R. v. Singh Date:, 2014 BCPC 139

Citation: R. v. Singh Date: 20140609 2014 BCPC 0139 File No: 223682-1-V Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BIKRAMJEET SINGH EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. BAHEN Counsel for the Crown: T. Laker Counsel for the Defendant: E. Gottardi Place of Hearing: Vancouver , B.C. Date of Hearing: June 9, 2014

Date of Judgment: June 9, 2014 [1] THE COURT: These are my reasons for sentence. Introduction [2] Bikramjeet Singh has pled guilty to participating in the riot following the seventh game in the Stanley Cup final series atVancouver on June 15, 2011. At this sentencing hearing, Crown counsel seeks a sentence of 60 days' imprisonment to be served in thecommunity as a conditional sentence order.

The defence asks the court to grant a conditional discharge. [3] The Crown submits the discharge of the accused would be contrary to the public interest and would not adequately address theessential sentencing requirements of proportionality, deterrence, and denunciation in the circumstances of this offence and this offender. [4] In this sentencing hearing, the first issue is whether a sentence of imprisonment served in the community is the appropriateform of sentence to accomplish the purposes of sentencing in a manner that is consistent with the fundamental principles of sentencing. [5] The next issue that may arise if a sentence of imprisonment is not appropriate is whether a conditional discharge is in the bestinterest of the accused and not contrary to the public interest.

The option of a suspended sentence with a term of probation has not beensought or supported by the submissions of Crown or defence. [6] For the reasons that follow, I have decided the appropriate sentence in this case is a conditional discharge including a term ofprobation. Circumstances of the offence [7] The Crown filed as Exhibit 1 at sentencing a document entitled "submissions of fact" containing a

summary description ofevents in downtown Vancouver during the riot. After the riot began at about 7:30 p.m. near the area on West Georgia Street where theCanada Post building is located, the violent and destructive actions of the rioters continued at locations throughout the downtown areafor a period of about five hours.

The damage caused to property and the intense risks of serious physical injuries to countless people,including on-duty police officers, fire department personnel, ambulance service members, and the citizens of Vancouver, have beencomprehensively described in the reasons for judgment of the Honourable Judge Low in R. v. Yates, 2012 BCPC 250 , 2012BCPC 0250 at paragraphs 15 to 16. [8] Crown counsel at Mr.

Singh's sentencing hearing has provided an overview of the events of June 15 in the submissions of factat paragraph 7 as follows: For a period of approximately five hours, civil order and this city's just, peaceful and safe society was overrun by a mob of rioters which,by the sheer force of its numbers, imperiled the lives and safety of not just the rioters themselves, or the thousands of others who watchedand cheered them on, or the emergency responders, but also of the many innocent residents in the area and of the customers andemployees of the hundreds of victimized businesses.

In some instances, for example, at London Drugs, Canada Post, the Bay and aBlenz coffee shop, terrified customers and/or employees of vandalized and looted businesses barricaded themselves in interior offices,upper floors or closets out of fear due to the marauding rioters. [9] Any sentence imposed on the participants in this riot must include an attempt to address the harm done in this offence. Thebusinesses in the downtown area where rioters looted and vandalized property included the Sears store, the Hudson's Bay store, LondonDrugs, and dozens of other smaller businesses.

The financial losses suffered by London Drugs were almost $900,000 in stolen goods anddamaged property within the store.

The costs of the riot for Sears were about $400,000, including stolen goods, damage to the store, andemployee wages for duties in the process of recovering from the damages caused by riot participants. [10] Other local independent businesses may have suffered smaller monetary losses but their costs were a relatively difficult burdenfor many of these businesses whose owners lacked the access to financial resources available to the larger more established enterprises. [11] The events at the London Drugs store included the looting committed by Mr.

Singh who was one of about 300 people whoentered and looted the store during the riot. The events at London Drugs should also be considered within the larger context of the riot,which included the widespread destruction and violence as noted in paragraph 2 above. [12] The Crown's written

summary of the facts relating to the London Drugs store is provided in Exhibit 1, the submissions of fact. The following portion of the

summary begins at paragraph 20 of Exhibit 1: 20. On June 15, 2011, London Drugs was open for business and scheduled to close at 10:00 p.m. There were 31 people working – 21store employees, six loss prevention officers, two private security guards, and during the course of the evening, two additional lossprevention officers were re-assigned to the London Drugs from another store (the "Store Employees"). 21. At approximately 7:40 p.m.

Aman Cheema, the store supervisor ("Cheema"), decided to close the store early after observing anincreasingly hostile crowd in the downtown core and receiving reports of a fire at the Live Site. 22. By approximately 8:00 p.m., the Lower Entrance was closed except to allow existing customers within the store an opportunity toexit. At this time, the Main Entrance was also closed by locking both the Steel Gate and the Glass Doors. 23. Over the next two hours, rioters began to intermittently bang on the glass of the Main Entrance. Cheema directed the StoreEmployees to stay away from this area of the store.

As well, the Store Employees decided to remain within the store for their personal

safety. 24. At approximately 9:50 p.m., Store Employees removed the cash terminal safe boxes bolted beneath each cash register and locked all the safe boxes into the London Drugs’ safe. 25. Rioters outside the store then lit a tree on fire located directly in front of the Main Entrance. Shortly thereafter, the attack on the Main Entrance increased in intensity. The video contained in the DVD marked as an Exhibit in these proceedings depicts the atmosphere in the immediate vicinity of London Drugs at this time . . . 26.

Out of concern for safety, Cheema directed all Store Employees to hide in the security room located on the basement level of the store (the "Security Room"). 27. The Security Room contains components of London Drugs closed-circuit television ("CCTV") system, which are television screens displaying various locations throughout the store and equipment to manually control the CCTV camera angles and zoom. 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. 28.

Shortly after 10:00 p.m., the rioting members of the crowd outside London Drugs were able to break through the Glass Doors, enter into the front foyer area and begin rocking the Steel Gate back and forth to gain access to the store. 29. By approximately 10:14 p.m., members of the crowd completely breached the Main Entrance. A large group of individuals immediately broke into the store, overturning display cases and stealing merchandise.

The entire break-in and looting of London Drugs lasted approximately 25 minutes with an estimated 300 people breaking in and looting the store. [ 13 ] The submissions of fact also include a

summary description of the role of the loss prevention officers responding to the threats created by the riot to the personal safety of themselves and other employees. [ 14 ] I have also considered the victim impact statements of the seven employees found at Tabs 4 to 10 of the Crown book of documents filed as Exhibit 2 at this hearing. The employees provide a description of the emotional trauma they suffered during this riot. The individual employees and their family members suffered lasting harm from the fear created during this riot.

These employees were justifiably frightened as they waited in the store, unable to know if the rioters would discover them inside the basement security room and harm them. [ 15 ] After the riot, the consequences of the violation of the store property and merchandise, as witnessed by the employees in the aftermath and cleanup, created a profoundly disturbing emotional burden for many of the staff members. [ 16 ] The participation of Mr. Singh in the riot has been described in the submissions of fact beginning at paragraph 34 as follows: 34. Bikramjeet Singh ("Singh") participated in the Riot.

One photograph of Singh taken during the Riot is attached under Tab 1 of the Crown Book of Documents. He is an Indo Canadian male, who was 18 years old at the time of the Riot. During the Riot, he was wearing a black turban, a red t-shirt, a red zip-up hoodie sweatshirt, blue jeans, and sneakers. 35. Singh actively participated in the Riot by looting at London Drugs. 36. Earlier in the night, Singh watched the Game at Roger's Arena. 37. After the Game, he met with friends downtown and walked around during the Riot. 38.

At approximately 10:23 p.m., Singh ended up outside of London Drugs while the store was being broken into and looted. 39. At the time, there were many people outside of London Drugs and people were damaging and looting the store . . . 40. Singh broke into London Drugs once . . . 41. Singh entered London Drugs at approximately 10:23:30 p.m.. He ran into the store and took a bag from the self check-out area. He went to a food aisle, and appeared to take something from the ground. He turned into another aisle and bent down, picking something up. He then turned and ran back toward the exit.

Singh exited the store with a full bag in his left hand at 10:24:00 p.m. He was in the store for approximately 30 seconds. 42. Singh stole chocolate bars, bags of chips, and candy from London Drugs, some of which he gave away and also sold later that night. 43. Singh was downtown for at least two hours during the Riot. [ 17 ] The website of the Vancouver Police Department received an image of Singh taken during the riot. This image was posted on the website in January 2012. In March of 2012, an image of Singh was included in a poster prepared by the police with several other individual images included.

This poster was distributed to the public. The police had received tips identifying Singh after these images were distributed. [ 18 ] In August 2012, Singh's lawyer contacted police and arranged for Singh to turn himself in at the police station on Graveley Street. Singh attended at the police station on August 29, 2012, and was arrested. He cooperated with the police by answering questions

during an interview while in custody.

The information from this interview is summarized at paragraph 50 of the submissions of fact as follows: a. the day before the Riot he turned 18; b. his sister had bought him a ticket to the Game, to which he went; c. he didn't have anything to drink that night; d. after the Game, he met up with friends at one of the Starbucks downtown; e. he and his friends walked around and he observed people smashing windows and flipping cars; f. at one of the parking lots on Cambie, he filmed people trying to flip and light cop cars on fire; g. he doesn't recall any cops in sight; h. while walking, he met with one of his friends who told him to go to London Drugs and that it was open; i. something triggered in his mind just to go in, and he just ran in the store; j. he was stupid; k. he grabbed two or three big chocolate bars, two or three bags of chips, and maybe candy; l. he put them all in a plastic bag, and ran out of the store; m. he left downtown by taking the skytrain from the Waterfront station, and he stopped near Science World; n. he later gave the candy and a bag of chips to a homeless man; and then sold the chocolate bars for five bucks to an unknown person at McDonalds on Main Street, near Science World; o. he bought some food from McDonalds with the five bucks, and then his sister picked him up from the restaurant; p. in February 2012, he learned that his picture was on the Poster and he panicked; q. during the interview, when presented with the Poster, he identified his image on the Poster; and r. he also identified himself in the London Drugs surveillance video on the DVD entered as an exhibit in these proceedings. [ 19 ] This

summary of the facts concerning the general circumstances of the riot and Mr. Singh's individual participation in these events are factors in sentencing that must be considered in determining an appropriate sentence. The assessment of the degree of moral blameworthiness for an individual participating in the riot cannot be considered in isolation.

Each riot participant shares a degree of further responsibility beyond the scope of their own physical acts as the entire riot must be viewed as part of the context for the sentencing of the individuals who chose to join the riot and contributed to the harm it caused the community. [ 20 ] This aspect of sentencing for offences involving participation in a riot has been explained by Madam Justice Garson for the British Columbia Court of Appeal at paragraph 27 of the court's recent decision in R. v. Peepre , 2013 BCCA 115 as follows: Special considerations apply to sentences imposed for participation in a riot.

Sentencing an offender for participation in criminal acts that involve widespread public disorder requires a court to look not only at the offender's individual conduct, but also the broader context in which the individual participated. A rioter is culpable for not only his own conduct: he bears, in a general way, a share of responsibility for the more widespread acts of lawlessness in which he participated . . . Citizens of Vancouver and members of the larger community present at the scene of the Stanley Cup riot were terrorized by the acts of violence to persons and property that occurred.

That violence, and the public's consequential feeling that law and order had been cast aside, is significant in our consideration of the fitness of Mr. Peepre's sentence. Participation in a riot is a deliberate criminal act that has grave consequences for the safety and security of our community. The corollary of that fact is that those who participate must expect to be punished severely. [ 21 ] At paragraphs 28 through 30, Madam Justice Garson described the task of the appellate court in reviewing a sentence to determine whether the sentence imposed by the trial court was demonstrably unfit.

She made reference to general deterrence and denunciation as particularly relevant considerations in sentencing for this offence while also noting that "a sentence must take into account the individual circumstances of the offender." [ 22 ] She listed a number of aggravating factors that would generally require a term of imprisonment even for first offenders, including incitement of others in the riot, assault, arson, wearing a mask, or multiple unlawful acts at multiple locations during the riot.

The presence of an aggravating factor would generally be expected to lead to a longer prison term instead of a conditional sentence order, but Madam Justice Garson also noted these aggravating factors were not determinative as the imposition of a fit sentence by the trial court is a process that must be "subject always to an individual's personal circumstances." Circumstances of the offender

[ 23 ] Mr. Singh is now 20 years old. On the date of this offence, he was attending the Stanley Cup final game using a ticket given to him by his sister as a gift for his eighteenth birthday the day before the riot. He was a grade 12 student at Vancouver Technical Secondary School, and he graduated in 2011. He has no criminal record as a youth. This riot offence is his only adult criminal offence. [ 24 ] Mr. Singh has the benefit of a close and supportive family. His parents arrived in Canada as immigrants from India in the late 1980s. He is the youngest of three siblings.

One of his sisters is a lawyer in Vancouver, and his other sister is a medical student in the United Kingdom. His father is a priest at a Sikh temple in Vancouver. His mother works in the food-packaging industry. He lives in his parents' home and is enrolled at Capilano University in North Vancouver. He hopes to obtain a business degree, and his educational goal may include a transfer to another university to complete his postsecondary education. His parents are paying his tuition expenses. [ 25 ] While he is enrolled as a student at Capilano University, he has taken part-time employment.

He has recently been working at two part-time positions. He works at a gas station and has another job at a warehouse. He is currently earning about $400 per month from his part-time employment. His work history has included several positions in telemarketing, sales, and food service employment. [ 26 ] There are also two volunteer community activities where Mr. Singh contributes his time. He is a volunteer mentor for the PLEA Community Services KidStart program where he has been assisting for the past 18 months.

He has been regularly working with one youth as a mentor since October 2013 and spends about 13 to 24 hours each month as a volunteer mentor in this program. The defence book of materials filed at this sentencing hearing includes a letter at Tab 4 from the father of the child involved in the mentoring program with Mr. Singh. The child's father describes the type of recreational activities provided in the program and concludes by saying: My son has enjoyed these activities and looks forward to being with Bikram every week.

Bikram is a very good influence on my son and we look forward to continue seeing him being such a help to our family. [ 27 ] The other volunteer activity by Mr. Singh involves him in work at the Carnegie Centre located in the Downtown Eastside of Vancouver. He works in the centre's computer lab as a monitor and in the weight-training room and the learning centre as a tutor. The program coordinator at the Carnegie Centre has provided a letter included in the defence book of materials at Tab 3. Since October of 2013, Mr. Singh has provided over 100 hours of volunteer work at the Carnegie Centre.

The coordinator has described Mr. Singh's contribution to the Carnegie Centre as follows: Bikram is one of our exceptional volunteers, working in our very busy Community Computer lab, as a monitor, as well as our Community Weight Room. His thoughtfulness, and personable attitude has made him very pleasant to work with . . . Bikram brings a commitment to the Carnegie kitchen that is really important in the Downtown Eastside. He is definitely one of the people at Carnegie that make the centre the success that it is. [ 28 ] There are seven other letters filed by the defence, including letters from Mr.

Singh's sisters and close friends who have known him for many years. The authors of all these letters know that Mr. Singh has pled guilty to the offence and express their support and commendation of him. His personal behaviour before and after the offence indicates he is a peaceful and socially responsible young man. In addition, it is submitted by counsel on his behalf that Mr.

Singh has received stern parental disapproval following the disclosure of his role in this offence. [ 29 ] His attendance at the family's place of religious observation is a regular feature of his life, but this has been disrupted by the disapproval of his parents and others in the same community who share the perspective that his offence has brought shame and dishonour to his family and his religious community. [ 30 ] He has completed 210 volunteer hours up to the date of the sentencing hearing, and he has expressed through counsel his willingness to contribute further to the community. [ 31 ] The defence has filed written submissions on sentence as Exhibit 5 at this hearing.

At Tab 2, there is a psychological assessment report from Dr. Robert Ley dated April 29, 2014. In this report at page 5, Dr. Ley notes that Mr. Singh's account of the riot events is consistent with the file information provided by counsel. Dr. Ley summarized the account of the offence provided to him when he interviewed Mr. Singh as follows: When asked why he engaged in the index offence, Mr.

Singh stated that he thought "it was the crowd or something," that it was just "in the moment" and that there was an "adrenalin rush." He stated his belief that he had no intention to steal goods when he entered the store (e.g., "I guess I went in to check it out. . . I did not have the thought to rob"). Mr. Singh recalled the experience of the index offence as being "blurring," which might account for the rather aimless or haphazard selection of the chips and chocolate bars, which were products that he did not favour or even like. In short, there is nil to negligible indication that Mr.

Singh entered the store with any clear and conscious intention to find and take specific or more valuable products such as electronic goods or appliances. Mr. Singh recalled thinking at the time of the index offence that he "didn't want to be left out" and that "everyone was doing it, everybody was there." He speculated that "maybe (he) wanted to be part of things." Mr. Singh reported that the friends he met up with were "not brought up to be that proper." He recalled his friends encouraging him to participate in the entry to the London Drugs store and that they "hyped (him) up." Mr.

Singh considered it significant that he assumed his friends entered the store first, and from a psychological standpoint Mr. Singh's assumption in this regard was likely influential on his misconduct and impulsive decision to enter the store and steal goods from it. [ 32 ] Dr. Ley concludes in his assessment report at pages 18 and 19 by describing Mr. Singh as a mature and responsible young man

who does not excuse his own conduct but "hopes to overcome this mistake so that he can continue to pursue his life goals." There is a "negligible risk for engaging in similar antisocial criminal behaviour in the future" in Dr. Ley's view. [ 33 ] The presence of Mr. Singh's name and photos from the riot available by Google search of the Internet have also had a profound effect on his own awareness of the long-term consequences of his actions.

The procedures on arrest after he turned himself in to police and his remorse arising from the shame and stigma caused for his father and other family members in the community by his criminal actions are important contributing factors in his sense of guilt and remorse, according to Dr. Ley's assessment. Analysis [ 34 ] The imposition of a criminal record for Mr. Singh will involve collateral consequences. These may include obstacles to further volunteer work as some community organizations could be required to exclude persons previously convicted of a criminal offence.

Collateral consequences of a sentence are a factor that can be considered in assessing an appropriate individual sentence.

However, the influence of collateral consequences should not become a rationale for imposing a sentence that is unfit. [ 35 ] In a recent judgment, the Supreme Court of Canada referred to the principles of sentencing, including denunciation, general and specific deterrence, separation of offenders from society if need be, rehabilitation, reparations to the victims for harm done to them, promotion of a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community. [ 36 ] The court considered the relationship between these sentencing principles and the collateral consequences of an individual sentence at paragraph 11 of the decision in R. v.

Pham , 2013 SCC 15 , as follows: [11] In light of these principles, the collateral consequences of a sentence are any consequences for the impact of the sentence on the particular offender. They may be taken into account in sentencing as personal circumstances of the offender. However, they are not, strictly speaking, aggravating or mitigating factors, since such factors are by definition related only to the gravity of the offence or to the degree of responsibility of the offender ( s. 718.2 (

a) of the Criminal Code ) . . .

Thus, when two possible sentences are both appropriate as regards the gravity of the offence and the responsibility of the offenders, the most suitable one may be the one that better contributes to the offender's rehabilitation. [ 37 ] In the same decision at paragraphs 13 and 14, the Supreme Court referred to the potential consequences related to immigration since Pham was not a Canadian citizen but emphasized the individual assessment of collateral consequences in sentencing as follows: [13] . . . collateral consequences related to immigration may be relevant in tailoring the sentence, but their significance depends on and has to be determined in accordance with the facts of the particular case. [14] The general rule continues to be that a sentence must be fit having regard to the particular crime and the particular offender . . . [ 38 ] The decision in Pham involves the differing immigration consequences for an offender who receives a sentence of two years or more as compared to the consequences for an offender sentenced to a term of two years less one day.

But in Mr. Singh's case, the difference in sentences is more pronounced as the Crown seeks a jail sentence of two months served as a conditional sentence order; the defence seeks a conditional discharge with a probation order.

The issue in this sentencing is whether the gravity of the offence and the degree of responsibility of the offender requires the imposition of a jail term served in the community and a criminal conviction or if the principles and purposes of sentencing can be accomplished by imposing a conditional discharge. [ 39 ] The application of the Pham decision has recently occurred in a sentence appeal in British Columbia in R. v.

Dennis , 2013 BCCA 153 at paragraphs 31 to 35 , where the court found a conditional discharge was a fit sentence proportionate to the gravity of the offence and the responsibility of the offender. Dennis was sentenced for welfare fraud, perjury, two counts of false pretenses, and a fraud by falsifying a document. [ 40 ] As a high school student who turned 18 the day before this offence, the young age of Mr. Singh is an important factor in assessing his degree of responsibility.

The defence has referred to the distinction between criminal records and the release of information by police agencies for youth and for adults. Adults bear greater responsibility for their actions relative to the blameworthiness of young offenders.

In some cases, due to the statutory division between 17-year-old offenders and 18-year-olds, sentencing may result in harsher consequences for offenders who are similar in age and maturity at the time of the offence. [ 41 ] The defence has filed and referred to the report of the Information and Privacy Commissioner of British Columbia dated April 15, 2014, cited as 2014 BCIPC No. 14, to illustrate the distinction between criminal record disclosure for adults and youth offenders. [ 42 ] The need to achieve parity in sentencing has also been referred to by Crown and defence at this hearing.

The cases where conditional discharges or suspended sentences have been ordered include R. v. Cacnio , 2012 BCPC 314 ; R. v. Lennox , 21 June 2013, Vancouver Court File No. 223520-1-V; R. v. Laboissonniere , 2013 BCPC 182 ; R. v. McCusker , 2014 BCPC 26 ; and R. v. Johal , 2014 BCPC 89 . [ 43 ] The decision in Johal was given by the Honourable Judge Rideout on May 16, 2014. This was about two weeks after counsel in the sentencing hearing for Mr. Singh had completed their submissions on sentencing. Counsel for Mr.

Singh has provided further written submissions to the court addressing some aspects of the decision in Johal . These written submissions were received on May 27 and have been considered in assessing the appropriate sentence for Mr. Singh. [ 44 ] I also received Crown counsel's written submissions in response to the Johal decision this morning prior to giving judgment in this case.

[ 45 ] In Johal , the court dealt with a youthful offender who had entered London Drugs twice during the riot. On the second entry, he had taken phones valued at about $1,500 and retained these items for a period of time after the riot. The Crown sought a jail term for Johal of three to six months served as a conditional sentence order in the community.

The defence sought a conditional discharge and emphasized the post-offence educational accomplishments of the accused, his plans to enter law school, as well as the strong supportive information from friends and family members. [ 46 ] After reviewing the circumstances and the previous decisions granting conditional discharges, the court imposed a suspended sentence with probation for a period of two months.

At paragraphs 64 to 73, the court provided the following comments on the cases where a conditional discharge has been granted for riot offenders: [64] I find that in Laboissonniere , supra , Lennox , supra , and McCuster , supra , that the public interest component of s. 730(1) of the Criminal Code was addressed by the balancing of two elements. First, that each of the accused were able to establish exceptional or unique personal circumstances. Second, that the level of responsibility for participation in the riot by each of the accused was minor.

Of these two elements, it is my opinion that the second element should be given greater weight in determining whether or not a Conditional Discharge will be contrary to the public interest in riot sentence hearings. [65] In this case, the accused entered London Drugs on two occasions. On both occasions, he stole property. Though the taking of a candy bar could be described as minor, the stealing of the Smart Phones with a value in the area of $1,500.00 could not be considered minor. [66] The accused was in London Drugs on the second occasion for approximately one minute.

During that time, he travelled through the upper store, down the escalator and into the electronics

section of the store. [67] While the accused submitted that he had no intention in taking anything on the second occasion that he entered London Drugs, that would appear to be inconsistent with his purposeful and uninterrupted travel through the store to the electronics department as depicted in the security camera footage. [68] Activities of looters who entered London Drugs were captured on the security cameras and the footage was readily viewed by the employees who were locked in the security room in the basement.

The 911 calls that were made from the security room by the store supervisor clearly established that the activities of the looters travelling through the store were alarming to those in the security room. [69] Without question the personal circumstances of the accused are exceptional. The accused has taken great strides to promote his own personal rehabilitation. His future prospects appear positive. He no longer consumes alcohol and the risk of reoffending is low.

He enjoys strong support from family and friends. [70] I find that in nearly all respects the accused would meet the criteria that would justify the imposition of a Conditional Discharge. However, there is one significant element that militates against the imposition of a Conditional Discharge and that turns on the accused's level of responsibility. [71] I do not find the actions of the accused on entering London Drugs on the second occasion to be impulsive or actions that would be described as spur of the moment.

He was in the store for approximately one minute and stole property of significant value. [72] The accused did not abandon the Smart Phones. He gave one Smart Phone to a cousin and one Smart Phone to a friend. He kept a Smart Phone for personal use until September 2011, when he had a change of heart and turned himself, and eventually the Smart Phones, in to the police. Approximately three months went by before he reached this decision. [73] I am satisfied the accused has established that a discharge would clearly be in his interest.

However, I am not satisfied that a discharge would be in the public interest in light of the accused's elevated level of responsibility. [ 47 ] I find the decisions in Johal , Lennox , Cacnio , McCusker , and Laboissonniere are useful comparator cases in determining the application of the principle of parity in this sentencing hearing. [ 48 ] There are also cases dealing with riot offenders where the court has declined to order a conditional discharge or suspended sentence. These decisions include R. v. Pateman , 2012 BCPC 455 ; R. v. MacMillan , 2013 BCPC 7 ; R. v.

Eiers , 4 February 2013, Vancouver Court File No. 223568-1-V; R. v. Yee , 22 March 2013, Vancouver Court File No. 223524-2-VC; R. v. Shafqat , 26 July 2013, Vancouver Court File No. 223594-1-V; R. v. Beirnes , 16 October 2013, Vancouver Court File No. 223659-1-V; R. v. Ha , 9 December 2013, Vancouver Court File No. 223551-1-V; and R. v. Gartland , 2013 BCPC 374 . [ 49 ] In Pateman , the offender was 18 and had a prior youth record for assault. He went to the downtown core after the game when the riot had begun. His brief looting offence was accompanied by intoxication.

His post-offence conduct did not include any negative features but did not reflect the level of volunteer service hours of Mr. Singh. [ 50 ] In MacMillan , the offender was about 26 years old and took an initiating role in smashing a window of a Starbucks store before becoming involved in a confrontation with persons who tried to stop his offence. He had a troubled upbringing, mental health problems, substance abuse, and was not able to be involved in any post-offence rehabilitative or voluntary activities. His age, maturity, and level of participation are significant differences when compared to Mr.

Singh. [ 51 ] In Eiers , the youth and background of the offender are similar to Mr. Singh, but the actions of Eiers inside the London Drugs store are more extensive: dumping items off shelves and travelling to the lower level of the store after entering at street level. These were significant factors noted by the court at paragraph 28 of the reasons for judgment in Eiers . In addition, Eiers did not turn himself in to police and there was not any post-offence volunteer or community work.

[52] In Yee, the offender entered the Sears store after enlisting another man as a lookout. Yee covered his face while looting andstole valuable items of jewellery. There was not any post-offence community service. He was in the Sears store at a time when lossprevention officers were still present in the store and risked confrontation with them during his offence. He was unemployed at the timeof sentencing, and his future plans were not firm regarding work or education. There is no any mention of turning himself in to police.

The offence was not a momentary lapse of judgment, as the sentencing judge made clear in her reasons for sentence. This case is not auseful comparator to the offence or the personal circumstances of Mr. Singh. [53] In Shafqat, the offence is similar, although Mr. Shafqat also raised his arms in celebration as he left London Drugs, and he wasone of the first group to enter the store. His conduct was found to be part of the incitement to others to enter the store.

He did not turnhimself in to police but answered their questions when they investigated him and approached him for an interview. [54] His performance while on bail included missed appointments on three occasions. There was not any post-offence communitywork. I do not find the level of moral culpability assessed by the court in Shafqat is comparable to the lesser offence involvement of Mr.Singh. [55] In Beirnes, the Crown and defence presented a joint submission to the court, seeking a conditional sentence order of two orthree months. The court imposed a two-month conditional sentence order. Ms.

Beirnes had looted a relatively high-value handbag fromThe Bay store. She had not turned herself in to police. She was 21 at the time of the offence and from a severely disadvantagedbackground. She was involved in substance abuse and had not been previously convicted. She had not been involved in any post-offence community service. The court did not specifically address the discharge provisions of the Criminal Code and essentiallyaccepted the joint submissions from counsel. [56] In the Ha sentencing decision, the court declined to grant a conditional discharge and noted that Mr.

Ha had entered The Baystore through a broken window, and The Bay store loss prevention staff were still present and visible in the store trying to deter looters. The court felt it was significant that Mr. Ha did not turn himself in to the police, although the lawyer for Ha was in the process ofattempting to arrange that surrender to custody when the arrest took place. There were no post-offence community services by Mr. Ha. His age at the time of the offence was 21. [57] The Crown also refers to the decision in Gartland, but the facts involved in Mr.

Gartland's entry to London Drugs are moreaggravated and blameworthy, in my view, than the actions of Mr. Singh. Gartland covered his face. He entered a closed cabinet toremove two cartons of cigarettes, and his actions have been found to provide encouragement to another offender to loot the cigarettesfrom the cabinet. Gartland had no good reason to be in the downtown area. He went there when he was already intoxicated and he hadseen smoke rising from the downtown area when he left the North Shore that night to see what was happening in the city.

He took theopportunity to drink more alcohol as he travelled downtown on the sea bus. He was about 21 at the offence date. There was not anypost-offence community service by Mr. Gartland. [58] The court in Gartland concluded that the actions of the offender in covering his face, entering a closed cabinet and removingcartons of cigarettes during this riot were morally blameworthy to such a degree that the sentence must express condemnation andpunishment. The court declined to impose a conditional discharge. A suspended sentence and probation for 16 months was found to beappropriate in the circumstances of Mr.

Gartland's offence. [59] I have also considered other sentencing decisions where the criteria in R. v. Fallofield (1973), (BC CA), 13C.C.C. (2d) 450, have been reviewed and applied by trial judges at sentencing and by the Court of Appeal at a sentence appeal hearing. These decisions all involve serious offences where the trial judge found the imposition of a conditional discharge was appropriate giventhe individual circumstances of the offender, their role in the offence, and application of the principles expressed by the Court of Appealin Fallofield.

These cases illustrating the application of the discharge provision for serious offences include R. v. Dennis, supra; R. v.Sandy, 2013 BCSC 2388, Madam Justice Gray, involving a conviction at trial for assault causing bodily harm where the victim wasstabbed by Ms. Sandy in the back of her head with a knife; R. v. Tone, 2003 BCSC 880, Associate Chief Justice Dohm, after guilty pleato assault causing bodily harm involving Mr. Tone breaking into the victim's home, striking the victim 10 to 15 times, and causingsignificant head trauma and permanent scarring; and R. v. Ilicic, 2012 BCSC 1486, Mr.

Justice Williams, after guilty pleas to traffickingin cannabis and possession of cocaine. Conclusion [60] The individualized process of sentencing must include an effort to balance the principles and purposes of sentencing within theframework of the circumstances of the offence and the offender's personal background. The need to achieve parity in sentencing is anessential aspect of the determination of a fit sentence by reference to the sentences imposed on other offenders with similar features andoffences. It is in the best interest of Mr. Singh to receive a conditional discharge.

It is not contrary to the public interest to grant adischarge in the exceptional circumstances of this case when considering the age of the offender, the low level impulsive theft ofrelatively limited value items that he did not want from a store where no staff are visible at the scene, the actions of the offender to turnhimself in to police and cooperate fully and honestly in the investigation. These are all important factors. But these are combined with acontribution of over 200 hours of valuable and responsible community service.

This volunteer service is consistent with the genuinemotivation of the offender to make amends to the community and is also a reflection of the personal qualities of honesty andresponsibility described in the letters written by his sisters and friends and filed at this hearing. [61] I have concluded the public interest is best served by acknowledging the responsible and mature actions of this offender in hispost-offence behaviour.

His own post-offence conduct has persuasively demonstrated the imposition of a conditional discharge is notcontrary to the public interest in this case. [62] The circumstances of this offence within the context of the riot are inherently serious, but I have concluded the provisionswithin a conditional discharge and probation terms will accomplish the essential purposes of sentencing and will be consistent with theprinciples of sentencing. [63] There will be a conditional discharge with a probation order for eight months.

[ 64 ] The terms of the probation order will be as follows. [ 65 ] Keep the peace and be of good behaviour. Appear before the court when required to do so by the court.

Notify the court or a probation officer in advance of any change of name or address, and promptly notify the court or probation officer of any change of employment or occupation. [ 66 ] Report in person to a probation officer at 275 East Cordova Street, Vancouver, B.C., by 3 p.m. on Tuesday, June 10, 2014, and report thereafter as and when directed for the purpose of supervision of the completion of community work service hours. [ 67 ] Complete 40 hours of community work service at the direction and to the satisfaction of your probation officer within the first six months of this probation order. [ 68 ] For the first four months of this order, you are not to be found outside your place of residence between the hours of 10 p.m. one day and of 5 a.m. the following day except with the written permission of your probation officer. [ 69 ] You are to present yourself at the door of your residence when requested to do so by a probation officer or any peace officer for the purpose of monitoring your compliance with the curfew condition of this order. [ 70 ] Within 30 days of this order, you shall provide a letter of apology to your probation officer to the attention of 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. [ 71 ] You shall not attend at any London Drugs store in the province of British Columbia. [ 72 ] The victim fine surcharge in the amount of $100 will be payable on or before August 8, 2014. [ 73 ] MS.

LAKER: Crown directs a stay of proceedings on Count 2. [ 74 ] THE COURT: Thank you to both counsel for your assistance. [ 75 ] MR. GOTTARDI: Thank you, Your Honour. (REASONS CONCLUDED)