R. v. McCusker Date:, 2014 BCPC 26

Citation: R. v. McCusker Date: 20140223 2014 BCPC 0026 File No: 223661-1-V Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SARAH CATHERINE MCCUSKER EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G. RIDEOUT Counsel for the Crown: T. Laker Counsel for the Defendant: M. Mines Place of Hearing: Vancouver , B.C. Date of Hearing: January 23, 2014

Date of Judgment: January 23, 2014 Introduction [ 1 ] THE COURT: Sarah Catherine McCusker has entered a guilty plea that she participated in a riot on June 15th of 2011. This riot is commonly called the Canucks Riot.

During the course of the riot, the City of Vancouver was rendered helpless for a period of time as wanton acts of criminal behaviour took place in the city as rioting individuals looted stores, committed arson and other criminal acts. [ 2 ] The sole issue to be determined is what is a fit and proper sentence having regard to the application of the principles of sentence contained in s. 718 through s. 718.2 of the Criminal Code . Of course, every sentence must be proportionate by operation of s. 718.1. Principles of parity certainly are also significant.

Background [ 3 ] The accused does not have any criminal record. Indeed, she is a person of prior good character, has a Fine Arts degree and hopes in the future to perhaps attend Emily Carr College. She comes from a professional background in which her parents are, and probably remain, architects. She has been to boarding school and has had many opportunities as she went through her adolescence into her teens and now into adulthood.

She acted completely out of character on June 15th of 2011. [ 4 ] Admissions of fact have been filed which set out the context of the riot, which context has been discussed both by this court and colleagues of mine in numerous decisions. [ 5 ] In this particular instance, the business in question is known as H&M, the proper corporate name, Hennes & Mauritz Incorporated. It is a retail store situated in the downtown core on Granville Street.

This was an area that was subjected to riotous behaviour by many on the 15th of June of 2011. [ 6 ] The store closed at or about 8:30 p.m., though some employees remained in the store for approximately an hour to an hour and a half after closing. They were evacuated from the store at some point before 10:27 p.m. It was at that time that there was a 911 call in which a security guard reported that the windows of the store had been broken and people had breached the store by entering into the store and looting the store.

A second 911 call was received at 10:35 pm reporting that people were seen smashing windows at the store. [ 7 ] From video footage that I viewed, it is clear that rioting individuals were smashing the windows by throwing mannequins at the windows, and using other implements to break the glass. The total loss to H&M was approximately $40,000. [ 8 ] It is important to determine the degree of participation of offenders in their rioting actions on that particular night. It has not been disputed by defence counsel and the characterization by Crown counsel of the accused's conduct.

Incorporating in part the admissions of fact, I find as follows. [ 9 ] The accused watched the game with friends at a residence. At approximately 8:00 p.m. after the game had ended, she went downtown with her boyfriend. At approximately 10:40 p.m., the accused ended up outside of H&M while the store was being broken into and looted. There were many people in the area at that time. [ 10 ] The accused broke into H&M by reaching through the window with her arm. She did not break the window. Rather, it had been broken at some earlier point by another individual.

Upon reaching in, she took some merchandise from a store rack that was inside the broken window. From the photographs that I have viewed at, that merchandise was clothing. After removing this merchandise, the accused is seen holding the merchandise up and, shortly thereafter, places this merchandise on a public bench outside H&M. The total time of her participation would be described as five seconds. [ 11 ] I do note from reviewing the filed materials that at the time that the accused broke and entered the store that she appears to have been in the company of her boyfriend.

Another individual is observed leaving the store. There are no other individuals, other than her boyfriend, around her at that time. [ 12 ] The accused was not responsible for any damage to the property and her entry did not disturb the property beyond taking of the clothing. The accused remained in the area for a period of time, but I find that she was not participating in any incitement of others, and indeed, it is important to note at this time, this was the closing stages of the riot. [ 13 ] On June 20th of 2011, she turned herself into the police in Vancouver. She was accompanied by a lawyer.

She provided details with respect to how the police could contact her which they latterly did when she was arrested on November 3rd of 2011. On the advice of counsel, she did not provide a statement to the police. However, she was crying during the attempt to take a statement from her. Position of the Parties [ 14 ] Crown counsel submits that a fit and proper sentence having regard to the principles of sentence is a conditional sentence in the order of two months with probation to follow with community work service.

It is emphasized by Crown counsel that the principles of denunciation and general deterrence are paramount and that rehabilitation and reformation is a principle of reduced importance. [ 15 ] Crown counsel identifies the mitigating circumstance as being the early guilty plea; the fact the accused has no criminal record; appears to have a bright future; has a good education.

The aggravating circumstances are that her actions took place during the course of the riot; that the action of one individual in the context of a riot ramps up the energy of others; that even first-time offenders, applying the decision of our Court of Appeal in Peepre 2013 BCCA 115 , can face the potential consequence of a jail sentence.

[ 16 ] Crown counsel also takes the position that looking at the principle of parity, that it is only in exceptional circumstances that a discharge has been granted in relation to a rioter and that exceptional circumstances do not apply to this accused. [ 17 ] Defence counsel takes the position that Crown counsel has fairly put before the court the circumstances of the case and that a conditional sentence order would not necessarily be inappropriate, but having regard to the circumstances of his client, the circumstances of the offence, that a fit and proper sentence would be a discharge on a conditional basis.

The imposition of a criminal record would have a significant impact on his client and her bright future, and that all of the principles of sentence can be met through the imposition of a discharge with significant probationary conditions including community work service hours. Circumstances of the Accused [ 18 ] The accused was born on June 14th of 1990. Indeed, her birthday was the day before the riot. As I indicated in the introduction, she comes from a good and caring background and has had the benefit of a good upbringing.

As was noted in the Pre- Sentence Report and confirmed by Defence Counsel, the accused has volunteered for many activities including the Vancouver Art Gallery, Breast Cancer Foundation, and others. The accused lost her employment as a result of her involvement in the riot. [ 19 ] She has provided through counsel a letter of apology to H&M indicating her remorse for her criminal actions. She describes that this process has been humbling for her.

She also provided a letter of apology to the executive board of the Community Arts Council of Vancouver. [ 20 ] The accused has a degree in Fine Arts which she received from the University of British Columbia and plans to take further courses and training in the Arts field. She is considering enrolling in Emily Carr College. [ 21 ] As was noted in the Pre-Sentence Report, the accused accepts full responsibility for her conduct and actions in the riot and, in the proposed interventions section, the author of the report notes that the accused has clearly demonstrated remorse.

The accused describes herself as a law-abiding citizen and cannot quite comprehend why she committed the entry into H&M. She lost her judgment for approximately five seconds. [ 22 ] It is noted in the Pre-Sentence Report as well that the accused was affected by the consumption of alcohol on this particular evening and had smoked some marihuana. That is not an excuse for her conduct, but perhaps an explanation for her conduct. [ 23 ] I note from viewing the video as to what was taking place and, in particular, the photos of the accused that she was readily identifiable.

No effort at all was made to disguise or mask her involvement. [ 24 ] In relation to the clothing that was removed, it does not appear from the photographs, that there was any effort to see if this clothing would, in fact, fit. This is unlike a case I recently dealt with where someone actually went into a store, tried on a jacket, did not like the jacket, he thought it was poorly made, and threw it away. [ 25 ] Perhaps, as Crown counsel has indicated, it would have been preferable for the accused to have kept the property and return it to the police the next day. She did not do it.

What became of the property is speculative, but it probably disappeared into the night along with many other items that were stolen. Legal Framework [ 26 ] The principles of sentence are contained in s. 718 through s. 718.2. In determining what is a fit and proper sentence, Madam Justice Arbour in R. v. Wust , [2000] 1 S.C.R., at paragraph 23 provided some guidance to courts. The Wust decision turned on mandatory minimum sentences. However, as noted by Madam Justice Arbour, principles with respect to application of

Part XXIII of the Code assist a sentencing court by providing guidelines. As noted in part, she had this to say: Several provisions of the Code , and of other federal statutes, provide for various forms of punishment upon conviction for an offence. Most enactments providing for the possibility of imprisonment do so by establishing a maximum term of imprisonment. In deciding on the appropriate sentence, the court is directed by

Part XXIII of the Code to consider various purposes and principles of sentencing, such as denunciation, general and specific deterrence, public safety, rehabilitation, restoration, proportionality, disparity, totality and restraint, and to take into account both aggravating and mitigating factors.

The case law provides additional guidelines, often in illustrating what an appropriate range of sentence might be in the circumstances of a particular case . [emphasis added] [ 27 ] This is not inconsistent with the approach taken by our Court of Appeal in Peepre , in which Madam Justice Garson, speaking for the court, reviewed two decisions of this court relating to the Canucks Riot.

There is no question that general deterrence and denunciation are paramount considerations, but she also notes at paragraph 25 in imposing a sentence, the "individual circumstances of an offender must always be considered." [ 28 ] At paragraph 30 of Peepre decision, Madam Justice Garson reviewed riot cases and that first-time offenders, including 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. [ 29 ] It is not a hard and fast rule as such a sentence shall always be subject to an individual's personal circumstances.

[30] Within this analysis, I am mindful of the application of s. 730 of the Criminal Code with respect to a discharge. A case thatdealt with a discharge and one which remains good law is R. v. Sanchez-Pino (1973), (ON CA), 11 C.C.C. (2d) 53,from the Ontario Court of Appeal, which reads in part as to when a discharge is appropriate as follows: The granting of some form of discharge must be "in the best interests of the accused". I take this to mean that deterrence of the offenderhimself is not a relevant consideration, in the circumstances, except to the extent required by conditions in a probation order.

Nor is hisrehabilitation through correctional or treatment centres, except to the same extent. Normally he will be a person of good character, or atleast of such character that the entry of a conviction against him may have significant repercussions. It must not be "contrary to thepublic interest" to grant some form of discharge. One element thereby brought in will be the necessity or otherwise of a sentence whichwill be a deterrent to others who may be minded to commit a like offence -- a standard part of the criteria for sentencing. [31] In R. v. Fallofield (1973), (BC CA), 13 C.C.C. (2d) 450, the B.C.

Court of Appeal in addressing the publicinterest component had this to say: In the context of the second condition the public interest in the deterrence of others, while it must be given due weight, does not precludethe judicious use of the discharge provisions. Application of the Legal Framework to the Case at Bar [32] The accused is a person of prior good character. In the context of riots, perhaps that is of less importance in the sentencingprocess, but it is a factor that I must take into account. [33] The accused has had some medical conditions that have caused problems to her.

She has suffered from depression and at timeshas experienced suicidal ideation. She is currently taking medication and has stabilized that condition. She has set goals in the futureand, notwithstanding her involvement in this riot, intends to go forward. This is a clear sign that the guilty plea has had significantimpact upon her. She has entered an early guilty plea. She went to the police several days after the riot and provided contact informationto them.

That in itself is an admission of her involvement in the riot. [34] With respect to the comparator of cases referenced in Peepre, she was not engaged in the type of activity described by MadamJustice Garson such as arson, assault, and other criminal acts. It is important to note that she did not break the window at H&M. Shereached in and took some property that was positioned on a rack. I would describe her action as a momentary or impulse action.

Sheabandoned the property within seconds after removing it from the rack. [35] I find from viewing of the materials that it was her, and her then-boyfriend, who were proximate to the break and enter by herand that her actions do not appear to have been inciting others. Nor did she disturb other property within the store. [36] One of the most recent decisions of this court dealing with s. 730 can be found in R. v. Ha, Unreported Decision, pronouncedDecember 9, 2013, Registry Number 223551-1-V, a decision of my sister Judge Werier.

I note at paragraph 8 of the Ha decision thatJudge Werier viewed a video excerpt in which it shows Mr. Ha entering The Bay through a broken window with other rioters and leavingapproximately 30 seconds later with merchandise in his hands. At the time of his participation, the riot was in full progress at 10:00 p.m. [37] As was noted, as well, at paragraph 11, notwithstanding the ongoing publicity concerning the riot, Mr. Ha did not turn himselfin to the police. He indicated that he was afraid to turn himself in to the police. This accused was not.

She knew there would beconsequences. [38] It was also noted by Judge Werier at paragraph 28 that though police were directing individuals to leave the area, Mr.

Haelected not to leave, but remained and "actively participating which also exacerbated the police efforts to disperse and to control thecrowd." [39] At paragraph 29, looking at the broader picture of the context of the riot, Judge Werier in part had this to say: His actions directly contributed to the fear and trauma experienced by the employees, customers, and loss prevention officers inside TheBay at the time of the looting. [40] I do note with respect to the looting of The Bay and also of London Drugs that individuals, employees, and other staff memberssuch as security guards were confined in The Bay and London Drugs and were terrorized by the riotous behaviour.

I appreciate Crowncounsel's position that while there may not have been any employees in the store at H&M, this may not have been known to the accused. However, in findings of Judge Werier, it appears that was a significant feature, that entry was made with others when staff werecontained on the seventh floor of The Bay with fire alarms going off, sprinklers going off, and the fear in the minds of those in The Baythat The Bay was on fire. [41] As noted by Madam Justice Arbour in Wust, totality and restraint must balance the guiding hand of a sentencing court.

As isalso noted, that case authority can provide guidelines, but guidelines only. As was noted by the Court of Appeal in Peepre, it is anindividualized process. [42] As was noted by my colleague, Judge Bastin, in R. v. Sophie Laboissonniere, 2013 BCPC 182 , 2013 BCPC 0182, hefound that the accused's actions were impulsive, lasted for a very short period of time, and that the registration of a criminal record wouldbe entirely disproportionate to the circumstances of the accused. He described it at paragraph 95 as potentially having "devastating

consequences for her and, in practical terms, could ruin her life." [ 43 ] I would find in conclusion that exceptional circumstances must be established before a discharge is to be granted in riot cases. As to what those exceptional circumstances are will be based on an individual approach based on the circumstances of the offender.

In my view, those circumstances apply in this case and that a discharge would be a fit and proper sentence. [ 44 ] Could you stand, please. [ 45 ] In my view, a proper fit sentence having regard to your circumstances and the circumstances of the offence is the imposition of a discharge on a conditional basis. [ 46 ] The victim fine surcharge shall apply and I will be enhancing that amount in the sum of $350.

Should that pose a hardship, you may apply under s. 737(5) to seek relief; granting to you time to pay the $350 to the 30th of May of 2014. [ 47 ] This discharge will be subject to a probation order of 16 months. These are the terms and conditions, that you keep the peace and be of good behaviour. [ 48 ] That you report in person to a probation officer on or before 4:00 p.m. on January 23rd of 2014 -- or is it 24th? I am getting tired here. [ 49 ] MR. MINES: The 24th -- [ 50 ] MS. LAKER: 24th. [ 51 ] THE COURT: 24th? [ 52 ] MR.

MINES: -- is tomorrow. [ 53 ] THE COURT: At 275 East Cordova Street, City of Vancouver, Province of British Columbia; thereafter, as, when, and where directed for the purpose of facilitating community work service hours. [ 54 ] You shall provide your address to and reside where directed by your probation officer and not change your residential address without the prior written permission of your probation officer. [ 55 ] Within 30 days of this order, you shall provide a letter of apology to your probation officer to the attention of the Chief Constable Chu and Mayor Gregor Robertson and to the people of the City of Vancouver apologizing for your conduct and action in a manner as approved by your probation officer. [ 56 ] Within the first 15 months of this order, you shall participate in and successfully complete 75 hours of community work service to the satisfaction of your probation officer. [ 57 ] You shall not attend at any H&M retail outlet in the Province of British Columbia and, for greater certainty, Madam Registrar, it should also be described as Hennes & Mauritz, Inc. [ 58 ] At the direction of your probation officer, you shall continue to seek out and maintain gainful employment or advance your education. [ 59 ] I pause here.

Part of your paying the community is you becoming a better person and part of that is being well educated. Our city and our province can use well-educated people who can repay for what you have done. You are going to do that for me, okay? [ 60 ] Those are the terms and conditions of the probation order.

If you complete all of the community work service hours and any of the other conditions such as a letter of apology, continue with your education, within that 16-month period, I see no reason why I would have to continue probation for you and you may come back to seek a review of your order to see if I should terminate the probation order. [ 61 ] The probation order requires a probation officer. The taxpayer has to pay for that person.

So if you have done everything I have told you to do, I may not feel that probation needs to continue. [ 62 ] If you successfully complete the probation order without any difficulty, the discharge is deemed to be an absolute discharge. However, I used to be a defence lawyer. Mr. Mines and Ms. Laker know this. It remains on your record. It may have an impact. I know it does. I have no control over that. [ 63 ] Simply from a Canadian law perspective, once your probationary period is completed, it is deemed to be an absolute discharge.

I do not know what the American authorities might do at the border, do you understand, or overseas, I do not know. That is something you have got to work out with your lawyer and be mindful of, if you plan to travel, that you do not want to have to go through secondary and find yourself thwarted at the airport and sent back. [ 64 ] That is the order. If the transcript is ordered, I reserve the privilege to review for editing purposes, check for punctuation. Content shall not alter content of the order, Madam Registrar.

Some of my closing comments, I, as well, will delete from the decision as being superfluous. [ 65 ] I can say this. You have been well represented by Mr. Mines. I have got two very good lawyers in front of me. This was a very difficult sentence. Do you understand that? [ 66 ] THE ACCUSED: Yes.

[ 67 ] MS. LAKER: Your Honour, and it is just one condition, is I know in the Laboissonniere decision, there was a curfew that was imposed for three months -- [ 68 ] THE COURT: Oh. [ 69 ] MS. LAKER: -- and I had asked Your Honour to -- [ 70 ] THE COURT: I know -- sorry. [ 71 ] MS. LAKER: -- consider that condition. [ 72 ] THE COURT: There was something that was on my mind.

I will go back to the order. [ 73 ] In my view, a curfew is appropriate and, accordingly, you shall be in your residence or on the lot on which it is situated for the first 90 days of this order, seven days per week, except with the prior written permission your probation officer, which permission you shall carry on your person and present same upon demand of any peace officer; or for traveling directly to, being at, and returning directly from scheduled medical appointments; or for traveling directly to, being at, and returning directly from your employment as confirmed with your probation officer; or for traveling directly to, being at, and returning directly from an education institution as approved by your probation officer; or for genuine medical emergency pertaining to yourself or an immediate family member. [ 74 ] If required to do so by a peace officer, you shall present yourself at the door of your residence to confirm curfew compliance. [ 75 ] For the first three months of this order, when outside of your residence, you shall carry a copy of this order upon your person and present same upon demand of any peace officer.

In other words, if you are out and about and the police pull you over and they say, "Hey, you're supposed to be indoors. Have you have got your order on you?" and you do not have it, that would be a breach, but that is something I am sure you are going to be -- you are a bright person. You know exactly what I am saying to you. [ 76 ] Anything else, Ms. Laker? [ 77 ] MS. LAKER: No, nothing else. Crown directs a stay of proceedings on Count 2. [REASONS FOR SENTENCE CONCLUDED]