R. v. Hill Date:, 2014 BCPC 145

Citation: R. v. Hill Date: 20140702 2014 BCPC 0145 File No: 223666-1-V Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CURTIS BLAINE HILL RULING ON CHARTER VOIR DIRE AND REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. F. GIARDINI Counsel for the Crown: Patti Tomasson; Michelle Booker Counsel for the Defendant: David Fai Place of Hearing: Vancouver , B.C. Dates of Hearing: Mar 6 - 7; Mar 25 - 27, 2014

Date of Oral Reasons: June 25, 2014 Date of Written Reasons: July 2, 2014 INTRODUCTION [ 1 ] Mr. Hill is charged with two offences arising from the June 15, 2011, riot that occurred in Vancouver, British Columbia, following game seven of the Stanley Cup playoffs. In particular, Mr. Hill is charged with participating in a riot contrary to s. 65 of the Criminal Code and with breaking and entering into London Drugs at 710 Granville Street with the intent to commit an indictable offence contrary to s. 348 (1) (

a) of the Criminal Code . [ 2 ] Before the trial began Mr. Hill gave notice he would apply for a judicial stay of proceedings under s.24 (1) of the Charter on the following basis: a. First, his right to be tried within a reasonable time, as guaranteed by s. 7 and 11 (

b) of the Charter , was infringed or denied. Mr. Hill does not take issue with the passage of time from June 15, 2011, the date of the riot, to June 12, 2012, when Constable Kane, who was assigned to investigate a suspect who turned out to be Mr. Hill, apparently concluded his investigation. However, Mr. Hill does take issue with the passage of time between June 12, 2012, and July 17, 2013, when the information charging Mr. Hill with the offences now before the court was sworn. b. Second the criminal proceedings against Mr.

Hill on these charges amount to an abuse of process contrary to s.7 of the Charter and his common-law rights. In particular, Mr. Hill says the passage of time affected trial fairness and specifically his right to make full answer and defence. Further, Mr.

Hill says that police conduct; namely, the publication of his photographs on the VPD website for an extended period of time amounted to a public shaming and affected the integrity of the judicial process. [ 3 ] During the course of the Charter voir dire the parties agreed that all evidence pertaining to the voir dire and to the trial proper could be heard together.

Accordingly, submissions on the Charter issue, as well as submissions on the substantive charges, were made at the end of the proceedings. [ 4 ] As a matter of convenience and for ease of reference I have set out the evidence and submissions relating to the Charter application and the substantive charges under separate headings. However, in analyzing the issues and in reaching my conclusions on both the Charter application and the substantive charges I have considered all of the relevant evidence adduced in this matter. ISSUES [ 5 ] The issues in regard to the Charter application are:

a) generally, whether Mr. Hill’s right to be tried within a reasonable time as guaranteed by ss. 7 and 11 (

b) of the Charter was infringed or denied;

b) whether the proceedings against Mr. Hill were an abuse of process under the common law and/or under s. 7 of the Charter , and in particular (

i) whether the delay adversely affected trial fairness; namely, Mr. Hill’s right to make full answer and defence, and (ii) whether the publication of photographs of Mr. Hill on the VPD website, in the circumstances of this case, affected the integrity of the judicial process. If an infringement of the Charter is established, I must determine whether a judicial stay of proceedings under s. 24 (1) Charter is appropriate. [ 6 ] On the substantive charges the Crown must establish beyond a reasonable doubt that:

a) Mr. Hill participated in a riot on June 15, 2011, and

b) Mr. Hill broke and entered into London Drugs on June 15, 2011, with the intent of committing an indictable offence. ADMISSIONS OF FACT [ 7 ] The parties filed written admissions which I have summarized below. The riot and identification 1) On June 15, 2011, the Vancouver Canucks played game seven of the Stanley Cup playoffs against the Boston Bruins in Vancouver, British Columbia. A riot occurred in the downtown core of Vancouver between approximately 7:30 pm June 15, 2011 and 12:30 am June 16, 2011.

2) Mr. Hill was present in the downtown core of Vancouver during the riot. 3) Identification of Mr. Hill is admitted. During the riot Mr. Hill was wearing dark pants and a long-sleeved dark shirt with a white design of half a skull on the front right hand side of the shirt. 4) Photographs tendered by the Crown in its book of documents and videos entered into evidence are admitted. There is no issue with respect to the continuity, admissibility and accuracy of the photographs and video evidence. 5) A

summary of the video contained in the Crown DVD, including timestamp references, produced by the Crown is admitted. The riot generally 6) On June 15, 2011, there were approximately 155,000 people in the downtown core of Vancouver during the hockey game at various venues including Rogers Arena, public viewing locations, private residences, restaurants and bars. 7) The main public viewing site (‘the live site”) was in the area around the Vancouver Public Library bounded by W. Georgia Street to the north, Robson Street to the south, Hamilton Street to the east, and Homer Street to the west.

Approximately 55,000 people watched the game at the live site. 8) Television coverage of the game began at 5:00 pm the Boston Bruins won the game at approximately 7:42 pm. 9) At approximately 7:43 pm a passenger vehicle (“the Versa”) was overturned and eventually set on fire at the live site. The riot started at this location and spread throughout the downtown core of Vancouver. 10) As the rioting crowds occupied W. Georgia Street and the surrounding areas, windows on many commercial premises were broken and the contents of the premises looted. Vehicles were vandalized, broken into, and set on fire.

Crowds of people faced off against the police and projectiles 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. 11) On that night 1035 emergency personnel were deployed to the downtown core of Vancouver. The vast majority of those personnel were police officers employed by the Vancouver Police Department (“the VPD”) and other Lower Mainland municipalities as well as RCMP officers.

There were also members of the Vancouver Fire and Rescue Services and members of the British Columbia Ambulance Service. 12) That evening there were more 911 calls in the four hour period after the game than there had been historically in any 24 hour period. 13) At approximately 8:17 pm that evening the ambulance services command determined that the area east of Burrard Street was not safe and they relocated all but six of their members to St. Paul’s hospital. The six who remained in the area were specially trained members of the ambulance services tactical support unit.

They were the only medical resource available in the area of the riot and they dealt with over 100 patients during the course of the riot. 14) Between 6:00 pm on June 15, 2011, and 6:00 am on June 16, 2011, St. Paul’s hospital dealt with 150 emergency room visits. In contrast, Vancouver General Hospital only dealt with 15 emergency room visits for the same period of time. St. Paul’s hospital set up a patient decontamination area outside of the emergency room to specifically deal with patients suffering from exposure to tear gas or pepper spray.

In addition to the people treated in the emergency room, another 100 persons were treated at the decontamination area. 15) The Integrated Riot Investigation Team (“IRIT”) of the VPD identified 297 riot events. A riot event is an incident relating to a particular location or a piece of property or a motor vehicle or a person. For example, the break and enter into London Drugs at 710 Granville Street, which involved looting of the store by approximately 300 persons, was recorded as a single event.

The 297 events identified included arsons, mischiefs, break and enters, and assaults. 16) There were 116 arrests in the area of the riot on the evening of June 15, 2011. 17) During the riot 112 businesses were damaged and 122 vehicles were damaged or destroyed, this included 93 civilian vehicles, five business vehicles, and 24 police and fire department vehicles. 18) The resulting monetary loss was $2,715,591.59 to businesses, $537,869 to civilians, and $524,730 to the City of Vancouver, ambulance services, and St.

Paul’s hospital. 19) As of February 2, 2012, the total estimated monetary loss as a result of the riot was $3,778,190.59. This figure is not a comprehensive representation of the total loss because 85 events had not provided estimates of loss and additional costs, such as lost wages or labour costs for businesses, were not included. 20) The psychological impact of the riot is difficult to quantify as personal experiences varied greatly.

Some persons barricaded themselves inside businesses for safety, others guarded their businesses against rioters, and a number of citizens defended property or other persons at risk to themselves. Some people have sought counseling. What is common to all is that the riot stripped a sense of safety and security from citizens of Vancouver. London Drugs 21) London Drugs was founded in 1945 as a small drugstore; today it is a chain of retail stores that sells a variety of items including pharmaceuticals, cosmetics, housewares, electronics and grocery items.

22) There is a London Drugs store located in the downtown core of Vancouver at 710 Granville Street (“London Drugs”). It is situated at the southeast corner of Granville and W. Georgia Street across from the Hudson’s Bay Company (“the Bay”) and the former Sears department store. 23) London Drugs at that downtown location has two retail floors open to the public. The main floor, which opens onto Granville Street, sells cosmetics, grocery items cigarettes and pharmaceuticals. The lower floor sells small appliances, electronics, cellular phones, cameras and computers.

The main door is on Granville Street but there is also an exit from the lower floor that leads into a connecting underground mall. 24) When London Drugs is closed the main entrance on Granville Street is secured by a steel gate which closes behind thick glass doors that form the main entrance. The gate is floor to ceiling in height and locks on either side of the main entrance. 25) On June 15, 2011, London Drugs was open and was scheduled close at 10:00 pm. There were 27 employees working at the store, six of whom were loss prevention officers.

Additionally, there were two private security guards hired to stay outside the store while it was open. During the course of the evening two additional loss prevention officers were reassigned to London Drugs from another store. 26) At approximately 7:40 pm the store supervisor decided to close the store early after observing an increasingly hostile crowd in the downtown core and receiving reports of a fire at the live site. 27) By approximately 8:00 pm the lower floor doors to the underground mall were closed and controlled by a store employee who provided customers in the store an opportunity to leave.

At this time, employees also closed the doors at the main entrance by locking both the steel gate and the exterior glass doors. 28) Over the next hour, store employees heard intermittent banging sounds as people began to attack the glass doors and other windows at the main entrance of London Drugs.

The store supervisor directed the employees to stay away from the main entrance in an effort to minimize attacks to the store front by the increasingly hostile crowd outside. 29) Members of the crowd outside the London Drugs were smashing the windows of many businesses within the immediate vicinity of London Drugs and stealing merchandise. For example, the Bay and Sears had numerous windows smashed and several thousand dollars’ worth of merchandise stolen by looters. A number of parked cars were also damaged and set on fire near the London Drugs.

For example, three vehicles located beside the Bay on the 600 block of Seymour Street were set on fire. This was one block away from the London Drugs. 30) The store employees inside the London Drugs watched the riot occurring around them from live news broadcasts displayed on televisions in the electronics department which was on the lower level of the store.

Given the nature of the riot, the London Drugs employees remained inside the store for their safety. 31) At approximately 9:50 pm the store employees removed the cash terminal safe boxes bolted beneath each cash register and locked all the safe boxes in the London Drugs safe. At this point in time members of the crowd outside the London Drugs had lit a tree on fire. The tree was located directly in front of the London Drugs main entrance. Shortly thereafter, members of the crowd outside began to attack the glass doors and windows of the London Drugs with increased intensity.

Out of concern for safety, the store supervisor directed all store employees to hide in a small windowless security room located on the basement level of the store. 32) The security room contained the components of London Drugs CCTV system. In particular the security room had television screens which displayed various camera angles of the store’s CCTV system. The security room also contained equipment which allowed the loss prevention officers to manually control the CCTV camera angles and utilize the zoom-in and zoom- out functions.

During the riot the loss prevention officers were able to view, capture, and record the activities occurring at the main entrance and throughout the store. Some of those video images were entered as exhibits in these proceedings. 33) At approximately 10:00 pm members of the crowd began smashing the exterior glass doors using various items. Within approximately 10 minutes the crowd had broken through the exterior glass doors, entered into the front foyer area, and began rocking the steel gate back and forth to gain access to the store. 34) Mr.

Dhaliwal, a loss prevention officer at the London Drugs made at least three calls to 911 asking for help. 35) By approximately 10:15 pm the crowd had completely breached the front entrance to the store and many people broke into the store, overturned display cases, and stole merchandise. The entire break-in and looting of the London Drugs lasted approximately 25 minutes. It was estimated that 300 people broke in and looted the store. 36) None of the store employees were physically injured, however, many were traumatized. 37) London Drugs suffered extensive damage and financial loss as a result of the riot.

Many of the exterior windows of the store, including the front glass doors and the steel gate, were broken and display cases were destroyed. There was significant merchandise loss and loss due to the cost of construction repair. The financial loss to London Drugs was $895,782.69; this included $139,327.03 to repair the damage and $756,455.66 in stolen and/or damaged merchandise. Photographs of the exterior of the London Drugs taken after the riot depicting the area where Mr. Hill entered London Drugs and the interior of London Drugs and also depicting the area where Mr.

Hill walked and ran around London Drugs on the night of the riot were entered as exhibits in these proceedings.

THE CHARTER APPLICATION Timeline Pertaining to the Charter Application [ 8 ] The timeline of events after the riot that led to charges being laid against Mr. Hill is set out below. This timeline provides a general overview of what occurred in chronological order. The parties, however, emphasized different parts of the timeline in their submissions on the Charter application. • June 16, 2011 -- Detective Constable Fenton, a member of the technological crime unit of the VPD was assigned the task of downloading social media links that captured videos or photographs from the riot and suggested names of suspects.

He did this between June 16, 2011, and September 2011. • June 16, 2011 to July 16, 2011 -- 37 people turned themselves in to IRIT. Other people turned themselves in between July and mid-September so that by September 21, 2011, a total of 70 people had turned themselves in to police. • June 16, 2011 to December 31, 2011 -- The VPD together with the seven other partner police agencies conducted investigations relating to the riot. • June 16, 2011 to August 30, 2011 -- A website was created by IRIT to assist in the identification of riot suspects.

The public could access this website and view photographs of suspected rioters and provide information identifying those suspects. • August 30, 2011 -- The first posting was made to the website. It consisted of photographs of 40 suspects.

Images of additional suspects were posted to the website on a weekly basis. • November 2011 -- IRIT produced a poster of photographs of suspects which was distributed to the public. • December 31, 2011 to June 30, 2012 -- VPD riot related investigations continued and some of the partner police agencies extended the term of secondment of their members to continue to assist in the investigation. • January 31, 2012 -- The VPD website was re-launched with video capability. It contained hundreds of new photographs of suspects. A photograph of Mr.

Hill was uploaded on the VPD website. • February 21, 2012 to June 26, 2012 -- Constable David Kane joined the IRIT from his general duty assignment with the Surrey RCMP. Constable Kane was the initial investigator assigned to Mr. Hill’s case. • February 27, 2012 -- Constable Kane was assigned to investigate the person depicted in IRIT target #00206. Constable Kane conducted an inquiry regarding target #00206 on the IRIT information system database. He noted that several tips had been received through the IRIT website identifying the suspect as Curtis Hill with an approximate age of 33 years.

One of the tips was received from a VPD officer who provided Mr. Hill’s home address in Burnaby, British Columbia. Constable Kane also ran the name Hill on the PRIME database and viewed a picture that appeared to be that of suspect #00206. • March 1, 2012 -- Constable Kane conducted a search of the AVID system for video and/or pictures depicting Mr. Hill’s activities during the Stanley Cup riot. He did so by using certain search filters. As a result of that search Constable Kane found several video clips that depicted Mr.

Hill entering London Drugs at the time of the riot and then leaving. (In cross-examination it was established that AVID is the company name for a software program that allows the operator to manually add a tag or descriptor to a photograph. AVID is not facial recognition software. AVID helps create a searchable database for specific descriptions. The descriptor has to be manually added.

Once it is added, the program allows the investigator to search for all photographs tagged with a particular descriptor/descriptors.) • March 8, 2012 -- Constable Kane received an email from another officer telling him of a tip regarding Mr. Hill. Constable Kane contacted that officer and was told that the tipster, who wished to remain anonymous, had identified suspect #00206 as Curtis Hill. • March 20, 2012 -- Constable Kane conducted another inquiry on the IRIT information system. Several tips had been received regarding suspect #00206.

One of them was followed up but proved to be inaccurate. • May 24, 2012 -- Constable Kane conducted an inquiry using the CPIC database. He noted that Mr. Hill was bound by a probation order which expired in May 2013. Constable Kane contacted the probation officer asking if she would be willing to view several photographs. He did not say anything about the identity or possible identity of the person in the photographs. • May 25, 2012 -- After viewing two photographs that Constable Kane had forwarded from the IRIT website, the probation officer identified the person in the photographs as Mr.

Hill. • On June 12, 2012 -- Constable Kane conducted an additional search on the AVID database. He found no video footage, other than that found previously. Constable Kane decided to conclude the file with a no charge recommendation. • January 30, 2013 -- Detective Constable Latrace took over the investigation of IRIT suspect #00206. She made further inquiries and eventually called Mr. Hill’s father who told her he would have Mr. Hill contact her. About 10 minutes later, Detective Constable Latrace received a call from a man identifying himself as Curtis Hill. Later Mr.

Hill went to the VPD office on Graveley Street. He met with Detective Constable Latrace who told him he was under arrest for participating in a riot and for break and enter. He was released later that day and told the charges would be forwarded to Crown counsel. • February 4, 2013 -- Detective Constable Latrace advised that Mr. Hill’s photograph could be removed from the website. She did this before she completed the report to Crown counsel. • April 19, 2013 -- The reports regarding Mr. Hill were forwarded Crown counsel.

• July 17, 2013 -- The information pertaining to the charges now before the court was sworn. • July 18, 2013 -- Mr. Hill turned himself in to police and was released on an undertaking given to the police. Constable Nash’s evidence [ 9 ] Detective Constable Nash provided a very detailed affidavit and also testified in these proceedings. On June 15, 2011, he was a police officer with the VPD assigned to the bike squad and public order group. Immediately following the riot he was assigned to IRIT as a general investigator. He later became the acting sergeant in charge of the Forensic Video Unit for IRIT.

At the time he testified he was the acting sergeant in charge of IRIT and also the liaison officer for London Drugs. [ 10 ] Detective Constable Nash was working in the downtown core at the time the riot occurred. He had worked during the previous six hockey games and noted there was an obvious difference in mood during the final game on June 15, 2011. Detective Constable Nash testified about what he did that evening, the actions he took in relation to specific incidents and what he generally observed in the downtown core.

His short vignettes and general observations described a situation that started with what appeared to be isolated incidents of disorder and violence but which soon escalated to overwhelming and generalized turmoil in the downtown core of Vancouver. [ 11 ] Detective Constable Nash testified that people in the downtown core were free to leave the riot area if they wanted. There were no police blockades. It may have been difficult for people to move quickly in some locations, however, it was still possible for people to leave the riot area.

Detective Constable Nash said one of the main tactics used by the police was dispersal. The police allowed for the free flow of people up and down the lane adjacent to Granville Street but not on Granville Street. [ 12 ] The police investigation into the riot began as soon as the Vancouver downtown core was cleared. The entire downtown core was a crime scene and officers from all four VPD districts were involved in contacting businesses, victims and so on. It was like any other investigation except, given the scope of the riot, it was a thousand times larger.

Identification alone (i.e. taking fingerprints, blood samples etc.) was a mammoth task. Additionally, there were various arson investigations. Further, the police received 2000-plus 911 calls. Many of them were duplicates, but they nevertheless had to be “cleared”. Many of the calls could be cleared at the patrol level but there was also additional, ongoing work at the investigative level; for example, following up with victims, etc. The investigation is fact in still continuing in 2014. [ 13 ] There were voluminous amounts of video evidence.

Detective Constable Fenton, a member of the technical crime unit, began reviewing, assessing, and compiling video- related evidence on his own initiative on the evening of the riot. Video evidence included videos and pictures posted on Facebook, Twitter, Flickr and various other websites. [ 14 ] In the days immediately following the riot IRIT was inundated with information from the public that had to be assessed and processed by investigators. There were a total of 2448 contacts from the public; this did not include Crime Stoppers tips and additional emails.

The response from the public was so great that the volume of responses caused the VPD server to crash several times. The task of reviewing the large amount of information police received was onerous.

Each contact had to be checked and double checked, sometimes by several different officers, in order to verify information, seek clarification etc. [ 15 ] In addition to responding to information provided by the public, investigators had a number of other tasks to complete; such as, contacting and interviewing victims, interviewing participants, interviewing suspects who turned themselves in and drafting informations to obtain production orders for videos of the riot from media agencies. [ 16 ] On August 30, 2011, the VPD website was up and running.

The primary purpose of the website was to identify people involved in the 2011 riot. Initially, the photographs of 40 suspects were posted on the website. Viewers could complete a form online, anonymously or not, and provide information about any of the suspects in the photographs. Initially, there was also a tab on the website informing suspects how to turn themselves in.

The images placed on the website were vetted by the investigating team to make sure the person depicted had not already turned him or herself in, and to ensure the person was not clearly a youth or someone already under investigation whose identification was already established. [ 17 ] In the first few hours of operation there were 2200 visits per hour on the VPD website and 50 tips were received. Within three days of the website becoming operational it received over 100,000 visits and over 225 tips. Photographs of new suspects were added almost every week.

The website was re-launched in January 2012 and had video capability at that time. Hundreds of new suspect photographs were also published on the website. [ 18 ] An important police priority was processing the large amount of video evidence. Some of the video evidence was sent to IRIT by members of the public; other video evidence was seized by investigators or captured from social media websites. The investigation involved contacting and interviewing videographers as well as attempting to identify the source of videos found on social media websites.

In order to deal with the voluminous amount of video evidence, including converting the various formats to a common viewable format, IRIT used the services of the Law Enforcement and Emergency Services Video Association International (“LEVA”) located in Indianapolis, Indiana. This was the only video laboratory in North America available at the time that had the facilities necessary to review and process the volume of video evidence received by IRIT. [ 19 ] In the fall of 2011, using the resources of LEVA, IRIT processed riot video evidence in a two-week period.

In order to do so, 51 forensic video analysts and investigators from over 40 law enforcement agencies worked on processing the videos. They spent over 4000 hours, working 24 hours a day, seven days a week to complete processing the video materials in that 14 day period. At that point however the VPD had yet to obtain the videos, photographs etc. of the major media outlets that had covered the riot. [ 20 ] The VPD purchased six AVID workstations in order to continue doing the work in Vancouver. The court orders for production of the media footage were granted in September 2011.

The media footage was received in January 2012. By late March 2012 the VPD

had the ability to search the media footage it had received by using the AVID system. The video materials obtained contained over 5500 hours of video and 29,700 photographs. New video materials were received by the police as they became available; the most recent was obtained in November 2013. [ 21 ] Detective Constable Nash testified that thousands of people participated in the riot; however, IRIT only became aware of those people who were captured on video or who were identified by tips from the public. Once the videos and photographs were processed, the police identified an estimated 2000 suspects.

However, investigators were able to locate facial images of sufficiently good quality to only identify approximately 1000 of those suspects. The information came from videos and photographs and tips submitted to the police. The police were able to create usable images for about 900 suspects. Up to the date of this trial, only 450 of those 900 suspects had been identified by name. Detective Constable Nash noted that a policy decision was made by the VPD that individuals who were to be investigated by IRIT had to have committed another offence in addition to simply participating in the riot.

Detective Constable Nash’s Testimony re Hill investigation [ 22 ] Detective Constable Nash testified specifically about the investigation of Mr. Hill whose photograph was put on the VPD website on January 31, 2012. That was the date the website was re-launched. The VPD had not received any information about Mr. Hill before that date. Mr. Hill’s photograph was one of approximately 300-plus new photographs that were posted that day. Altogether there were photographs for approximately 400 individual suspects on the website. [ 23 ] On February 21, 2012, the VPD started to receive tips regarding Mr. Hill.

This continued until September 1, 2012. On February 27, 2012, Constable Kane was assigned to investigate Mr. Hill. His investigation continued until June 12, 2012. On June 21, 2012, Detective Constable Nash communicated with Constable Kane via email regarding the AVID search being conducted on Mr. Hill. At that point IRIT was keeping three folders regarding AVID searches (one with forms, another for unfinished searches, and a third for finished searches). Detective Constable Nash noted there were two searches in the unfinished search folder on files assigned to Constable Kane. One of the searches pertained to Mr.

Hill. Detective Constable Nash asked Constable Kane what he wanted to do with the two searches. Constable Kane indicated the search regarding Mr. Hill should be kept in the unfinished folder but the other search had been completed and sent to Crown counsel. Constable Kane never told Detective Constable Nash that he had decided not to further pursue the investigation of Mr. Hill. [ 24 ] In cross-examination Detective Constable Nash said he communicated with Constable Kane by email. Constable Kane told him to leave Mr. Hill’s file as unfinished.

At that point Detective Constable Nash did not look at the Justin report. He only found out Constable Kane had closed Mr. Hill’s file a few weeks before he testified at this trial. Detective Constable Nash did not know if Constable Kane had discussions with anyone else about closing the file. The correct procedure would have been to speak to Inspector Rankin. [ 25 ] Beginning in June 2012 some officers who had been seconded to IRIT left and were not replaced.

In January 2013 the officers remaining in IRIT had time to look at unfinished files/searches left behind by officers who had returned to their regular assignments. On January 14, 2013, Detective Constable Nash sent out an email regarding the work to be done. There were seven names of targets on his list of unfinished files; one of them was Mr. Hill. Detective Constable Latrace volunteered to take responsibility for that file. [ 26 ] On January 30, 2013, Mr. Hill was contacted by Detective Constable Latrace.

On February 4, 2013, Detective Constable Latrace sent information to Detective Constable Nash that she was satisfied about the identification of Mr. Hill and his picture could be removed from the website. This was before she had completed her report to Crown counsel. On April 19, 2013, Detective Constable Latrace sent her report to Crown counsel. On July 17, 2013, an information was laid charging Mr. Hill. The warrant issued was an endorsed warrant so the conditions of his release could be communicated to the jail. The police used endorsed warrants for the vast majority of riot suspects.

Furthermore, the warrants were held for one week to allow suspects to turn themselves in. The officer swearing the information contacted the suspect. In Mr. Hill’s case Mr. Fai had already been in touch with the Crown, so he was contacted regarding the warrant. Mr. Hill turned himself in and was released the same day on a promise to appear with conditions. [ 27 ] Detective Constable Nash said the practice at IRIT was that as soon as the police were satisfied about the identification of a particular target the person’s photographs were removed from the website.

Detective Constable Nash also testified that in addition to supervisory responsibilities he also undertook investigations. He was aware the procedure within IRIT was that in cases where no charge was contemplated the file was to be discussed with the lead investigator, Inspector Rankin. Detective Constable Nash himself spoke to Inspector Rankin about two targets against whom he recommended no charges. However, Constable Rankin instructed him to prepare and submit a report to Crown counsel for their review and recommendation about charges. Mr. Hill’s Evidence Specifically Pertaining to Charter [ 28 ] Mr.

Hill’s position, which from time to time was stated during his testimony, was that his memory of events on the night of the riot was not very good and it has been greatly diminished over time. Accordingly, he suffered prejudice and his right to make full answer and defence was impaired. A number of times during his testimony Mr. Hill said he did not remember. At other times he appeared to be struggling to remember. He testified that the time frames he gave in answer to questions, particularly in cross-examination, were “assumed” or an approximation. [ 29 ] Mr.

Hill indicated he was embarrassed and stigmatized by having his photograph on the VPD website, particularly so during the period after June 12, 2012, when Constable Kane apparently closed his file. Mr. Hill testified he did not feel he had done anything wrong. He did not go to or look at the VPD website. However, some friends, his daughter and other people told him his picture was on the website. He could not remember the date or dates they told him this. In total approximately 10 people told him his photograph was on the VPD website.

He said a friend showed him a photograph (which I took to mean a photograph from the website) but he believed it was a long time after the riot, possibly as long as 1 or 1½ years later. In cross-examination, it was put to Mr. Hill that he had nothing to complain about regarding the time period the photograph was on the website. He said he did. He felt ashamed. Further, he felt the police left his picture on the website to publicly shame him. He felt he had not done anything wrong. He was asked whether he thought the

police were targeting him to publicly shame him. Mr. Hill said he did and wondered why they had not contacted him once he had beenidentified by his probation officer. Position of the Parties on Charter Application The defence [30] The defence argues there were two overlapping periods of delay; namely, the first from June 12, 2012, when Constable Kanewrote his police report, to April 19, 2013, when Constable Latrace submitted her report to Crown counsel. This first period of delay was10 months and one week. The second period of delay was from June 12, 2012, to February 4, 2013, when Mr.

Hill’s picture was removedfrom the VPD website. [31] Mr. Hill relies on two types of abuse of process. One is the manner in which the police carried out the investigation whichresulted in delay and thus affected his right to a fair trial. Mr. Hill argues the delay impaired his ability to make full answer and defencebecause of the passage of time and fading memories. Mr. Hill notes that, in part, the delay was attributable to Constable Kane, who didnot follow the IRIT procedure for investigating and charging suspects in the riot investigation. Mr.

Hill notes, inexplicably, ConstableKane wrote a report to Crown counsel but told Detective Constable Nash that the investigation was unfinished. Constable Kane did notsubmit his recommendation to the lead investigator. If he had done so, Mr. Hill’s file would have been reviewed and would have beeneither closed or submitted to Crown counsel. Mr.

Hill submits, instead, because of Constable Kane’s error, the file sat from June 12,2012, to late January 2013, when it was assigned to Detective Constable Latrace. [32] The second type of abuse of process in this case was conduct of the police during the investigation that affected the integrity ofthe judicial process. In particular, Mr. Hill relies on the period of time (from June 2012 to February 2013) that his picture remained onthe website after he had already been identified. He argues this was a form of public shaming. [33] Mr.

Hill argues that Detective Constable Latrace’s actions added nothing to the investigation. He submits the investigation wasessentially complete on June 12, 2012. The result was that Mr. Hill’s photographs remained on the VPD website from June 12, 2012 toFebruary 4, 2013. This additional period of time that the photographs remained on the VPD website constituted a public shaming.People, including Mr. Hill’s own daughter, saw the photographs and told him they had seen them on the police website.

The Crown [34] The Crown submits that a stay cannot be granted solely because there has been delay in charging an accused. The Crownfurther submits a stay can only be granted if an accused is able to establish prejudice. The Crown notes Mr. Hill is relying on two typesof abuse of process; namely, conduct that affects the fairness of his trial and conduct that affects the integrity of the judicial process. [35] As to conduct which affects the fairness of the trial, the accused asserts that he was prejudiced due to delay from June 2012 toFebruary 2013. The Crown argues that the difficulty with Mr.

Hill’s submission on this point is that he acknowledged he knew hisphotograph was on the VPD website and on the VPD riot poster. Accordingly, he knew long before July 2013 when he was formallycharged, that he was a suspect and that he may have to account for his conduct. Further, the Crown argues, Mr. Hill’s claim that hecannot make full answer and defence is belied by his testimony, during which he demonstrated he had a good recollection of manyevents, and by the fact of the video evidence which depicts what occurred on the night of the riot and specifically depicts Mr.

Hill’sactions. [36] The Crown argues the onus is on Mr. Hill to establish, on a balance of probabilities, that some state conduct affected his right toa fair trial or affected the integrity of the judicial process. The Crown argues the court must consider the points raised by Mr. Hill in thecontext of the particular circumstances of the Stanley Cup riot. It submits Mr. Hill has not proven that delay prejudiced his right to have afair trial or his right to make full answer and defence. Additionally, the Crown submits the “public shaming” complained of by Mr.

Hill,by virtue of the fact that photographs of him were on the VPD website for a number of months, goes to the issue of whether the integrityof the judicial process was compromised. The Crown says it was not; there was no evidence that public shaming was the intention of thepolice. Moreover, the Crown argues there was nothing abusive in the police’s decision to use appropriate investigative technology in acase such as the riot which involved mass disorder. Charter Application -- Legal Principles and Analysis Delay [37]

Section 11 (

b) of the Charter provides that a person charged with an offence has the right to be tried within a reasonable time.In R. v. Kalanj, (SCC), [1989] 1 S.C.R. 1594, the Supreme Court of Canada held that s.11 (

b) generally only appliesonce an information charging an accused is sworn. McIntyre J. noted that s. 11 is limited in its terms to a special group of persons;namely, those “charged with an offence”. However, in special circumstances pre-charge delay may merit some consideration, in theinterests of justice, because of prejudice which could result from its occurrence.

Nevertheless, McIntyre J. noted that “the exceptionalcases should be dealt with by reliance on the general rules of law and, where necessary, the other sections of the Charter.” [38] In particular, McIntyre J. pointed out that the investigatory period, prior to the charge being late, is wholly unpredictable.Accordingly, no reasonable assessment of what is a reasonable time can be readily made. He noted that circumstances differ from case tocase. Further, a court will rarely be able to fix in any realistic manner a time limit for the investigation of a particular offence. In R. v.

Morin, (SCC), [1992] 1 S.C.R. 771, the court reviewed the purpose of s.11 (b). It noted the primary purpose ofthat

section is the protection of the individual rights of the accused; the secondary purpose is the interest of society as a whole. Theindividual rights which the

section seeks to protect are: (

a) the right to security of the person, (

b) the right to liberty, and (

c) the right to afair trial. [39] In R. v. S. A. 2011 NUCJ 7 , 2011 NUCJ 07, Sharkey J. noted there are three common situations were delay in

bringing a case to court may give rise to a remedy: (

a) delay between the time an alleged offence occurs and when it is reported toauthorities; (

b) delay between the time the alleged offence is reported to authorities and when the authorities lay a charge; and (

c) delaybetween the time an information is sworn and the trial date. Sharkey J. noted the authorities are clear that the period to be scrutinizedunder s.11 (

b) is the time elapsed from the date of the charge to the date of the trial: see para 73. He also noted that any prior period ofdelay is not analyzed under s.11 (

b) but instead is analyzed within the context of abuse of process, either under the common law or as abreach of s.7 of the Charter. Abuse of process [40]

Section 7 of the Charter provides that everyone has the right to life, liberty and security of the person and the right not to bedeprived thereof except in accordance with the principles of fundamental justice. The burden of proof to establish a Charter violation isthe balance of probabilities. There is also a residual discretion, at common law, which allows superior courts to stay criminal proceedingsfor abuse of process. The burden of proof on an applicant under the common law power is the more onerous “clearest of cases” standard. [41] In R. v.

O’Connor, (SCC), [1995] 4 S.C.R. 411, L’Heureux-Dubé J., writing for the unanimous court on thisissue, subsumed the common law doctrine of abuse of process into the principles of the Charter.

She said that conducting a prosecutionin a manner that contravenes the community’s basic sense of decency and fair play and thereby calls into question the integrity of thesystem is also an affront of constitutional magnitude to the rights of the individual accused: see para. 63. [42] She also acknowledged the existence of a residual category of abuse of process in which an individual’s right to a fair trial is notimplicated.

The residual category relates to the many diverse and sometimes unforeseeable circumstances in which a prosecution isconducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justiceand thus undermines the integrity of the judicial process: see para. 73. She said there was no practical utility in maintaining two separateanalytical regimes. She held that when courts are considering whether the judicial process has been abused, the Charter and commonlaw doctrines of abuse of process will dovetail. [43] In R. v. L. (W.

K.), (SCC), [1991] 1 S.C.R. 1091, the Supreme Court of Canada held that delay in charging andprosecuting a person, without more, cannot justify staying the proceedings as an abuse of process. This is because staying proceedingsbased solely on the mere passage of time would be equivalent to imposing a judicially-created limitation period for criminal offences. Inorder for pre-charge delay to result in a stay of proceedings, the accused must establish he suffered actual or substantial prejudice to hisright to a fair trial: see also R. v. Singleton 2010 BCSC 1855. [44] In R. v.

L. (W.K.) the court, relying on Rourke v. The Queen, (SCC), [1978] 1 S.C.R. 1021, also said, in theabsence of finding that the delay in apprehending the accused had some ulterior purpose, the courts are in no position to find that thepolice did not proceed expeditiously enough in their investigation and then impose a stay of proceedings. Further courts cannot assess thefairness of the particular trial without considering the particular circumstances of the case. [45] In a very recent case, R. v. Babos, 2014 SCC 16 , [2014] S.C.J.

No.16, the court noted that a stay of proceedings is themost drastic remedy a criminal court can order: R. v. Regan, 2002 SCC 12. A stay permanently halts the prosecution of an accused andin so doing the truth seeking function of the trial is frustrated. Moreover, the public is deprived of the opportunity to see justice done onthe merits. However, the court noted there are rare occasions – – “the clearest of cases” – – when a stay of proceedings for an abuse ofprocess will be warranted. These cases generally fall into two categories: (

a) where state conduct compromises the fairness of anaccused’s trial; and (

b) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process:see para. 31. [46] The court further noted that the test used to determine whether a stay of proceedings is warranted is the same for bothcategories of cases and consists of three requirements:

a) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated,or aggravated through the conduct of the trial, or by its outcome”.

b) There must be no alternative remedy capable of redressing the prejudice.

c) Where there is uncertainty over whether a stay is warranted after the two above- noted steps, the court is required to balance theinterests in favour of granting a stay; such as, denouncing misconduct and preserving the integrity of the justice system, against “theinterest that society has in having a final decision on the merits”. [47] Although the test is the same for both categories, the test may play out differently depending on whether the main category (theconduct compromises the fairness of an accused’s trial) or residual category (the conduct risks undermining the integrity of the judicialprocess) is invoked.

When the main category is invoked the question at the first stage is whether the accused’s right to a fair trial hasbeen prejudiced and whether that prejudice will be carried forward through the conduct of the trial. Simply put, is there ongoingunfairness to the accused.

However, where the residual category is invoked, the question is whether the state has engaged in conduct thatis offensive to societal notions of fair play and decency and further, whether proceeding with the trial, in light of that conduct, would beharmful to the integrity of the justice system. [48] Other legal principles relating to abuse of process and the appropriateness of a stay are also relevant in the circumstances of thiscase. First, the court’s observations in R. v.

Reagan make it clear that judges determining an abuse of process issue must consider thedistinction between prejudice suffered as a consequence of state misconduct or the impairment of the accused ability to make full answerand defence and prejudice which invariably arises from the mere fact of having been charged: see also R. v. Nixon, 2011 SCC 34 and R.v. Vander Wier, [2013] O.J. No. 6254. [49] Second, an assertion that delay has prejudiced an accused must be assessed in the context of the particular circumstances of thecase: R. v. L. (W.K.) at para. 25.

[50] Third, the test for abuse of process does not permit the court to regulate police resources: R. v. Young, (ONCA), [1984] O.J. No. 3229, at paras. 90-92. [51] Fourth, the simple fact the police decided not to proceed with charges, but later reconsidered and changed their mind, may notbe a sufficient basis to order a stay. In R. v. J.W., (ON CA), [2004] O.J. No. 3591, the Ontario Court of Appealconsidered an appeal from convictions of sexual offences involving incest. J.W. had been initially investigated but the police decided notto proceed with criminal charges.

The incest allegations were re-examined 15 years later and, although that investigation did not lead tocharges, the interview with one of the complainants brought new allegations to the attention of the police. J.W. argued that proceedingwith charges 15 years after a decision had been made not to proceed amounted to an abuse of process. The court noted that a stay will bejustified only in the clearest of cases. It further noted that: “Society has a genuine interest in the prosecution of serious offences like thoseinvolving the appellant and his sister.

A decision by the police to reconsider what may have been an unwise earlier decision, is not in andof itself an affront to the community’s sense of fair play.” J.W.’s appeal was dismissed: see also R. v. Vander Wier. [52] In a case decided by our Court of Appeal, R. v. D.A.C., (BC CA), [1996] B.C.J. No. 583, the court upheldthe trial judge’s decision not to grant a stay of proceedings where an initial decision not to lay a charge had been made but seven yearslater the matter was reopened and charges were laid.

The court noted there was no substantial prejudice through the loss of evidence.Further, the accused’s right to make full answer and defence was not undermined. Although the accused was lulled into a sense of falsesecurity by being told the file was closed, that was not a sufficient reason for granting the extraordinary remedy of a judicial stay basedon an abuse of process amounting to a lack of fundamental justice. Application of Legal Principles to Facts of this Case [53] I begin my analysis of Mr.

Hill’s Charter application by noting this is not a case of “unreasonable delay” from the date thecharges were laid to the date of the trial, which is typically dealt with under s. 11 (

b) of the Charter. Mr. Hill acknowledged theinvestigation of riot suspects was a massive undertaking that required considerable time and police resources. He did not take issue withthe time that elapsed between the date of the riot and June 12, 2012, when Constable Kane apparently concluded his investigation.Instead, Mr. Hill’s application focused on the pre-charge delay that occurred between June 12, 2012, when Constable Kane apparentlyconcluded his investigation and did not forward the file to Crown counsel, and July 17, 2013, approximately 13 months later when theinformation charging Mr.

Hill was sworn. [54] Mr. Hill argues that by June 12, 2012, Constable Kane had ascertained the identity of suspect #00206 and concluded thatsuspect was Mr. Hill. Moreover, Mr. Hill asserts that on or about June 12, 2012, Constable Kane decided to conclude the file with a nocharge recommendation. Mr. Hill relies on information contained in the report to Crown counsel which summarized Constable Kane’sinvolvement in the investigation. In that report it was noted that, based on lack of evidence, the investigation would be concluded with ano charge recommendation. Further, Mr.

Hill argues there was an unexplained delay from June 12, 2012, to January 30, 2013, whendetective Constable Latrace took over the investigation of Mr. Hill. Additionally, Mr. Hill argues that Detective Constable Latrace addedvirtually nothing to the information already on file. All she really did was contact Mr. Hill’s father, who in turn contacted Mr. Hill, whoin turn presented himself at the police station that day. Accordingly, the defence asserts, for all intents and purposes, the investigationwas complete and the matter is one of post investigation pre-charge delay. Mr. Hill cites R. v.

M.L.M. (ABQB), for anumber of propositions including the proposition that pre-charge delay is relevant because it is not the length of the delay which mattersbut rather the effect of that delay upon the fairness of the trial. [55] The evidence of Detective Constable Nash clearly established that investigation of the June 15, 2011, riot and suspects relatedthereto was a massive undertaking not only immediately following the riot but also in the weeks and months that followed. In fact, theinvestigation of suspects continues today. I accept his evidence that: (

a) the police spent considerable time, resources, and money ininvestigating possible suspects and (

b) the investigation process was time-consuming given the scale of the riot, the number of suspectsbeing investigated and the challenges faced by the police in identifying suspects the majority of whom came to police attention becausethey were captured on videos and photographs. I also accept his evidence the VPD created a system and a procedure to process thevarious pieces of information that came to their attention during the investigation. [56] Mr. Hill’s photograph was placed on the VPD website on January 31, 2012, which coincidentally was the same date thewebsite was re-launched.

Prior to that date the VPD had not received any information on Mr. Hill. The VPD started to receiveinformation on Mr. Hill on February 21, 2012, and shortly thereafter on February 27, 2012, Constable Kane was assigned to investigateMr. Hill. As noted, a report prepared by Constable Kane indicates that the file on Mr. Hill would be concluded with a no chargerecommendation. However, Detective Constable Nash’s evidence provided a different perspective about the status of Mr.

Hill’s file. [57] Detective Constable Nash testified that on June 21, 2012, a little over a week after Constable Kane apparently closed to the file,he communicated with Constable Kane, via email, about two searches that were in the unfinished search folder. One of them pertained toMr. Hill. Detective Constable Nash asked Constable Kane what he would like to have done. Constable Kane told him the searchregarding Mr. Hill should be kept in the unfinished folder but the other search was completed and was sent to Crown counsel.

ConstableKane did not tell Detective Constable Nash that he had decided not to further pursue the investigation of Mr. Hill. In fact, DetectiveConstable Nash’s evidence was that in January 2013 officers at IRIT had the opportunity to review unfinished files and searches leftbehind by other officers who had returned to regular assignments. One of the files that showed as being unfinished was Mr.

Hill’s file.Consequently, Detective Constable Latrace was assigned to follow up on the file. [58] Detective Constable Nash said the practice at IRIT was that as soon as the police were satisfied about the identification of aparticular target his/her photographs would be removed from the VPD website. Additionally, it was procedure at IRIT that in caseswhere no charge was contemplated the file was to be discussed with the lead investigator, Inspector Rankin. In Mr. Hill’s case DetectiveConstable Nash did not know if Constable Kane had discussions with anyone else about closing the file.

The correct procedure wouldhave been to speak to Inspector Rankin. The inference I draw from the evidence is that since Mr. Hill’s name was still in the unfinishedfile/search folder, Constable Kane did not take appropriate steps to close the file and he did not discuss it with Inspector Rankin. [59] The first question I will address is whether the delay in this case compromised the fairness of the trial and in particular Mr.

Hill’s right to make full answer and defence. Mr. Hill argues the delay in this case impaired his ability to make full answer and defence because it impaired his memory. During the trial there were a number of occasions when Mr. Hill said he did not remember and when he appeared to be struggling to recollect events of the evening of June 15, 2011. However, having considered the evidence as a whole, I am satisfied Mr. Hill did not suffer prejudice. I do not doubt that the passage of time has, to some extent, affected his ability to remember. However, having observed Mr.

Hill at trial, I conclude he exaggerated, perhaps inadvertently, the effect of the passage of time on his memory. Moreover, this is not a case where evidence has been lost or witnesses have become unavailable. In fact, in this case there was abundant real evidence; namely, video evidence regarding the substantive charges that was available to the defence. [ 60 ] During his testimony Mr. Hill demonstrated he had a good recollection of many of the central events that occurred on the night of the riot.

What he did remember belies his assertion that the passage of time impaired his memory to the point that he could not make full answer and defence. Furthermore, Mr. Hill testified he was told by approximately 10 people that his photograph was on the VPD website. Additionally, approximately 1 to 1 ½ years after the riot, a friend of his showed him a photograph (I understood his evidence in this regard to be that this was his photograph from the VPD website). The significance of this evidence is that Mr.

Hill knew well before he was initially contacted by Detective Constable Latrace that he was a person of interest to the police and that he may have to account for his conduct on the night of the riot. In

summary, I find that the delay complained of did not result in an abuse of process which affected fairness of the trial. Mr. Hill sustained no prejudice and his ability to make full answer and defence was not impaired. [ 61 ] The second question I will address is whether the conduct of the police was so unfair that it undermines fundamental notions of justice and risks undermining the integrity of the judicial process. In this regard Mr. Hill argues that the fact photographs of him remained on the VPD website from June 12, 2012, to February 4, 2013, constituted a form of public shaming.

He argues that by June 12, 2012, he had already been identified. Accordingly, leaving his photographs on the website undermines the integrity of the judicial process. [ 62 ] The question I must consider on this point is whether the state (as represented by the police) has engaged in conduct that is so offensive to societal notions of fair play and decency that proceeding with the trial, in light of that conduct, would be harmful to the integrity of the justice system. First, there is no evidence whatsoever to suggest the purpose of having pictures of riot suspects in general or Mr.

Hill in particular on the VPD website was to publicly shame them. Detective Constable Nash testified about the enormity of the investigative tasks the police faced not only during the riot but immediately following the riot and for months and months thereafter. Given the nature of the riot, the entire downtown core of Vancouver was a crime scene.

Furthermore, police were investigating up to 2000 suspects for alleged criminal conduct including, but not limited to: break and enter, theft, mischief, assaults, arson etc. [ 63 ] One of the investigative tools the police used was a website on which they posted photographs of persons suspected of having participated in the riot and other related offences. Detective Constable Nash’s evidence, which I accept, was that the primary purpose of the website was to identify the individuals involved in the riot.

Initially, the website could be used both by citizens who wanted to provide information about the riot and also by suspects who wanted information about how to turn themselves in. Once the VPD website was up and running, photographs of suspects were posted on the website and new photographs were added almost every week.

The police vetted the images they put on the website to make sure the persons depicted in the photographs, and later videos, had not already turned themselves in and to ensure they were not clearly youths or someone under investigation whose identity had already been established. [ 64 ] I am satisfied that the police’s use of a website designed to identify people who had participated in the riot or in related offences was appropriate in the circumstances and did not constitute abusive conduct. Moreover, the fact photographs of Mr.

Hill were left on the website for a number of months after Constable Kane finished his investigation did not constitute a public shaming and was not an abuse of process. It is clear Constable Kane did not follow the IRIT procedure of discussing his recommendation not to proceed with charges with Inspector Rankin. The Crown did not call Constable Kane and therefore it would be inappropriate to speculate why this occurred. However, Detective Constable Nash’s evidence established that Mr.

Hill’s file was still an open file in January 2013 when Detective Constable Nash identified seven open investigation files that needed to be completed. [ 65 ] Detective Constable Nash testified that once the identity of a suspect was verified and action was taken on a particular investigation, either by referring the matter to Crown counsel or by not recommending charges, the photograph of the suspect was removed from the VPD website. The inference I draw from the evidence that Mr. Hill’s photographs remained on the VPD website after June 12, 2012, is that the file had not formally been closed by IRIT.

This was due to what appears to be an error by Constable Kane and not to any deliberate attempt by the police to embarrass or shame Mr. Hill. [ 66 ] In the circumstances and in light of the legal principles reviewed previously in this decision, this is not one of the clearest of cases where a stay is justified. As noted in R. v. J.W . society has a genuine interest in the prosecution of serious offences. There is no doubt the riot that occurred after the final Stanley Cup game on June 15, 2011, constitutes a serious offence.

The fact the police revisited what they understood to be an open file and decided to lay charges, irrespective of the first investigating officer’s conclusion, is not in and of itself an affront to the community’s sense of fair play. An abuse of process under the residual category has not been made out. Accordingly, I find Mr. Hill has not met the prerequisites for a judicial stay because he has not established an abuse of process either on the main category or on the residual category discussed in R. v. Babos and other previous decisions cited therein.

THE SUBSTANTIVE OFFENCES [ 67 ] The Crown called two witnesses regarding the substantive offences but they also relied, in part, on some of the evidence of Detective Constable Nash who testified about his experiences on the night of the riot. The other witnesses called by the Crown were Mr. Lacerte, a friend of Mr. Hill who was with him on the evening of the riot, and Staff Sgt. Patterson who was a tactical advisor for the VPD on June 15, 2011. The defence called Mr. Hill. The evidence of Mr. Hill and Mr. Lacerte [ 68 ] Mr. Lacerte and Mr. Hill met when both of them were on probation and taking counselling.

They became friends and a few

months before June 15, 2011, they rented an apartment together in North Burnaby. Although Mr. Lacerte shared the apartment with Mr. Hill, he spent a great deal of time at his parents’ house because his son would visit him there. According to Mr. Hill, Mr. Lacerte primarily came to the apartment on Fridays and Saturdays and then mainly to party. [ 69 ] On June 15, 2011, Mr. Hill and Mr. Lacerte watched the hockey game at their apartment and while doing so they drank alcohol. According to Mr. Lacerte, they shared an eight pack of beer, that is, four beers each. However, according to Mr.

Hill, they shared a 15 pack of beer. Mr. Lacerte specifically denied this. Mr. Hill said they were both “buzzed”, but Mr. Lacerte more than he. They decided to go downtown. Mr. Lacerte said it was to find a party and meet up with his older brother and some of his friends who were already downtown. They took a bus downtown and eventually met up with Mr. Lacerte’s brother and his friends. [ 70 ] According to Mr. Lacerte, he and Mr. Hill met his brother and his brother’s male friend and a female friend in an area near the Bay. He could not recall the exact cross street but it was near a White Spot. Mr.

Lacerte said, when he got there, there were a lot of people about, cars were on fire and people were smashing windows on cars and in the Bay building. Mr. Hill’s recollection is somewhat different from that of Mr. Lacerte. He said once he and Mr. Lacerte arrived downtown they went to the live site. They also went to a cold beer and wine store nearby and bought a mickey of “Fireball” which is 35% alcohol. They then went back to where Mr. Lacerte’s friends were and started drinking. Mr. Hill’s recollection is that they watched the end of the hockey game from an area on Homer Street.

His recollection is there were six of them: two buddies of Mr. Lacerte, their two girlfriends, Mr. Hill and Mr. Lacerte. Mr. Hill said he and Mr. Lacerte finished the mickey of liquor together. However, Mr. Lacerte did not remember having anything to drink while he was downtown. He said his brother and his brother’s friend were drinking and he might have taken a couple of drinks from whatever his brother was drinking. [ 71 ] Mr. Hill said when the game ended he, Mr. Lacerte and Mr. Lacerte’s friends were chatting and mingling among themselves.

When “chaos happened” they were in awe and they just went with the crowd. It was a chaotic scene and Mr. Hill was just stunned. Mr. Hill said he walked slowly with the crowd up W. Georgia Street. They eventually got to Seymour Street. He did not know how long it took to do that. At that location there were more police officers, police officers on horses and vans with police officers. Mr. Hill said the police were moving up and down Seymour Street trying to scare people. Mr. Hill said “they” (presumably he, Mr. Lacerte and his friends) stopped in the middle of the intersection, that is at Seymour and W.

Georgia Street. They were there about 30 to 40 minutes and it was chaos. Police officers on horseback were coming through the crowd. Mr. Hill said he and Mr. Lacerte sort of stayed together with their group. However, things became hectic and he lost the group. Mr. Hill tried to go to Granville Street to get out and he ran into them. He saw Mr. Lacerte coming out of the Bay, but then he lost him again. Later, Mr. Hill ran into the group again and asked them where Mr. Lacerte had gone. They told him Mr. Lacerte had gone to London Drugs so he went there to try to get Mr. Lacerte out. [ 72 ] As noted, Mr.

Lacerte’s recollection was that he arrived at an area near the Bay. While there he saw people running into and out of the Bay. Later he saw people with things in their hands as they were leaving the Bay. He could not say what the things were but he believed it was whatever people could get their hands on from inside the store. Mr. Lacerte watched that activity for about an hour. He was shown a video clip taken in the vicinity of the White Spot. He acknowledged this was the intersection he was talking about. He agreed that the video depicted people running around and a car that was burning.

This represented the kinds of things he saw that evening. [ 73 ] Mr. Lacerte said he decided to participate in the riot because everyone was doing so. He ran into one of the stores where a window had been smashed. Workers were inside the store with fire extinguishers and he ran out. He did not go into that store again. He then entered another store through a broken window. The window was already smashed and he did not participate in smashing the window. The store was across the street from London Drugs at the corner of Granville and W. Georgia Street. He took some “girl stuff”; namely, lip gloss and makeup. Mr.

Lacerte said he was wearing a white undershirt wrapped around his neck and half of his head. He was wearing the undershirt in order to hide his face. Mr. Lacerte testified that on each occasion that he came out of the stores his friends, including Mr. Hill, were somewhere down the street. They did not say anything to him but the girlfriend of his brother’s friend asked him what he had gotten. [ 74 ] Mr. Lacerte said after the two entries into the stores he went to London Drugs. He was following the crowd that was running towards London Drugs.

Once he arrived at London Drugs, the crowd smashed the window and got in to the gate. He himself tried to push the steel gate that separated the crowd from the inside of the London Drugs. Other people from the crowd were pushing as well. He was doing this in order to get inside London Drugs. Once the gate was down, he got inside on the main level of London Drugs. He did not go to the lower level. He grabbed some perfume and cologne and then left. [ 75 ] Mr. Lacerte said the group of friends he was with was in the W. Georgia Street area. He could not remember if Mr. Hill was in that group.

He gave the stuff he took from London Drugs to his friend’s girlfriend. Mr. Lacerte then went into London Drugs again. He could not recall seeing Mr. Hill before he went into London Drugs that second time. Mr. Lacerte said he told his friends he was going back in. The second time he went into London Drugs he looked around and grabbed more stuff on the main level, including candy and cologne. Mr. Lacerte said he ran into the London Drugs by himself. [ 76 ] According to Mr. Hill, he went to London Drugs and went through the front door. He was behind Mr. Lacerte. He saw Mr.

Lacerte go down the aisle and he called out to him: “Marco let’s get out of here”. Mr. Lacerte turned to the right. Mr. Hill said he had nowhere to turn so he went straight and tried to find Mr. Lacerte. Mr. Hill said he did not take anything. Mr. Hill said the item depicted in his right hand in some of the video images was his cell phone. [ 77 ] According to Mr. Lacerte, the second time he went into London Drugs he saw Mr. Hill walking in the main level of London Drugs. He could not recall if Mr. Hill went up to him but Mr. Hill did not try to stop Mr. Lacerte from entering London Drugs. Further, Mr.

Hill did not try to stop Mr. Lacerte while he was inside London Drugs. Mr. Lacerte was shown a video clip taken outside of London Drugs. He identified what was depicted on that video as the scene he had witnessed. He identified himself on the video. He also identified Mr. Hill in one part of the video. Mr. Hill was behind Mr. Lacerte. Mr. Lacerte said both he and Mr. Hill walked into London Drugs. Mr. Lacerte identified himself inside the London Drugs. He also identified Mr. Hill in that portion of the video. Mr. Lacerte also identified himself and Mr. Hill in a series of London Drugs still photographs .

[ 78 ] Mr. Lacerte said he left London Drugs after the second entry and returned to his group. They were in the same area they had been previously. He could not recall if Mr. Hill was there. However, later he saw Mr. Hill. He saw a Canucks water bottle in Mr. Hill’s hand. Mr. Lacerte recalled saying to Mr. Hill something to the effect -- “Is that all you grabbed or is that what you grabbed”. He did not recall how Mr. Hill responded. Mr. Hill was asked about Mr. Lacerte’s assertion that he had a Canucks collectible water bottle. Mr. Hill said he didn’t know what Mr. Lacerte was talking about.

He did not have a water bottle in the house and he never stole a water bottle. [ 79 ] Mr. Hill said Mr. Lacerte was a good friend and when he caught up with Mr. Lacerte he tried to stop him from going into the London Drugs. After Mr. Hill left London Drugs, he did not see Mr. Lacerte or his friends. Mr. Hill just got out of there, went to Granville Street and caught a bus home. [ 80 ] Mr. Lacerte said during the time he was downtown he moved around. There were lots of people there but he did not really have trouble getting around. He also said when he saw Mr. Hill during the course of the riot Mr.

Hill did not appear to be scared. [ 81 ] Mr. Lacerte said at some point after the riot he saw a photograph of Mr. Hill on a poster distributed by the police. He called Mr. Hill and told him his photograph was on the police poster. Some Evidence Elicited in Mr. Lacerte’s Cross-examination [ 82 ] The following is a

summary of some evidence given during cross-examination: • He denied he had been diagnosed with FASD and that he had told Mr. Hill that. • He agreed he was not paying attention to what Mr. Hill was doing that evening. In fact, until the Crown showed him the video clips he had not known Mr. Hill was there. • He did not know if Mr. Hill saw him when he was inside London Drugs. • He did not hear anyone call his name inside London Drugs but he agreed it was pretty loud and it would have been hard to hear. • He had not recalled seeing Mr. Hill inside the London Drugs.

However, once he saw the video he had to say what came from the video. • He said the item Mr. Hill was holding in photographs taken at London Drugs was a water bottle. He noted he could see the price on the bottom. • He also saw the water bottle at the apartment. He did not recall Mr. Hill having the bottle before that date. He did not see the water bottle until that night. • He agreed that when he was interviewed in relation to riot related charges against him, he told the police officer he did not know whether Mr. Hill knew he had gone into the Bay or whether Mr.

Hill knew he had gone into the makeup store. • He agreed he did not tell the officer at the time that he had gone into a second store. However, he said that was because the officer had not asked him about that but had asked about London Drugs. • He agreed he told the officer he was separated from Mr. Hill before he went into London Drugs. • He did not recall the date when he first saw the police poster. • He agreed that on the evening of the riot he had “done cocaine” before going downtown. Later, when he returned to the apartment, both he and Mr. Hill snorted cocaine. Mr.

Lacerte denied he brought the cocaine home after the riot. He also denied he bought the cocaine that night by selling stuff he had stolen during the riot. Some Evidence Elicited in Mr. Hill’s Cross-examination [ 83 ] The following is a

summary of some evidence given during cross-examination: The scene downtown in general • Mr. Hill acknowledged he was in the downtown core for approximately three hours; he did not know the time but agreed it could have been between 7:45 pm and 10:22 pm. • He agreed that after the game, as he was moving up W. Georgia Street, he witnessed a chaotic situation. He saw people smashing windows, he saw a flipped car, and he saw people at Seymour and W. Georgia Street running into stores.

However, when he had been asked earlier whether he knew there was a riot, he had responded he did not know what a riot was. • It was suggested to Mr. Hill that as he came up W. Georgia Street there was no problem moving about. He did not agree. He said there were people throwing things, police on horseback, police in vans, and police throwing tear gas. There was nowhere to go and that is why the crowd stopped at Seymour and W. Georgia Street. • He agreed he was at the corner of Homer and W. Georgia Street for a period of time, but he could not remember how long.

He said the crowd and the craziness of what was going on prevented him from moving away. • Mr. Hill agreed that a video clip he was shown of the corner of Homer and W. Georgia Street was an accurate depiction. He

disagreed however that he chose to stay. He said they could not leave because of the crowd; therefore they mingled around. He did not make an effort to go down Homer Street to Robson Street but that was because he could not go anywhere. • Mr. Hill was shown a helicopter view of the same area taken at approximately 8:40 pm. He agreed there were a lot fewer people in the intersection at that time. He also agreed that what was depicted showed the crowd was not too dense. However, he disagreed there were places he could have gone through in order to leave the area if he wanted to. • It was suggested to Mr.

Hill that he was aware police officers had come to the intersection of Homer and W. Georgia Street. The reason they were doing so was to move the crowd and stop the rioting. He said he did not know. • He was not watching what the police were doing. He and his group were part of the crowd and they were moving with the crowd up W. Georgia Street. He maintained they could not go any other way. • It was suggested to Mr. Hill that when he experienced the use of tear gas he must have known, before he arrived at W. Georgia and Seymour Street, that he should leave because of the riot.

He said he knew something along those lines but he could not go anywhere. • Mr. Hill was shown a video clip taken at the intersection of Seymour and W. Georgia Street at approximately 10:00 pm. He agreed that a line of police officers was depicted across W. Georgia Street. It was put to him he ought to have known by then that he was supposed to leave the downtown area. He said he did not know that. He was caught in the mix and got trapped. • He was shown another video clip from that intersection. He agreed that clip depicted people walking around in the intersection. Some of them were playing up to the camera.

He agreed there was a party-like atmosphere. He agreed people were not stopped by police at the intersection either on W. Georgia or Seymour Street. People in fact were going back and forth. He agreed the only police there were the ones that had moved the crowd up W. Georgia Street. • It was put to Mr. Hill that he made the decision to walk up W. Georgia Street and there was nothing compelling him to do so. He said the police were behind him. He did not want to walk forward but he was in the midst of a crowd and he was trying to find Mr. Lacerte. • Mr. Hill agreed that when he was in the area of W.

Georgia Street near the Bay he saw people coming out of the Bay with merchandise. Some people were coming and going and had something hiding their faces. However, he noted they may have covered their face because of the smoke. He agreed that some people covered their face to go into the store but he did not think about what they were doing. The scene at London Drugs • Mr. Hill said when he was in the mid-block of W. Georgia Street near Seymour Street he saw Mr. Lacerte come out of the Bay side of the street going in the direction of London Drugs. At that time Mr. Lace

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