R. v. Johal Date:, 2014 BCPC 89

Citation: R. v. Johal Date: 20140516 2014 BCPC 0089 File No: 223688-1-V Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JAPNEET SINGH JOHAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G. RIDEOUT Counsel for the Crown: M. Booker Counsel for the Defendant: M.D. Sanders Place of Hearing: Vancouver , B.C. Date of Hearing: March 31, 2014

Date of Judgment: May 16, 2014 A Corrigendum was released by the Court on June 9, 2014. The corrections have been made to the text and the Corrigendum is appended to this document. INTRODUCTION [ 1 ] Japneet Singh Johal (“the accused”) has entered a guilty plea that on or about June 15, 2011, in Vancouver, he participated in a riot. He is to be sentenced for this offence. The maximum potential penalty is a two-year prison sentence.

The minimum sentence is an absolute discharge. [ 2 ] Crown Counsel takes the position that a fit and proper sentence is a jail sentence in an institutional setting for 14 to 30 days coupled with probation. If the sentence is to be a community-based jail sentence (Conditional Sentence Order) that a fit and proper sentence would be in the range of three to six months coupled with probation. [ 3 ] The accused seeks the imposition of a Conditional Discharge pursuant to s. 730(1) of the Criminal Code which reads as follows: Conditional and absolute discharge 730.

(1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

ISSUE [ 4 ] The sole issue to be determined is: what is a fit and proper sentence having regard to the personal circumstances of the accused and the circumstances of the offence? BACKGROUND [ 5 ] The factual details of the accused’s acts in his participation in the riot were largely not disputed. Admissions of Fact pursuant to s. 655 of the Criminal Code were filed.

I have relied upon some of those Admissions in preparing this Ruling. [ 6 ] The accused went from Surrey into Vancouver to a restaurant with several friends to watch game seven of the Stanley Cup final between the Boston Bruins and the Vancouver Canucks. Apparently, the accused had a few drinks before going into Vancouver. His recollection was that he consumed in total 10 shots of hard liquor along with three to four beers. He was intoxicated. [ 7 ] The game ended at 7:45 PM. The accused and his friends left the restaurant.

Once outside of the restaurant, their attention was drawn to a disturbance taking place in the downtown core of Vancouver. At that time, a riot was underway in the downtown core of Vancouver. Property was being damaged, vehicles were on fire, stores were being looted and fights were breaking out. [ 8 ] The accused and his friends went into the downtown core where the riot was fully involved. The accused remained in the riot zone for upwards of two hours before he left to return to Surrey.

From both photographs that were filed and video clips that were presented to the Court, the accused can be observed in the midst of rioters in key locations. [ 9 ] He is observed running through the Parkwell Plaza Parkade on Richards Street where many vehicles were damaged, overturned and/or destroyed by fire. In the background where the accused is seen running, a vehicle was on fire. [ 10 ] The accused is next observed to be outside the London Drugs located at Granville Street at West Georgia Street. He is in the midst of a large tumultuous crowd.

Rioters had broken down the doors of London Drugs and people were streaming in and out of the store. London Drugs was being looted by the rioters. [ 11 ] Shortly after 10:15 PM, the accused can be seen on security video footage entering London Drugs through the broken glass doors and takes what appears to be a candy bar from the floor. He then exits the store. He was inside London Drugs for approximately six seconds. [ 12 ] Within a minute, the accused is observed on security video footage re-entering London Drugs. He is now with two of his friends.

They can be observed travelling through the top floor of the store and then taking the escalator down to the lower level of the store. The accused travels to the electronics

section of the store where he is observed standing at a display case. He is next observed running back to the escalator, up to the top floor and out the exit. He is observed carrying items in his hands. Those items are three

Blackberry Smart Phones valued at $1,427.00. [ 13 ] The accused was in London Drugs on the second occasion for approximately one minute. [ 14 ] On September 21, 2011, the accused contacted the Vancouver Police to advise that he wished to turn himself in for participating in the riot. That same day, the accused turned himself in and he was interviewed by the police. In that interview, he admitted that he entered London Drugs and stole the three cellular Smart Phones.

He gave one of the phones to a cousin, one to a friend and kept one for himself. [ 15 ] Several days later, the accused made arrangements to return to the cellular Smart Phones to the police. [ 16 ] While police were investigating the actions of the accused, they were also investigating the actions of the two friends of the accused. All three were ultimately charged with participation in a riot and the break and entry of London Drugs.

The Information affirming those charges was laid on October 1, 2013. [ 17 ] At the time that rioters were smashing the windows of London Drugs and then entering London Drugs to steal merchandise, there were 27 store employees in the store. Fearing for their safety, the store supervisor had the employees secure themselves in a small, windowless security room, located on the basement level of the store. [ 18 ] Victim Impact Statements were filed by some of the employees. Those statements revealed that the attack on London Drugs terrified these employees.

Some of the employees were traumatized to the point of tears. [ 19 ] The total loss to London Drugs, including stolen property, costs associated with repair and replacement of damaged fixtures and hardware and security costs was $832,472.45. [ 20 ] As a result of the riot, generally 112 retail businesses were damaged and 122 motor vehicles were damaged or destroyed.

The total estimated monetary loss as a result of the riot was $3,780,000. [ 21 ] There was also a psychological impact on victims of the riot, though to quantify the extent of that impact would be difficult as experiences varied greatly. “What is common to all is that the riot has stripped a sense of safety and security from the citizens of Vancouver”. (Admissions of Fact, paragraph 52.) POSITION OF THE PARTIES [ 22 ] It was submitted by Crown Counsel that participation in a riot is a serious offence and that the primary sentencing considerations must be general deterrence and denunciation. [ 23 ] It was further submitted by Crown Counsel that when one examines comparator cases that a jail sentence for participation in a riot is a fit and proper sentence.

In particular, it was submitted by Crown Counsel that it was aggravating that the accused entered London Drugs and stole property on two occasions. [ 24 ] It was submitted by Crown Counsel that when the accused entered London Drugs on the second occasion, it could not be described as impulsive but rather “purposeful”. The accused went to the electronics

section in the basement and stole the three cellular Smart Phones for his own personal gain. [ 25 ] It was submitted by Crown Counsel that the accused remained in the riot zone for upwards of two hours. In that timeframe, the accused was in multiple locations where the riot was fully involved. [ 26 ] It was submitted by Crown Counsel that the actions of the accused in entering London Drugs added to the terror and trauma experienced by the employees, who were locked in the basement security room.

While many other individuals also looted London Drugs that would not diminish or reduce the level of responsibility of the accused. The actions of the accused would encourage and incite others to loot London Drugs. [ 27 ] Crown Counsel was opposed to the imposition of a Conditional Discharge submitting that a Conditional Discharge could not meet the public interest component of s. 730 of the Criminal Code . In addition, it was submitted by Crown Counsel that a Conditional Discharge would not be either proportionate or at parity with comparator cases.

It was noted that as of the end of March 2013 that three Conditional Discharges and two Suspended Sentences had been imposed in riot cases. [ 28 ] The accused submitted that the principles of sentence would be met through the imposition of a Conditional Discharge. [ 29 ] The accused submitted that he is a person of good character and reputation. He filed 23 letters of reference which supported his good character and reputation. [ 30 ] He is currently attending Kwantlin Polytechnic University as an undergraduate student with a major in criminology.

The accused is achieving high grades and hopes to enter law school in the future. The accused has part-time employment and is highly regarded by his employer. [ 31 ] The accused is described as highly motivated in relation to his own personal rehabilitation. The accused took the initiative in arranging psychological treatment from Doctor Karl Williams as he was concerned that his use of alcohol had become an addiction. [ 32 ] The accused filed a report from Doctor Williams in which the doctor was of the opinion that the accused was genuinely mortified and remorseful with respect to his conduct at the riot.

The doctor was also of the opinion that had the accused not been intoxicated that it would be “highly unlikely” that he would have engaged in the criminal behavior.

[33] Doctor Williams was also of the opinion that the accused was at a very low risk of re-offending so long as he addressed hisalcohol dependency. [34] The accused also received psychological counselling from Shana Cherry, M.A. Ms. Cherry provided a report in which shedescribed the accused as an individual who came from a, “stable home environment, has close friends and family, and has not had anyinfluencing experience that could be described as traumatic which would explain his behavior in the riot”. [35] It was the opinion of Ms.

Cherry that the accused got caught up in the “crowd surge” at the riot and, once you add alcohol intothis dynamic, the accused then made a very bad choice in participating in the riot when he entered London Drugs. [36] The accused submitted that he has been sober for well over a year. He filed a Certificate of Completion of a “Basic SkillsRecovery Group” in which he attended six hours of counselling.

In addition, the accused donated $1500 from his employment income tothe British Columbia Children’s Hospital Foundation on March 14, 2014. [37] The accused submitted that he has volunteered with the Surrey Food Bank since April 2013. On behalf of the Food Bank,Twyla Vokins, coordinator of volunteer resources, in correspondence filed confirmed that the accused volunteered 70 hours of his time inservices ranging from, “drug rehab house groups, mentally delayed, physically challenged, students, families, corporate groups and youreveryday people …”. Ms.

Vokins describes the accused as an “exceptional volunteer” and a “valued member of my team”. [38] The accused submitted that he took responsibility by turning himself in to the police when he was not even a target in theIntegrated Riot Team Investigation. The accused submitted that significant weight should apply to this feature of his character, as had henot turned himself in, he may well have never been identified as a participant in the riot. [39] The accused submitted that his conduct was impulsive and fueled by the misuse of alcohol.

At the time London Drugs wasbeing entered and looted, the accused exercised a very poor and misguided judgment in the belief that if the London Drug looters couldget away with what they were doing then so could the accused. [40] The accused submitted that on the second occasion when he entered London Drugs, he had not formed any specific intention tosteal any Smart Phones. His decision to do so was formed on a spur of the moment.

The accused submitted that in the spectrum of levelof participation that his conduct in taking the Smart Phones would be at a low level. [41] It was submitted by the accused that he exemplifies exceptional personal circumstances and that his post offence conduct hasaddressed all of the principles of sentence. It was submitted by the accused that the registration of a criminal record at this stage of theaccused’s life, taking into account his future law school prospects, would irreparably harm the future prospects of the accused.

THE LAW [42] Sentencing principles for participation in the 2011 Vancouver riot have been addressed in many sentence decisions by Judges ofthis Court. They all affirm the principle enunciated in R. v. Loewen (1992), (BC CA), 75 C.C.C. (3d) 184 (B.C.C.A),at paragraphs 10 and 12, that participation in a riot is a serious offence as the very nature of a riot has the potential to undermine thevalues of a free and democratic society. [43] In a riot, an individual’s actions are inextricably linked to the actions of other rioters.

As a result, the culpability of the accusedmust be considered in the context of the riot as a whole: R. v.

Peepre, 2013 BCCA 115, at paragraph 27. [44] The Court of Appeal in Loewen, supra, and Peepre, supra, confirm that in sentencing an individual for participation in a riot thatgeneral deterrence and denunciation are paramount considerations and that a jail sentence may be an appropriate sentence even for a firsttime youthful offender. [45] I emphasize “may be an appropriate sentence” as the process in determining a fit and proper sentence is an individualizedprocess that takes into account the circumstances of the offence and that that of the offender: R. v.

Garcia, 2014 BCPC 29 (Can LII), atparagraph 29. [46] Where an individual’s conduct in a riot elevates in degree of severity, the Court of Appeal in Peepre, supra, at paragraph 30,noted that such elevated conduct would potentially attract a more severe penalty. [47] The accused properly points out that a Conditional Discharge is available to an offender charged with a serious offense such asassault causing bodily harm: R. v. Carroll, [1995] B.C.J. No. 365 and R. v. Sweet, [2007] B.C.J.

No. 1747. [48] I note, however, that the vast majority of sentences imposed for participation in a riot do result in the imposition of an actual jailsentence or the imposition of a Conditional Sentence Order. Parity is an important principle in imposing sentence.

From the applicationof parity, a framework of sentencing has developed in relation to the imposition of sentences in the riot cases. [49] Many individuals who have pled guilty and have been sentenced for participation in the 2011 Vancouver riot are individualswith no prior criminal record, and in many respects, are individuals of prior good character and reputation, yet received either aconventional jail sentence or a Conditional Sentence Order. There are exceptions.

As noted up until the end of March 2013, Judges ofthis Court have imposed Conditional Discharges on three occasions and Suspended Sentences on two occasions. [50] In R. v. Laboissonniere, 2013 BCPC 182 , Bastin, P.C.J., sentenced the accused to a Conditional Discharge with aprobation order for 16 months. Ms. Laboissonniere was downtown in Vancouver on June 15, 2011, to watch the hockey game with hersister.

[51] After the game the accused and her sister walked to the area of London Drugs. The accused saw people damaging LondonDrugs. It was at that moment that she made a “split second decision to run in with the crowd, and did so.” (Paragraph 26.) [52] The accused was in the store for approximately 30 seconds. During that time, she took two bottles of water, a bag of potatochips and a Vancouver Canucks’ water bottle and then left the store. Upon leaving the store, she abandoned the stolen property. [53] Like the accused before me, Ms.

Laboissonniere turned herself into the police and admitted to theft from London drugs. Unlikethe accused before me, Ms. Laboissonniere was identified as a suspect by the Vancouver Police Integrated Riot Team and herphotograph was published. [54] At the time of the Vancouver riot, Ms. Laboissonniere was 19 years old. At the time of sentence she was 21 years old. Ms.Laboissonniere suffered from a history of psychological disorders since she was 12 years of age. She had a lengthy history of anxiety anddepression which resulted in periods of hospitalization. [55] Bastin, P.C.J., noted that Ms.

Laboissonniere was subjected to a great deal of public scrutiny and media exposure as a result ofher participation in the Vancouver riot. Bastin, P.C.J. was provided with three large binders of press releases in which Ms.Laboissonniere was the subject of a large amount of local, national and international media coverage relating to her participation in theriot. [56] In relation to post offence conduct, Ms. Laboissonniere volunteered her time at various schools to make presentations tostudents about the impact of her participation in the riot, and consequences of that participation.

It was her expectation that herpresentations would act as a deterrent to students who might get caught up in some future similar situation. [57] Bastin, PCJ, noted that Ms. Laboissonniere’s conduct was at a “low level” and that her illegal conduct did not amount to aserious act of looting. Bastin, PCJ, took into account the fact that the 27 London Drugs employees were hiding in the security room inthe basement. Bastin, PCJ, found that it was significant that Ms.

Laboissonniere was only in the store for about 30 seconds and that insuch a short period of time it was: “unlikely that she had any significant personal effect upon the employees who were hiding in thebasement of the store.” (Paragraph 100.) [58] Bastin, P.C.J., determined that the registration of a criminal record on Ms.

Laboissoniere, after consideration of all of thecircumstances of the case, including her personal circumstances and the circumstances of the riot, that there was a: “high probability thata criminal record for the accused would have serious adverse consequences for her that may be disproportionate to her brief, impulsiveconduct that was involved in her offence.” (Paragraph 101.) [59] In R. v. Lennox, [2013] B.C.J. No. 2164, Harris, P.C.J., imposed a 16 month Conditional Discharge. Mr. Lennox enteredLondon Drugs on two occasions during the 2011 Vancouver riot.

On the first occasion, he merely walked around and observed whatother people were doing. He was in the store for about two minutes and then left. He re-entered about one minute later and stole someGummy Bear candies from a display case and then abandoned the property once he left the store. [60] Harris, PCJ, found that Mr.

Lennox’s, “level of blame worthiness was at the low end” and that having regard to his, “uniquecircumstances” that the imposition of a sentence resulting in a criminal record would be, “… Disproportionate to the seriousness of theoffense and his degree of culpability.” (Paragraph 59.) [61] In R. v. McCuster, 2014 BCPC 26 , 2014 BCPC 0026, I imposed a 16 month Conditional Discharge on Ms. McCusterfor her participation in a riot. Ms. McCuster had no prior criminal record, enjoyed family support, was a person of good character andreputation and, like Ms.

Laboissonniere, she had significant mental health issues. [62] Ms. McCuster’s participation in the riot was extremely minor. She reached through an already broken window of a retail storeand removed a clothing item, which she then discarded. I did not find that her action incited others. I indicated in my Ruling that Ms.McCuster, “… lost her judgment for approximately five seconds.” (Paragraph 21.) [63] Like the accused before me, Ms. McCuster took positive steps to promote her rehabilitation. I took into account her futurepositive education prospects. I accepted Ms.

McCuster’s submission that the imposition of a criminal record would be disproportionate toher circumstances. I concluded that there were, “exceptional circumstances” that would justify the imposition of a ConditionalDischarge. [64] I find that in Laboissonniere, supra, Lennox, supra, and McCuster, supra, that the public interest component of s. 730(1) of theCriminal Code was addressed by the balancing of two elements. First, that each of the accused were able to establish exceptional orunique personal circumstances.

Second, that the level of responsibility for participation in the riot by each of the accused was minor. Ofthese two elements, it is my opinion that the second element should be given greater weight in determining whether or not a ConditionalDischarge 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 acandy 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 consideredminor. [66] The accused was in London Drugs on the second occasion for approximately one minute. During that time, he travelled throughthe 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 asdepicted 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 storesupervisor 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 hisown personal rehabilitation. His future prospects appear positive. He no longer consumes alcohol and the risk of reoffending is low.

Heenjoys 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 ConditionalDischarge. However, there is one significant element that militates against the imposition of a Conditional Discharge and that turns onthe 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 wouldbe 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. Hekept a Smart Phone for personal use until September 2011, when he had a change of heart and turned himself, and eventually the SmartPhones, 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 adischarge would be in the public interest in light of the accused’s elevated level of responsibility. [74] Having made that determination what then is a fit and proper sentence that ought to be imposed having regard to the personalcircumstances of the accused and the circumstances surrounding the offence? [75] Without question, the accused has taken significant steps to promote his personal reformation and rehabilitation.

His volunteerwork with the Surrey Food Bank and the $1500 donation to the British Columbia Children’s Hospital foundation has greatly benefitedthose organizations. [76] The accused has excelled in his university program and I anticipate he will continue to achieve high grades. I appreciate theregistration of a criminal record will impact his pursuit of a career in law. However, that impact would be likely more severe were I toimpose a conventional jail sentence or a Conditional Sentence. [77] In R. v.

Cacnio, 2012 BCPC 314 , 2012 BCPC 0314, Galati, P.C.J., in imposing a Suspended Sentence noted that theregistration of a criminal record should not be underestimated in addressing the principle of deterrance. At paragraph 53, he had this tosay: There is also no need to set an example by her sentence more forcefully than by recording a conviction and attaching restorative, yetonerous conditions. The stigma which attaches to a conviction for an indictable offence should not be underestimated and cannot beoverlooked.

It is significant and insofar as general deterrence is achievable, the presumptive likelihood of a conviction which will havean effect on one’s life for at least several years, is arguably as much of a deterrent as the additional prospect of a short period ofintermittent imprisonment. [78] In this case, a Suspended Sentence would meet the principles of denunciation and deterrence. I am also satisfied that aSuspended Sentence would not offend the principle of parity in relation to comparator cases. [79] I am suspending the passing of a sentence and place the accused on probation for a period of two months.

In addition, to thestatutory conditions you are also bound as follows: (

i) For the first 30 days of this order, you shall be in your residence or on the lot on which it is situated between the hours of 7 PMof one day through to 6 AM of the following day, except for genuine medical emergency pertaining to yourself or to an immediate familymember, or for travelling directly to, being at, and returning directly from your place of employment, or for travelling directly to, beingat, and returning directly from university or other education program, or for travelling directly to, being at, and returning directly fromany counselling program in which you are enrolled. (ii) For the following 30 days of this order, you shall be in your residence or on the lot on which it is situated between the hours of10 PM of one day through to 6 AM of the following day, except for genuine medical emergency pertaining to yourself or to animmediate family member, or for travelling directly to, being at, and returning directly from your place of employment or for travellingdirectly to, being at, and returning directly from university or other education program. (iii) If required to do so by a peace officer, you shall present yourself at the door of our residence to confirm curfew compliance. (iv) When outside of your residence, you shall carry a copy of this order on your person and present same upon demand of any peaceofficer. [80] In light of the accused’s contribution to the British Columbia Children’s Hospital Foundation, I am waiving the Victim FineSurcharge.

In light of the accused’s volunteer work with the Surrey Food Bank, I decline to make any order with respect to communitywork service hours.

The Honourable Judge G. Rideout Provincial Court of British Columbia CORRIGENDUM - Released June 9, 2014 In the Reasons for Sentence dated May 16, 2014, the following change has been made: [ 81 ] On page 10, paragraph 49, the words “yet received either a conventional jail sentence or a Conditional Sentence Order” should be added to the end of the first sentence.

It should now read as follows: Many individuals who have pled guilty and have been sentenced for participation in the 2011 Vancouver riot are individuals with no prior criminal record, and in many respects, are individuals of prior good character and reputation, yet received either a conventional jail sentence or a Conditional Sentence Order. There are exceptions. As noted up until the end of March 2013, Judges of this Court have imposed Conditional Discharges on three occasions and Suspended Sentences on two occasions. The Honourable Judge G. Rideout Provincial Court of British Columbia