to an orderly society; see R. v. Loewen (1992), (BCCA), 75 C.C.C. (3d) 184. (

d) Participation in a riot as defined in s. 64 of the Code does not require the commission of separate criminal offences. One can beculpable of participating in a riot by word, deed, or other manner so long as the person's actions contributed to the excitement, fervour,intimidation, and dangerousness of the situation; see R. v. Brien and R. v. Loewen.

[32] In R. v. Dickinson, 2012 (B.C.P.C.), the first rioting case to address the 2011 Stanley Cup riot, my brother Judge MacLean setout an analytical framework for sentencing an accused for participating in the riot. The factors to be considered are the offender's degreeof participation, the context of the riot generally, including the impact on victims, and the offender's personal circumstances. [33] The Crown submitted a book of authorities. I have summarized some of the decisions.

After reviewing the cases, I concludethe principles set out therein are uncontroversial and have been referred to in many riot-related cases over the course of the last severalyears. [34] As part of its submission, the Crown tendered a 22-page sentencing chart which set out a

summary of the sentences that havebeen imposed in riot-related sentencing cases to date. I have reviewed that chart, but will be saying nothing further about it because ofthe very fact that it is 22 pages long. It is clear on reviewing the chart that a range of sentences has been imposed. Those sentences havetaken into account the factors set out in the Criminal Code for arriving at a fit sentence for each particular offender. [35] In addition to the sentencing chart, the Crown presented a number of other cases. One of them is R. v. Peepre, 2013 BCCA115.

This is a decision of our Court of Appeal in which the court considered the appeal of Mr. Peepre. He was sentenced in ProvincialCourt to serve a jail sentence of 60 days intermittently on two counts, namely, participating in a riot and assault. Further, he was placedon probation for 18 months. [36] The Crown appealed the sentence, arguing it was too lenient given the seriousness of the offences committed by Mr. Peepre. At paragraph 27 of that decision, the court noted special considerations apply to sentences imposed for participating in a riot.

The courtconfirmed that in sentencing an offender who has participated in a riot, the sentencing judge is required to look not only at the offender'sindividual conduct, but also at the broader context of the events in which the individual participated. The court stated: A rioter is culpable for not only his own conduct: he bears, in a general way, a share of responsibility for the more widespread acts oflawlessness in which he participated... [37] The court also noted that participation in a riot is a deliberate criminal act that has grave consequences for the safety andsecurity of the community.

Accordingly, those who participate in a riot must expect to be punished severely. [38] The court reviewed a number of sentencing cases and noted that the comparator cases disclose that first-time offenders,generally speaking, received a prison sentence of some significant length if their conduct included inciting others, engaging in additionalcriminal activities such as assault, arson, or wearing a mask, or committing multiple criminal acts in multiple locations.

The court saidthat, as a broad proposition, such aggravating factors should generally lead to longer prison terms and not a conditional sentence servedin the community, subject always to an individual's circumstances. [39] The next case is R. v. Kennedy Williams, 2013 BCCA 116. This decision is the companion decision to that of Mr. Peepre. Inthis case, Mr. Williams was sentenced for participating in a riot. He was sentenced to 90 days in jail to be served intermittently plus aprobation order for 15 months. The Crown in this case also argued that Mr.

Williams' sentence was too lenient given the seriousness ofthe offence. [40] Mr. Williams was one of the ringleaders, or so he was described. He was involved in vandalizing, overturning, and burning aGMC truck at the Live Site on Georgia Street. He used a metal pole to smash the rear window and other parts of the truck. He alsounscrewed the truck's gas tank and set a large stuffed mascot on fire. He was confrontational with police and he kicked and cracked thedoor of the Canada Post building. [41] The court concluded, for the same reasons discussed in Mr.

Peepre's case, that the decision of the sentencing judge was entitledto deference. It concluded that the sentence imposed on Mr. Williams was proportionate to the gravity of the offence. Mr. Williams'conduct was shockingly antisocial and he had participated in a frightening violent spectacle of wanton destruction. [42] It noted, however, that the sentencing judge had taken into account the aggravating circumstances of Mr. Williams' conduct aswell as the mitigating personal circumstances.

The court noted that a sentencing judge is required to weigh the competing demands forgeneral deterrence and denunciation, yet also to recognize the mitigating personal circumstances of Mr. Williams. Accordingly, thecourt concluded the sentence was not unfit. [43] The other cases referred to by the Crown are R. v. Yates, R. v. Patillo, R. v. Lau, R. v. Ovando Renderos, R. v. Bernabe, R. v.Makris, and R. v. Beddow. I had summarized some of these cases, but I believe I can safely put them aside. Each of them reviews theparticular circumstances of the offender in question.

At this point I do not believe it is necessary to summarize those cases as part of myreasons. [44] The next point I will deal with is the joint submission. The Crown and the defence have presented the court with a jointsubmission. The joint submission is that Mr. Alexander should be sentenced to a jail sentence of four months, which the prosecutorcalled a traditional jail sentence, as opposed to a conditional sentence order, but no probation order to follow. [45] In the case of R. v. Koenders, 2007 BCCA 378 , [2007] B.C.J.

No. 1543, the British Columbia Court of Appeal dealtwith issues regarding joint submissions. In the course of doing so, it discussed what a joint submission is. It said the following, which Iparaphrase from paragraph 45. A joint submission has become a term of art. It denotes an agreement made between the Crown and thedefence where, in return for a guilty plea, counsel will together urge the sentencing judge to impose a particular sentence. It is clear fromthe case law that the court is not bound by a plea bargain or the joint submissions of counsel, although the latter ought to be givenappropriate weight.

Sentencing judges will not often depart from a joint recommendation. [46] In another case, R. v. Fuller, [2007] B.C.J. No. 1427 (B.C.C.A.), the court noted at paragraph 17:

In considering whether the sentencing judge erred in principle as alleged, it is important to start from the proposition that a sentencing judge is the ultimate arbiter of a fit sentence and is not bound to give effect to a joint submission. It is also important to note, however, that where counsel have made a joint submission resulting from a plea bargain, sentencing judges are required to view those submissions with considerable deference. A Fit Sentence [ 47 ] In this case, as in other riot-related sentencing cases, the three principal objectives of sentencing are denunciation, deterrence and rehabilitation.

I will touch briefly on each of these objectives. [ 48 ] In this case, as in any other sentencing case, the sentence must be such that it denounces the offender's unlawful conduct. The sentencing process is a way for the sentencing judge, who is speaking on behalf of the community, to say to the offender, "What you did was wrong; what you did was against the law; what you did is not acceptable." [ 49 ] Another objective of sentencing is deterrence. Deterrence is divided into two different types of deterrence, one general and one specific.

The sentence imposed on an offender has to be such that it deters him or her from committing offences in the future. That is specific deterrence. But the sentence ought also to deter other people who come to learn of it. That is general deterrence. [ 50 ] Last but not least, there is the objective of rehabilitation. A sentence that is imposed on an offender cannot be so harsh that it impedes or negatively affects, in a real way, the rehabilitative potential of the offender.

Clearly, if a person who has committed a crime, and has either been found guilty or has pled guilty, is able to rehabilitate himself, that is the best possible result the justice system and the community at large can hope for. [ 51 ] Accordingly, those are the three principal objectives I have considered in deciding whether I will accept the joint submission, which is four months in jail. [ 52 ] What is clear to me from the submissions of counsel, from the materials that were filed on this sentencing, including the Pre- Sentence Report, the report from the counsellor, and the letters from Mr.

Alexander's family, is that Mr. Alexander's behaviour on that fateful night of June 15, 2011, was totally out of context in comparison to his usual behaviour. Mr. Alexander has no criminal record. [ 53 ] The information detailed in the Pre-Sentence Report and what I have been told in court indicates that Mr. Alexander lived a fairly normal life, went to school, was brought up in a relatively affluent community in what sounds like a middle class home. By all accounts, he was a good young man. His grandmother attests to that in her letter based on the interactions she has had with him.

I appreciate that grandmothers may have particular affection for their grandchildren, but by the same token I expect that when people write to the court they are being candid and honest in describing their experiences. I accept his grandmother's comments. [ 54 ] I note, based on other sentence hearings relating to the riot over which I have presided and the plethora of other riot-related cases I have read, that the saddest and most shocking aspect of the rioting was that a number of the people who participated in the riot that night came from good families. They could have been my neighbours.

They could have been children of my friends. They could have been relatives. They were normal, average, law-abiding young people who, for some strange reason, just totally ran amok that evening. [ 55 ] There is no question Mr. Alexander, that you have paid a price for what you did that night and you are going to pay an addition price through this sentence. I cannot imagine the distress, embarrassment, and shame you have brought on your family. You yourself have attested to the fact that you feel ashamed.

I have no reason to disbelieve you. [ 56 ] The best one can hope for from the sentencing process is that the offender, in this case you, Mr. Alexander, will have learned a lesson. I cannot see into your heart. I can only consider and draw inferences from what I have been told. Based on what I have heard today, I conclude you have learned a very valuable, though painful lesson. This has taught you something about yourself which was not pleasant.

Nevertheless, you are trying and have tried up to this point to get past your actions in the riot and to pay your debt to society and become a productive citizen. [ 57 ] I have considered the aggravating and mitigating factors. I will deal with the aggravating factors first. The aggravating factors were the degree of your participation in the riot and the specific actions you took over the course of about three to three and a half hours. Your actions were not done in passing. You were there for three and a half hours.

You participated at different areas of the downtown core and were involved in behaviour that was disturbing. [ 58 ] Your lawyer explained that one of the reasons you did not come forward right away was because he advised you not to do so. He had reasons for doing that. I appreciate that he was candid with the court and provided an explanation, although he had no need to do so. [ 59 ] I now turn to the mitigating factors. The mitigating factors in this case are that you have accepted responsibility by pleading guilty. You have taken steps between the time of the offence and now to try to get your life together.

You are working. You have returned to the family home and are taking steps to improve your position at work by taking educational courses. [ 60 ] By pleading guilty, you have saved the Province from having to run a trial which would have been a very expensive proposition given what I know of other trials that have taken place. The most important factor, in my view, is that you have taken responsibility.

I have also considered that you are a relatively young man and have no record. [ 61 ] In all of these circumstances, given the direction of our Court of Appeal that sentencing judges should take joint submissions seriously and with considerable deference, I have concluded the sentence submitted jointly by the Crown and your counsel, that is four months in jail, is appropriate. I am aware of other riot-related cases, and the range of sentences. A four-month jail sentence is certainly well within the range of sentences for similar conduct. Accordingly, I sentence you, Mr. Alexander, to four months in jail.

[ 62 ] Given the steps you have taken so far, I agree with the joint submission that a probation order is not necessary. Accordingly, there will be no probation order. [ 63 ] Given the date of the offence, I believe, and correct me if I am wrong, Mr. Porte, that I still have the discretion to waive the victim fine surcharge? [ 64 ] MR. PORTE: You do have the discretion, Your Honour. [ 65 ] THE COURT: I am going to waive the victim fine surcharge.

I understand that you are working, but I also understand there are other civil matters relating to this case that may cause you some further expense, so I am going to waive the victim fine surcharge. [ 66 ] MR. DOROSHENKO: Thank you, Your Honour. [ 67 ] MR. PORTE: Thank you, Your Honour. Crown directs stays of proceedings on the other outstanding counts in relation to Mr. Alexander. [ 68 ] THE COURT: Thank you very much. I want to thank Ms. Tomasson and Mr. Doroshenko both for their thoughtful submissions. [ 69 ] MR. DOROSHENKO: Thank you, Your Honour. [ 70 ] MR.

PORTE: Thank you, Your Honour. [ 71 ] THE COURT: Madam Registrar, I am going to order a transcript of this sentencing decision, please. I, of course, reserve the right to make any grammatical and other minor editorial changes. It will be placed on the court file. [REASONS FOR SENTENCE CONCLUDED]