R. v. Harrison Date:, 2015 BCPC 165

Citation: R. v. Harrison Date: 20150505 2015 BCPC 0165 File No: 223712-2-VC Registry: IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal) REGINA v. ROBERT WILLIAM HARRISON EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M. GIARDINI Counsel for the Crown: R. Flannigan

Counsel for the Defendant: D.G. Baker Place of Hearing: Vancouver , B.C. Date of Hearing: May 5, 2015 Date of Judgment: May 5, 2015 Introduction [ 1 ] THE COURT: In December 2014, Mr. Harrison entered a guilty plea on the charge of taking

part in a riot in Vancouver, British Columbia, on June 15, 2011. He also entered a guilty plea on the charge of committing an assault on Albert Easterbrook in Vancouver, British Columbia, during the course of a riot on June 15, 2011. The matter was put over for sentencing and to obtain a pre-sentence report and a subsequent psychological assessment. [ 2 ] I now turn to the sentencing position of the parties, as they will inform, in large measure, what follows. [ 3 ] The Crown initially submitted Mr. Harrison should receive a jail sentence in the range of three to six months, followed by a probation order.

However, after reviewing the pre-sentence report and the psychological assessment, and considering Mr. Harrison's personal circumstances, the Crown revised its initial sentencing position. It now seeks an intermittent jail sentence of 90 days to be served on weekends, followed by a period of probation. In revising its sentencing position, the Crown took into account the fact that employment is very important to Mr.

Harrison, and it has brought stability to his life. [ 4 ] The defence submits a jail sentence is appropriate; however, the jail sentence should be served pursuant to a conditional sentence order in the 6- to 18-month range, followed by a period of probation. Circumstances of the offences [ 5 ] The incident giving rise to the charges against Mr. Harrison took place in Vancouver on June 15, 2011, the night of the now infamous second Vancouver Stanley Cup riot. The Vancouver Canucks were playing the Boston Bruins in the seventh game of the Stanley Cup finals.

During that seventh game, and during earlier playoff games, tens of thousands of people congregated in the downtown area of Vancouver. Large television monitors were set up in designated venues which allowed people to come together and watch the games. This had occurred before at earlier games without incident. However, at the end of the seventh game, the mood and the actions of some people in the crowd turned ugly.

What had been billed as a party quickly escalated into a violent riot. [ 6 ] On the night of June 15, 2011, approximately 155,000 people were in the downtown core of Vancouver; 55,000 people were at or around the live site adjacent to the arena. [ 7 ] As the rioting crowds occupied West Georgia Street and the surrounding areas, multiple commercial premise windows were broken and the contents of 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. Numerous police officers and civilians were assaulted.

An atmosphere of lawlessness, violence, and destruction quickly consumed the downtown core of Vancouver. [ 8 ] Video images showing some of the lawlessness, violence, and destruction were played as part of this sentencing hearing. [ 9 ] The sentencing proceeded on the basis of admissions of fact agreed to for the purpose of dispensing with proof thereof. I have not summarized all of the background circumstances of the riot generally, as there is no need to do so. The facts of that riot and what ensued are well known to everyone in this room and to many, many citizens in Vancouver and the Lower Mainland.

Agreed facts regarding Mr. Harrison's participation in the riot [ 10 ] I will summarize from the agreed statement of facts and not reading those facts in verbatim. [ 11 ] Mr. Harrison was first captured on video shortly after the fire of a vehicle, the Versa, was put out and rioters, including Mr. Harrison, were attacking a GMC. This occurred in the area near the old central post office on West Georgia Street between Hamilton and Homer Streets. [ 12 ] Initially, some rioters damaged the GMC and other rioters, including Mr. Harrison, tried to overturn it.

Multiple attempts were made to damage and overturn the GMC over a short period of time. During this time, some rioters, but not including Mr. Harrison, attempted to set the GMC on fire. Some Good Samaritans (Mr. Andrew Perry and Mr. Albert Easterbrook) tried to stop the attack on the GMC. Mr. Easterbrook removed multiple pieces of burning paper from the GMC. Mr. Easterbrook punched one rioter, Mr. Sawicki, after he had placed burning paper in the GMC. [ 13 ] After Mr. Easterbrook punched Mr. Sawicki, other rioters, including Mr. Harrison, attacked Mr. Easterbrook. Mr. Easterbrook was struck by a rioter, Mr.

Makris, as Mr. Harrison put Mr. Easterbrook into a headlock and hit him on the head. Other rioters pursued Mr. Easterbrook around the rear of the GMC. At the rear of the GMC, Mr. Easterbrook was knocked to the ground and assaulted by a number of rioters. [ 14 ] Police officers intervened and moved the rioters away from Mr. Easterbrook and the GMC. Firefighters attended and put out the small fire that had been set in the front seating area of the GMC. Mr. Easterbrook suffered cuts and scrapes to his head, arms, and legs. He provided a statement which was entered in this sentencing hearing.

[ 15 ] Video images of Mr. Harrison and the other rioters attacking the GMC, the assault on Mr. Easterbrook, and the police clearing the area around the GMC were also provided and played for the court during the sentencing hearing. [ 16 ] After putting out the small fire that had been set in the GMC, the police and firefighters moved away. Rioters once again attacked the GMC. During this time, some rioters pulled the toolbox off the back of the vehicle and Mr. Harrison and others then overturned the GMC.

Photographs and video which depicted these events were entered as exhibits in these proceedings. [ 17 ] After the GMC was overturned, many people climbed on top of the GMC. A rioter pulled the gas cap off the GMC and the people on top of it got off. Mr. Harrison and other rioters tried unsuccessfully to light a teddy bear on fire. Eventually one rioter took the teddy bear, threw it into the gasoline, and lit it on fire. The GMC then caught fire. This was at approximately 8:30 p.m. The GMC was ultimately completely destroyed. [ 18 ] Mr.

Harrison remained in the area of the burning GMC for a period of time, until forced away by police officers. Video images of Mr. Harrison and other rioters attacking and overturning the GMC, the GMC being set on fire, and the immediate aftermath of these actions were depicted on video that was played during the sentencing hearing.

Additionally, the police statement and victim impact statement of Roy Hermanus, the owner of the Versa and the GMC, were provided to the court. [ 19 ] Police officers used various techniques, including making loud announcements on loudspeakers and tear gas in order to force the crowd away from the burning GMC. The police forced Mr. Harrison and other rioters eastbound on Georgia Street toward the intersection of Hamilton and West Georgia Street. Mr. Harrison refused to leave the area. During that time he and other rioters held large sections of blue fencing between themselves and police officers. Mr.

Harrison also had a metal pole in his hand, which he used to hit objects towards the police line using a golf swing. [ 20 ] Video images of Mr. Harrison and other rioters confronting the police on West Georgia Street, west of the GMC, hitting golf swings towards the police line, and holding blue fencing, were depicted on the video and shown at this sentencing hearing. [ 21 ] Following the riot, the police undertook extensive investigative procedures. On May 15, 2012, a photographic image of Mr. Harrison taken on the night of the riot was posted on the Vancouver Police Department riot website.

The website was designed to allow viewers to identify and provide information about photographs which were posted on it. Mr. Harrison's photograph was labelled IRIT00520. As a result of tips received and further investigation by the police, that photograph was identified to be that of Mr. Harrison. [ 22 ] On April 1, 2014, the police left a message for Mr. Harrison which he returned on April 2, 2014. On April 8, 2014, it was arranged between the police and Mr. Harrison's lawyer that Mr. Harrison would attend the Vancouver Police Detachment on April 11, 2014.

He did so and was arrested and given his rights under the Charter and at common law. The police wished to interview Mr. Harrison, but he exercised his right to silence. He was released the same day. Circumstances of Mr. Harrison [ 23 ] First, I will summarize the pre-sentence report. [ 24 ] A pre-sentence report was prepared by a probation officer and set out information regarding Mr. Harrison's background. Mr. Harrison is currently 24 years old. That would have made him approximately 21 years old -- [ 25 ] MR. BAKER: He was -- he was 20 at the time. [ 26 ] THE COURT: I am sorry? [ 27 ] MR.

BAKER: He was 20 at the time of the riot. [ 28 ] THE COURT: Twenty years old at the time of the riot. He is single and has no children. Both his mother and father are alive. He has an older sister. [ 29 ] His parents separated when Mr. Harrison was 18 years old. Mr. Harrison and his mother described his father as a loving man. However, his father had drinking issues and was not there for the family emotionally. Mrs. Harrison and her husband were not united in their parenting approach. Mr. Harrison told the probation officer that when his mother and father separated, it was a relief. [ 30 ] When Mr.

Harrison was very young, he was diagnosed with Crohn's disease. This was very hard for him physically and necessitated admissions to hospital from time to time. Defence counsel explained that the disease resulted in Mr. Harrison having red, tender nodules, inflammation of the joints and spine, as well as fever, vomiting, and weight loss. His disease affected his appearance. One of the non-medical effects of his disease was that he was ostracized by other children for being different, and thus from an early age he experienced social rejection. [ 31 ] His mother reported to the probation officer that Mr.

Harrison's behaviour became, to use her word, "horrible" when he was a teenager. He was a very troubled youth. Mr. Harrison himself described his youth as a traumatic time in his life. He misused various substances including alcohol, marihuana, LSD, ecstasy, and crystal meth. [ 32 ] Mr. Harrison completed Grade 10 and has no post-secondary education. He is currently employed by Sylvan Distribution where he has worked since January 2010. At the time the pre-sentence report was prepared, he was working from 1:00 p.m. to 9:30 p.m.

Letters filed at the sentencing hearing indicate that he works as a lead hand and was elected shop steward at his work location. [ 33 ] He told the probation officer that he is very regretful and embarrassed about his behaviour on the night of the riot. He said he was highly intoxicated at the time. Until he was shown photographs which recorded his behaviour during the riot, he was in denial. He told the probation officer he does not remember his behaviour. He also told the probation officer that he had no idea he had caused a member of the public harm. He expressed his extreme apology to the victim.

[ 34 ] I now turn to the psychological assessment. A psychological assessment was prepared by Randall Kropp, a registered psychologist at the Vancouver Regional Clinic, Forensic Psychiatric Services. He interviewed Mr. Harrison and his mother. He reviewed various documents, as well as psychological tests taken by Mr. Harrison. [ 35 ] The psychologist indicated that Mr. Harrison's educational achievement was affected by his emotional and behavioural problems, including ADHD. Mr. Harrison and his mother told the psychologist that Mr. Harrison did not suffer from learning disabilities.

In fact, the psychological testing undertaken in the course of the evaluation suggests that Mr. Harrison is very intelligent. [ 36 ] The psychologist reviewed Mr. Harrison's mental health. He noted that Mr. Harrison has a long history of mental health issues. Mr. Harrison has suffered from ADHD most of his life. He told the psychologist of lifelong symptoms of depression and anxiety of fluctuating intensity and duration. Mr. Harrison has struggled with addiction. The psychologist noted that Mr. Harrison demonstrated considerable insight into his emotional problems. Mr.

Harrison described himself as feeling inferior. His mother also described him as having an extremely negative thinking style. [ 37 ] The psychologist noted that there have been at least two incidents of suicidal gestures that resulted in hospitalizations in 2008 and 2011; the latter was a short time after the June 2011 riot. Mr. Harrison was seen by Dr. Levy on both occasions at VGH. Dr. Levy suggested various diagnoses, including alcohol abuse/dependence, residual ADHD, and oppositional defiant personality traits. [ 38 ] Both Mr.

Harrison and his mother have noted some improvement in his condition in recent years. They attribute this to the fact he is gainfully employed. Mr. Harrison believes he can control his drinking. He denied that he had used any other drugs in recent months; this is at the time he was interviewed for the pre-sentence report and for the psychological assessment. He also said he is now interested in pursuing counselling. He has attended for addictions treatment in Richmond. Mr.

Harrison told the psychologist he is interested in trying psychotherapy, which he has never tried before. [ 39 ] The psychologist noted that although Mr. Harrison believes there has been improvement in his condition, his responses on the Personality Assessment Inventory raise some concern that he is still experiencing at least moderate levels of depression and anxiety. The results of the PAI suggest that Mr. Harrison has difficulty disentangling his overlapping problems of depression, anxiety, and substance abuse.

It is clear that all of these areas require continued attention and treatment. [ 40 ] The psychologist noted that the test results indicate Mr. Harrison harbours some anti-authority and oppositional attitudes. Moreover, the results are consistent with Mr. Harrison's self-reported lifestyle and adjustment problems. However, the results of other testing suggest that Mr. Harrison possesses high, possibly superior, intelligence. This suggests there is no neurocognitive problem that would prevent Mr. Harrison from gaining a benefit from psychological treatment. [ 41 ] In his

summary and recommendations, the psychologist made the following points: Mr. Harrison has a lengthy history of behavioural/ emotional problems dating back to his childhood. Of particular concern are his history of substance abuse, depression, anxiety, and ADHD. These problems are interrelated and should be addressed through psychiatric and psychological intervention. Mr. Harrison's motivation for and commitment to professional intervention has been problematic in the past. However, he is currently open to psychological treatment. [ 42 ] The psychologist's opinion is that Mr.

Harrison is a relatively good candidate for psychological treatment techniques. He is intelligent and insightful, and his entrenched negative thinking style might be amenable to standard techniques, such as cognitive behavioural therapy. The psychologist strongly recommends individual, that is one-on-one, treatment from a qualified professional. He stated, [as read in]: It is more likely that Mr. Harrison will find the quality and intensity of treatment he requires in the community, rather than in a correctional institution. [ 43 ] Lastly, the psychologist believes that, despite Mr.

Harrison's negative experience in the past with medications, he could benefit from a reassessment of his conditions from a psychiatric perspective. It is often the case that depression and anxiety respond best to some combination of medication and psychotherapy. Principles of sentencing [ 44 ] First, I will review the general legal principles of sentencing. The principles of sentencing which have evolved at common law are, by and large, codified in the Criminal Code .

The Criminal Code , in s. 718 , provides that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society. That

section also sets out the objectives of sentencing, which include the following: 1. the denunciation of unlawful conduct; 2. deterrence of the offender and others from committing further offences; 3. separation of the offender from society where necessary; 4. rehabilitation of the offender; 5. reparation for harm done; 6. and promotion of a sense of responsibility in the offender, including acknowledgment of the harm done.

[45]

Section 718.1 sets out the most basic and important principle of sentencing; namely, that the sentence imposed must beproportionate to the gravity of the offence and the degree of responsibility of the offender. [46] Additionally, s. 718.2 sets out a number of specific principles, including the following: a sentence should be similar to sentenceimposed on similar offenders for similar offences in similar circumstances; an offender should not be deprived of liberty if aless-restrictive sanction is appropriate; all reasonable sanctions other than imprisonment should be considered, with particular attention tothe circumstances of aboriginal offenders; where consecutive sentences are imposed, the total sentence should not be unduly long orharsh; and a sentence should be increased or reduced to take into account any aggravating or mitigating circumstances of the offenderand of the offence. [47] I now turn to how participating in a riot is characterized. [48] The case law cited by the Crown, which is not disputed by the defence, and the analysis set out in many other riot-related casesestablish the following: 1.

Participation in the June 15, 2011, riot is a serious offence. 2. Rioting by definition disturbs the peace of the community tumultuously. It is a public disorder that has escalated to the point ofactual or threatened force or violence, and that causes people of reasonable firmness and courage to be alarmed. 3. Participating in a riot is, by its very nature, a serious threat to an orderly society. 4. Participation in a riot, as defined in s. 64 of the Criminal Code, does not require the commission of a separate criminal offence oroffences.

One can be culpable of participating in a riot by word, deed, or other manner, so long as the person's actions contributed to theexcitement, fervour, intimidation, and dangerousness of the situation. 5. In R. v.

Dickinson, 2012 BCPC 40, the first case dealing with a sentence in the 2011 Stanley Cup riot, Judge MacLean of this courtacknowledged and considered the following factors in sentencing an accused for participating in a riot: the offender's degree ofparticipation; the context of the riot generally, including the impact on the victims; the offender's personal circumstances; and the needfor general deterrence. 6. The primary sentencing objectives when dealing with a riot-related offence are general deterrence and denunciation. A sentence thatis most likely to achieve those objectives is a custodial sentence. 7.

The first-time offender is likely to receive a prison sentence of some significant length if there are aggravating factors, such asinciting others or engaging in additional criminal acts such as assault, arson, wearing a mask, or committing multiple criminal acts inmultiple locations. [49] I next turn to the principles relating to sentencing of offenders with a mental illness. [50] Several recent cases have acknowledged that while the gravity of the offence is not lessened by personal circumstances of theoffender, the mental disorder of an offender is a factor that can be considered in assessing the degree of responsibility of the offender. [51] In R. v.

Ayorech, 2012 ABCA 82 , [2012] A.J. No. 236, the Alberta Court of Appeal considered a Crown appeal from aglobal sentence of one year's imprisonment plus three years' probation for robbery, possession of a knife, and theft under $5,000. TheCrown took the position that the sentencing judge erred by treating the accused's mental illness and substance abuse as mitigatingfactors. In its decision, the Alberta Court of Appeal noted that substance abuse, by itself, is ordinarily not a mitigating factor.

However,the sentencing judge in that case did not characterize it as such. [52] On the other hand, mental disorders, particularly schizophrenia, can significantly mitigate the sentence, even if the evidencedoes not disclose that the mental illness was the direct cause of the offence or that it was carried out during a period of delusions,hallucinations, or such.

The court noted at paragraph 11: The relative importance of deterrence and denunciation is attenuated when sentencing mentally ill offenders. [53] The court further noted that the gravity of the offence is not lessened by the personal circumstances of an offender, but a mentaldisorder diminishes the degree of responsibility of the offender. It further noted that the effect of imprisonment should be taken intoaccount when it would be disproportionately severe because of the offender's mental illness. [54] Similarly, in R. v. Patey, [2012] N.J.

No. 113, Judge Gorman of the Newfoundland and Labrador Provincial Court consideredthe case law pertaining to the sentencing of offenders with a mental illness. He noted that an offender's mental illness will always be afactor in sentencing. He further noted that at times a psychiatric disorder will be a factor mitigating sentence, but at other times it will bea factor favouring an increase in sentence so as to protect the public from a dangerous person who has committed a serious offence. Judge Gorman further noted that a sophisticated approach is necessary when sentencing offenders who have a mental illness.

He wroteat paragraph 39: The reality of an offender's psychiatric disorder must be recognized and such offender's sentenced with the disorder in mind. [55] More recently, in R. v. Anthony-Cook, 2015 BCCA 22 , [2015] B.C.J. No. 63, our Court of Appeal cited the Ayorechcase. In Anthony-Cook, our Court of Appeal considered the defendant's appeal of a sentence where the sentencing judge had departedfrom a joint submission. Mr. Anthony-Cook had been charged with manslaughter. At trial, the judge rejected the joint submission

recommending that Mr. Anthony-Cook be incarcerated for an additional 18 months. He rejected it on the grounds that the sentence was unfit. He imposed a sentence of two years less one day, factoring in deductions for pre-sentence custody. The judge also imposed a three-year probation order. [ 56 ] On appeal to the B.C. Court of Appeal, Mr. Anthony-Cook submitted the trial judge erred in departing from the joint submission in imposing too high a sentence and in failing to take into account restrictive bail conditions in accounting for pre-sentence custody credit, as well as in imposing the probation order.

The appeal was dismissed on all counts. [ 57 ] In the course of reaching its decision, the court noted the following at paragraph 31: The appellant raised questions about the extent of his moral culpability given his mental . . . disorder, but this point was not stressed on appeal. As the jurisprudence establishes, "the relative importance of deterrence and denunciation is attenuated when sentencing mentally ill offenders", especially those suffering from schizophrenia. The court cited R. v. Ayorech , R. v. Ellis , and R. v. Batisse .

It went on to say: Had these been the only sentencing goals underlying the trial judge's reasons, this issue would have warranted further consideration. However, in reaching the conclusion he did, the judge also heavily emphasized the importance of rehabilitation and the need to protect society. [ 58 ] I now turn to sentences in other riot-related cases. The Crown submitted a 31-page sentencing chart that set out brief details of the various cases that have come before the courts following the 2011 Stanley Cup riot.

Those cases indicate that the sentences suggested by both the Crown and the defence in this case are within the generally accepted range of sentences for similar cases that have come before the court. However, as the saying goes, the devil is in the details. In this case, there is no issue between the Crown and the defence that a jail sentence is necessary. The only issue is the length of the jail sentence and whether it should be served in real jail or in the community.

Should a conditional sentence be imposed [ 59 ] As I have noted, it is clear from the submissions of counsel that a jail sentence is appropriate in the circumstances. The issue to be decided is whether Mr. Harrison should serve that jail sentence in custody or in the community under a conditional sentence order. [ 60 ]

Section 742.1 of the Criminal Code provides that in certain circumstances a judge who imposes a sentence of imprisonment may order the offender to serve the sentence in the community by imposing a conditional sentence order. [ 61 ] In R. v. Proulx , 2000 SCC 5 , the Supreme Court of Canada set out the approach a judge should follow when considering whether the imposition of a conditional sentence order is appropriate. The judge should first make a preliminary determination about the possible range of sentences for the offence in question.

Conditional sentence orders can only be made in circumstances where the jail sentence imposed is less than two years. [ 62 ] As noted, in this case, the only sentencing issue is whether the sentence imposed should be served in real jail or in the community. The Crown is asking for a real jail sentence of 90 days intermittent. The Crown has thereby acknowledged that a sentence of two years less a day is appropriate in the circumstances.

The defence also acknowledges that a term of imprisonment in the provincial range is appropriate in the circumstances. [ 63 ] Having concluded that the appropriate range of sentence for the offences before me, which are participating in a riot and assault, fall within the provincial sentence range, I next need to consider whether the other prerequisites of s. 742.1 are met.

Those prerequisites are as follows: 1. there must be no minimum term of imprisonment; 2. the court must be satisfied that serving the sentence in the community would not endanger the safety of the community; and 3. serving the sentence in the community must be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. [ 64 ] I will turn to those prerequisites first. There is no minimum term of imprisonment for the offence of participating in a riot or for the offence of assault. Second, would the safety of the community be endangered if Mr.

Harrison was allowed to serve the sentence in the community? In other words, is there a risk that Mr. Harrison would reoffend and, if so, what is the gravity of the damages which could ensue. [ 65 ] Mr. Harrison has no criminal record. In the totality of the circumstances of his case, I am satisfied that Mr. Harrison would not endanger the safety of the community if he served his sentence under a conditional sentence order. [ 66 ] The final point I must consider is whether serving the sentence in the community, in Mr.

Harrison's case, would be consistent with the fundamental purpose and principles of sentencing to which I have just referred. [ 67 ] The Supreme Court of Canada in Proulx said that serious consideration should be given to the imposition of a conditional sentence. In all cases where the first three prerequisites are satisfied, a conditional sentence may be an option to consider. In fact, at

paragraph 90 of that decision, the court said it would be an error in principle not to consider the possibility of a conditional sentence seriously when the statutory prerequisites are met. The court in Proulx further stated that a conditional sentence can meet the objectives of denunciation and deterrence. Further, a conditional sentence may be imposed even in cases where there are aggravating circumstances relating to the offence or the offender. [ 68 ] Many sentencing decisions have noted that the imposition of a conditional sentence is not necessarily less onerous than a period of real jail.

It has also been noted that the terms of conditional sentence orders are generally longer in duration than the real jail term that may be given. Moreover, it should be noted that with a conditional sentence the parole and/or remission provisions applied by the corrections services do not apply.

Further, the ramifications arising from the breach of the conditions of a conditional sentence order can be significant. [ 69 ] Several recent cases have summarized the principles that apply in fashioning a fit sentence for offenders in various cases, and they certainly apply to the case of offenders in riot-related cases: 1. There is no presumption for or against a conditional sentence. 2. It is an error for a sentencing judge to be guided by the belief that conditional sentences for riot-related cases cannot have a general-deterrent effect. 3.

It is an error for a sentencing judge to not have due regard for the personal circumstances of the offender when crafting a sentence, even when that sentence is focused primarily on general deterrence. 4. Generally the goals of denunciation and general deterrence will require incarceration, even for first-time offenders, if there are aggravating factors such as inciting others or engaging in additional criminal acts such as assault, arson, wearing a mask, or committing multiple criminal acts in multiple locations. 5.

Where a conditional sentence has been deemed appropriate in other sentencing cases, it appears that there have often been significant mitigating circumstances. The sentence in this case [ 70 ] In arriving at my decision about a fit sentence for Mr. Harrison, in addition to the cases provided by the parties and the other cases cited, I have also had the benefit of a recently-issued decision of our Court of Appeal, R. v. Carrillo , 2015 BCCA 192 . This is a case that was just released on April 29, 2015. [ 71 ] The offender in that case pled guilty, I believe, to possession of cocaine for the purpose of trafficking.

The parties acknowledged he was a mid-level trafficker. He was a refugee from Colombia who had significant medical conditions, including depression, post-traumatic stress disorder, anxiety, and agoraphobia. The sentencing judge decided there were exceptional circumstances and suspended the passing of sentence and placed the offender on probation for two years with strict conditions. The Crown appealed.

It argued that the sentencing judge misapprehended the facts and, further, that the sentence was unfit as it was a marked departure from the range of sentences typically imposed for offences of that nature. [ 72 ] The court found there was no misapprehension of the facts, and instead focused on the central issue which was whether the judge erred by imposing an unfit sentence in the absence of exceptional circumstances. [ 73 ] I appreciate that the issue before me in Mr. Harrison's case does not involve a situation where the sentence being suggested by the parties is outside the range.

The issue before me, as I have already noted, is whether a conditional sentence order is appropriate and the length of that conditional sentence order. Nevertheless, the comments made by our Court of Appeal in Carrillo are instructive. Those comments are: It is . . . important to acknowledge that deciding a fit sentence is not a science; there may not be a "single appropriate sentence for a similar offender and a similar crime" . . . A judge may impose a sentence outside the identifiable range where there is a justifiable case- specific basis for doing so . . . . . .

"while the range of sentences emerging from earlier cases provides guidance, it is not conclusive of an appropriate sentence in a given case" . . . "Only substantial disparity that cannot be justified by reference to differences in offenders and the circumstances of their offences will lead to appellate intervention" . . . . . . sentencing is a "profoundly contextual" process particularly suited to the sentencing judge . . .

The sentencing judge hears the submissions at first instance, gauges the relevant factors, and assimilates impressions that can be difficult to articulate such as the sincerity of expressions of remorse, and whether there is a real possibility of rehabilitation and genuine motivation for it. These factors may support "a justifiable case-specific basis" for imposing a sentence outside the identifiable range . . . . . . . . . even the presence of exceptional circumstances [however] does not justify an unfit sentence.

A sentence that falls outside the range can . . . must . . . accord with the principles and objectives of sentencing. (Excerpts from paras 31 to 34.) [ 74 ] In this case, after considering the nature of the two offences to which Mr. Harrison pled guilty, that is participation in a riot and an assault, the circumstances surrounding the commission of the offences, as well as Mr. Harrison's circumstances (in particular his

personal history and his mental health issues), and the principles and purpose of sentencing, I have concluded it would not be contrary to the principles and purposes of sentencing to have Mr. Harrison serve his sentence in the community under a conditional sentence order. Accordingly, I impose a conditional sentence on Mr. Harrison. [ 75 ] I now pause so he and his mother can take a deep breath, and so counsel can do some more work. I would like to hear brief submissions from counsel on the length of the conditional sentence order. I know you have made some reference to it, Mr. Baker, but Mr.

Flannigan has not, given the position he took that only a jail sentence was appropriate. I also want some guidance from counsel as to the appropriate conditions. One of the conditions I am considering is a Rogers -type order, given what has been said by the psychologist. However, I do not wish to spring that on you.

I know it is late in the day and we want to get on with this, but we can take a brief break if you like. [SUBMISSIONS BY COUNSEL FROM 3:56:07 TO 4:02:30 P.M.] (PROCEEDINGS ADJOURNED) (PROCEEDINGS RECONVENED) [SUBMISSIONS BY COUNSEL CONTINUING FROM 4:07:22 TO 4:19:25 P.M.] [ 76 ] THE COURT: As I said a few minutes ago, my main concern in sentencing you and the objectives I am focusing on are: to denounce your unlawful conduct, what you did was terrible; to deter you from committing further offences; and also general deterrence, to deter others who might come to hear of this case from committing offences. [ 77 ] However, having recognized the importance of those objectives, in your case, given your youth and your background circumstances rehabilitation takes on added significance.

If, through this order and actions you take to comply with the order, you are able to deal with some of the problems you face, that is the best possible result that I as a judge and that society can expect from you. That result will mean the justice system has done what it is meant to do, which is to deal with offending behaviour in such a way that the offender is rehabilitated. [ 78 ] I will go over the conditions very briefly and the length of the conditional sentence order. Your lawyer will tell you this, but I want to emphasize this is a jail sentence.

Judges do not live in a bubble, we do go out, we go to parties, we are at grocery store lineups. I hear of people in the community who are upset about these "terrible criminals" who are out wandering free in the community. I do not comment, for obvious reasons, but I am aware there are people in Greater Vancouver and elsewhere who are very concerned about conditional sentence orders. [ 79 ] I do not want to put the responsibility for those views on your shoulders. Please do not misunderstand what I am saying to you. However, a conditional sentence order is not a walk in the park.

It is a jail sentence served in the community. If you are caught breaching that sentence by not complying with the conditions, you will be brought back before me. In that case one of the decisions I will have to make is what to do? One of the options I have is to terminate the conditional sentence order and have you serve the remaining term, or a portion thereof, in jail. As I said earlier, I am not going to speculate on that because my hope is that I will never see you again.

However, you need to understand the consequences of a breach of your conditional sentence order. [ 80 ] Given the nature of the two offences, I am going to impose a conditional sentence order of nine months -- six months for participation in the riot and three months consecutive for the assault. [ 81 ] The conditions of that conditional sentence order are going to be the same and they are going to be as follows: 1) You must keep the peace and be of good behaviour. 2) You must appear before the court when required to do so. 3) You must report to a conditional sentence supervisor (who I will refer to as "the supervisor") in person no later than Friday, May 8th, at 3:00 p.m.

That gives you a few days, I do not know what your

schedule is. That reporting is at 275 East Cordova Street in the City of Vancouver, Province of British Columbia, and thereafter as directed by the supervisor. Mr. Baker will tell you that you can have the file transferred to another location, to a supervisor in a different location, but for the first reporting you have to go to the office on Cordova Street. 4) You must remain within the jurisdiction of the court, that means British Columbia, unless written permission to go outside the jurisdiction is obtained from the court or the supervisor.

If you are planning a vacation out of the province, you would have to get permission. 5) You must notify the court or the supervisor in advance of any change of name, address, employment, or occupation. 6) You must reside at Apartment 206, 980 West 22nd Avenue, Vancouver, British Columbia, and not change that address without the prior written approval of the supervisor. 7) During the first three months of this conditional sentence, you must remain inside your residence or on any deck or balconies at all hours, except for the following: while you are at your employment or travelling directly to and from that employment; while attending your supervisor's office for scheduled appointments; while attending counselling sessions as directed by the supervisor or when travelling directly to and from such sessions, provided these absences have been pre-arranged with the supervisor.

I will explain what that means. Because you are working shift work, et cetera, this means you have to provide the supervisor with your work schedule.

[ 82 ] THE ACCUSED: Mm-hmm. [ 83 ] THE COURT: In advance. [ 84 ] THE ACCUSED: And every time I do overtime, obviously -- [ 85 ] THE COURT: Well, if you -- you can come to some arrangement with the supervisor. I do not know what you will do with overtime. [ 86 ] THE ACCUSED: Okay. [ 87 ] THE COURT: If it is something that is regular, you can discuss it. If worst comes to worst, you can always come back to court and apply to amend the order. I have said provided your absences from your residence are pre-arranged.

I am trying to leave it flexible, so the supervisor can exercise some discretion. [ 88 ] THE ACCUSED: Okay. [ 89 ] THE COURT: During the first three months of this conditional sentence order, you may also be absent from your residence as follows: For three hours, as arranged with your supervisor. Now, is a Saturday suitable for doing your personal chores or would you prefer another day? [ 90 ] THE ACCUSED: Saturday would be -- [ 91 ] THE COURT: All right, every Saturday for the purpose of attending to banking, grocery shopping, and other personal matters.

So you can arrange with your supervisor when the three hours will be used, whether it be morning or afternoon. [ 92 ] The second exception will be when attending to medical emergencies involving you or your immediate family. [ 93 ] I am going to give some discretion to the supervisor by adding a further exception - for any other purpose approved of in writing by the supervisor, which permission must be carried on your person at all times when you are out of your residence. [ 94 ] So if something comes up, for example there may be a course, let us say, for work, or a course involving some training with the union, because I understand that you were doing some training with them.

Those are the kinds of things that are good for your rehabilitation. So the supervisor can approve that kind of absence. Other than those exceptions, it basically means you are on house arrest. I know you are going to miss some of the summer and I am sorry about that, but that is what is going to happen. [ 95 ] Then during Months 4 to 6 inclusive of this sentence -- now, if you are working evenings, what time is the earliest that you get in? [ 96 ] THE ACCUSED: The earliest that I would be off? [ 97 ] THE COURT: Or the latest, I am sorry.

If you are working evenings? [ 98 ] THE ACCUSED: It used to be sometimes in the middle of the night, to like -- but I can tell my employer that I'm not longer able to do overtime. [ 99 ] THE COURT: No, I do not want you to do that, so let us do it this way: 8) During Months 4 to 6 inclusive of this sentence, you must not be outside your residence between the hours of 10:00 p.m. and 6:00 a.m. daily, except for medical emergencies or with the written permission of your supervisor, which permission must be carried on your person at all times when you are out of the residence during those hours.

Such permission may relate to your attendance at work, if working shift work. That way there may be times when you will not have a full curfew, in essence, because you have gotten permission from your supervisors because you are working night shift.

Is that clear? 9) For the last three months of your conditional sentence order, you will not be subject to any curfew. 10) During the first six months of this order, you are to promptly present yourself at the front door of your residence at the request of a peace officer, probation officer, or supervisor who is attending to confirm your compliance with the above-noted curfew. 11) You must carry a copy of these conditions on your person at all times that you are outside your residence, and provide it to a peace officer, probation officer, or supervisor if so requested. 12) You are to take all reasonable steps to maintain employment and, upon request, you are to provide your supervisor with written confirmation of your employment status and/or your attempts to obtain employment and/or your employment schedule. 13) You must take, attend, and complete such counselling as directed by the supervisor.

I am not ordering any community work service hours. 14) You are not to possess or consume any alcohol or any substances that are listed in the Controlled Drugs and Substances Act or the Food and Drug Act , unless you are in possession of a lawful prescription from a medical doctor or a dentist in your name. 15) At the direction of your probation officer or supervisor, you will attend upon your family physician, whose name must be provided to your probation officer or supervisor, for medical counselling and treatment, except that you are not required to submit to any treatment or medication to which you do not consent, but if you do not consent to any treatment or medication, you must immediately notify your probation officer or supervisor.

You shall provide your treating physician with a copy of this order and you shall instruct your treating

physician that if you fail to take your medications or keep your appointments, he/she is to advise your probation officer or supervisor immediately. If you change physicians, you must provide your probation officer or supervisor with the name of your new physician immediately upon changing your physician. [ 100 ] As to the ancillary conditions, given the circumstances, I am satisfied this is a case where I should impose a weapons prohibition. However, given the circumstances of the offence and the fact there was participation in a riot and an assault, I am going to order that a DNA sample be taken.

You must make arrangements - you must attend. We have to find out the dates. Madam Registrar, I do not have a copy of the address. It is not here on the bench. I do not know the address, I am sorry, it is not here. The only thing you can do -- Mr. Sheriff, can you go to one of the other courts and see if there is a copy? Sorry, because you have to go at certain hours. [ 101 ] With respect to the probation order, I am going to impose a probation order to follow your conditional sentence order for a period of 18 months.

The conditions on that probation order are going to be the following: [ 102 ] You must keep the peace and be of good behaviour. [ 103 ] You must appear before the court when required to do so. [ 104 ] You must report to a probation officer on the first business day after the end of your conditional sentence order at 275 East Cordova Street in the City of Vancouver, Province of British Columbia.

You must report in person and thereafter as directed by your probation officer. [ 105 ] You must remain within the jurisdiction of the court, unless permission to go outside the jurisdiction (it does not have to be written permission) is granted by the court or the probation officer. [ 106 ] You must notify the court or your probation officer in advance of any change of name, address, employment, or occupation. [ 107 ] You must provide your probation officer with your current residential address at that time, and not change that address without providing written notification to the probation officer. [ 108 ] You must take, attend, and complete such counselling as directed by your probation officer. [ 109 ] If you are not working, you must take all reasonable steps to maintain employment and, upon request, you are to provide your probation officer with written confirmation of your employment status and/or your attempts to obtain employment. [ 110 ] I am going to put the same Rogers order on the probation order as is in the conditional sentence order, the same wording. [ 111 ] MR.

BAKER: Thank you, Your Honour. Will Your Honour hear me on the length of the probation order? [ 112 ] THE COURT: I am sorry, 18 months. [ 113 ] MR. BAKER: Would Your Honour consider hearing me on that? [ 114 ] THE COURT: Oh, I am sorry. [ 115 ] MR. BAKER: Yeah. [ 116 ] THE COURT: I said 18 months, but I will hear you. You may be able to change my mind. [ 117 ] MR. BAKER: Well, I thought I'd try. I hadn't mentioned what I thought. [ 118 ] THE COURT: Yes. [ 119 ] MR.

BAKER: My respectful view, Your Honour, would be that a 12-month order would be appropriate, and the reason for that is the -- really, this young man's age, the -- if you put that together, the nine months and the 18 months, we're into -- well, we're well over two years of reporting, and being on these orders. My respectful view, that's a very long time, he'll -- I'm just -- I just think that that's too long. I think that the purposes of the order, that is to ensure that he accepts responsibility for what's occurred and that he is -- his rehabilitation is effected, can easily be effected within 12 months.

So it's my respectful view that an 18-month order is not necessary and that's sufficient. [ 120 ] THE COURT: Let me tell you my thoughts. I am telling you this so that if you have submissions to make, you can make them. I am sorry that I did not give you the opportunity to address this in advance. [ 121 ] MR. BAKER: You did, I just didn't say -- you gave me the opportunity, I didn't say it. [ 122 ] THE COURT: No, no, but in advance -- [ 123 ] MR. BAKER: Yes. [ 124 ] THE COURT: -- of saying what I thought I was going to do.

My concern here is given what I have read in the pre-sentence report and in the psychologist's report, I think Mr. Harrison needs some support. His mother has done her best, she has done the best she could, but he needs some support. He is a very intelligent young man, and I think with proper guidance and proper supports in the community, he will do well.

[ 125 ] I believe although I do not know this, that this whole experience will motivate him to do the best he can. It cannot be a pleasant experience for a young man his age to have gone through this process. That is the reason I was going to impose a probation order for the 18 months, altogether that would be (18 plus nine is 27) two years and three months. [ 126 ] I am not doing so for punitive reasons. I am doing so because I think it will help him. One of the things that may be available to him, depending on how well he is doing, is to apply for the period of the probation order to be reduced.

I would certainly be amenable to considering that. I think the Crown would too. If he is doing well and does not need the community supports, that is fabulous. [Discussion on several issues with both counsel which resulted in clarifying:

a) The sentence length - a global sentence of 9 months was imposed to prevent confusion and to ensure ease of reporting.

b) Clarification of conditions.

c) Waived victim fine surcharge.] (REASONS FOR SENTENCE CONCLUDED)