R. v. X Accused Date:, 2013 BCPC 209

Citation: R. v. X Accused Date: 20130604 2013 BCPC 0209 File No: 22586-1-V Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. X ACCUSED REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. O'C WINGHAM Counsel for the Crown: Patti Tomasson Counsel for the Defendant: Robert J. Gunnell Place of Hearing: Vancouver , B.C. Dates of Hearing: January 7 and 11, 2013 Date of Judgment: June 4, 2013

Introduction [1] X Accused has pled guilty to participating in a riot and to one count of arson (intentionally or recklessly causing damage by fireor explosion) to a police car owned by the City of Vancouver. [2] At the time of the commission of these offences the accused was a young person within the meaning of the Youth CriminalJustice Act (YCJA) and this sentencing has proceeded under that Act. CIRCUMSTANCES [3] The offences occurred on the evening of June 15, 2011. The Vancouver Canucks had just lost game 7 of the Stanley Cup finalseries to the Boston Bruins.

A riot in the downtown core ensued and lasted from approximately 7:30 pm to 12:30 am. Context of the Riot [4] In its written submissions concerning the facts the Crown set out the context of the riot generally. The case law provided bythe Crown makes it clear that the context of the riot is a factor for the Court to consider in understanding the factual background to theoffences before it (R. v. Dickinson 2012 BCPC 40 , [2012] BCJ No. 314; R. v. Yates 2012 BCPC 250 , 2012 BCPC0250; R. v. Alviar 2012 BCPC 181 , [2012] B.C.J. No. 1179 and R. v.

S.P.G. 2012 BCPC 312 , 2012 BCPC 0312). [5] The Crown submissions (which are not contested) as to the context of the riot disclose the following: - On the night of the riot there were 1035 Emergency personnel in the downtown core consisting of 928 police, 63 members of theVancouver Fire and Rescue and 44 Ambulance personnel. - There was approximately 155,000 people downtown. - There were more 911 calls in the 4 hours after the hockey game ended than there had ever been in a 24 hour period. At one point 92calls to 911 were on hold. - There were 150 emergency room visits at St.

Paul’s Hospital, between 6 pm June 15 and 6 am June 16 (compared to 15 atVancouver General Hospital). - There were 26 arsons, 193 mischiefs, 26 break and enters and 52 assaults (including 18 against civilians and 32 against policeofficers) - In the course of the riot 112 businesses were damaged, 122 vehicles were damaged or destroyed (93 civilian, 15 business and 24emergency vehicles) - The total estimated monetary loss from the riot was $3,778,190.59 [6] The context of the riot as outlined by the Crown and the video and other material filed by the Crown at this sentencing hearing,show that on the night of the riot the downtown core of the City of Vancouver was subjected to hours of lawlessness, violence, anddestruction of property by a mob of people who ran amok in the downtown area overturning vehicles, breaking into businesses, looting,terrorizing store employees and assaulting citizens and police officers.

Judge St. Pierre, in the S.P.G. case described the context of theriot at paragraphs 17 -19: [17] I will add a few comments, however. A riot is really one of the highest forms of civil disorder. Organized or disorganized groups,they lash out in a sudden, intense rash of violence, and it is against innocent civilians, police in this case, emergency personnel, privateproperty, public property.

The apparent irony, at least in this case, I find it, is that after watching the videos relating to the rioting thatwere shown in the sentencing processes, there is no air of anger or the sense of long-held grievances boiling over in a political context, asthere often is in this kind of behaviour. Here there really appeared to be a mob that was simply fuelled by alcohol, and generallyeuphoric is the characterization that seems to come to mind. [18] There were people, most of the people laughing and shouting with glee as property was destroyed and looting took place all aroundthem.

It was the kind of behaviour that humans, with their capacity normally to make reasoned judgments, are and should be extremelyashamed of. [19] There is a collective responsibility among members of these kind of mobs, and that responsibility runs from the person who simplyrefuses to leave the area to the person who recklessly hurls objects at the police or assaults good Samaritans, or sets property on fire orloots. Each participant bears their responsibility, and that is confirmed as much in the case law. Accused’s Involvement [7] The Crown introduced video evidence at the sentencing hearing.

It clearly shows that X Accused participated in the riot at two

different locations, at the Live Site (around the Public Library) and at a parking lot on Cambie Street, one block north of the Live Site. [ 8 ] On the date of the riot the accused was living in (redacted) with his parents. He came into Vancouver to watch the game. Although his friends left after the game ended the accused stayed at the Live Site for an hour after the riot started. [ 9 ] The riot started when a Versa automobile was turned over and set on fire. The accused took photos of the Versa being damaged and subsequently watched the police and firefighters respond.

A GMC truck was damaged, flipped over and set on fire. The accused did not participate in its destruction but posed for pictures in front of it as it burned. [ 10 ] After the GMC was set on fire the police made efforts to disperse the crowd by directing the crowd to leave or risk arrest, by forming police lines to attempt to push the crowd back, by using police horses and by deploying blast balls/flash bangs. [ 11 ] The video showed by the Crown depicted the crowd becoming more confrontational.

It also showed the accused adding fuel (consisting of paper, cloth and Canucks posters) to fires burning in four different garbage bins. In one scene a police blast ball detonated next to the accused. He put his hands to his ears and ran south. [ 12 ] The accused went to a parking lot about one block from the Live Site. It was there where he participated in the destruction of a police car. The video shows that he made a number of attempts to light a police vehicle on fire until eventually it was burned.

He is seen in the video attempting to light a fire in the trunk area, trying to light a rag hanging out of the gas tank, trying to push the lit rag further into the gas tank, lighting pieces of paper and putting them into a police vehicle on two occasions and lighting a piece of paper next to a second police car. [ 13 ] At one point he was pushed away by a Good Samaritan. He then went to a second police car, but the Good Samaritan again intervened. The accused then went back to the first vehicle and put the burning paper inside.

Viewing the video one can only describe his actions as deliberate and persistent in trying to set the police car on fire. When it did begin to burn, he was celebratory. He was clapping his hands above his head and was yelling, “Yeah, it’s lit, it’s gonna burn.” He was smiling, high fiving and shaking hands with another male in the crowd. [ 14 ] Within minutes both police cars were fully engulfed in flames.

Police officers arrived and the accused jumped over a fence and watched for a while before leaving. [ 15 ] The cost of replacing the police vehicle that the accused participated in burning was $50,000 in addition to the loss of the remaining capital on the destroyed vehicle ($33, 746.00) for a total of $83, 746.00). [ 16 ] The following day the accused and his family contacted the police to say that he wanted to turn himself in and to take responsibility for his actions. He says that he was told to call back in a couple of weeks but he and his family did not want to wait that long.

On June 18, 2011 he attended with his counsel at the Vancouver Police Station and gave a statement of his involvement. He also arranged, through his counsel, to obtain permission from the Court to make a public apology which was (redacted). Circumstances of the Accused [ 17 ] The accused is now 19 years of age. He was 7 weeks short of his 18 th birthday when these offences occurred. [ 18 ] He was raised in a stable family. He has an older brother and a younger sister. His father is a (redacted) and has his (redacted) in (redacted).

His mother is a (redacted), but has been a full-time mother and homemaker since the accused was born. [ 19 ] The accused has had the benefit of that upbringing and it has been demonstrated by his accomplishments. He has been involved in high performance sports since he was young. He is an accomplished (redacted). He was a member of the (redacted) team at the time of these offences, but he lost his position on the team as a result of these offences. He was suspended from training and playing in any (redacted) events in Canada by (redacted) for two years.

He had an opportunity to train with the National Senior Team and travel to the 2012 London Olympics had they qualified, but he lost that chance. [ 20 ] The accused has done well at school. He attended a private school in (redacted). He is described as having to work hard to achieve good grades and maintain his (redacted). The headmaster of the school told the youth probation officer that the accused was a member of the school soccer team and that he is a talented artist, and had achieved numerous awards.

He was an honour roll student, was captain of the (redacted) team and enjoyed the respect of his coach and the other players. He described the accused as a student who coached, refereed and acted as a mentor to younger students. Consequences [ 21 ] The accused has suffered a number of consequences as a result of his offences. In addition to being suspended by (redacted) Canada he lost a scholarship to assist him attending the University (redacted).

As a result, he went to a college in (redacted) where he could continue playing (redacted). [ 22 ] While he was there someone posted wanted posters around the campus which showed a picture of him and described him as an escaped arsonist, rioter and assaulter and described him as “Wanted by Millions of Canadians for Crimes Against Vancouver”.

He has also been the subject of negative social media commentary. [ 23 ] His father’s (redacted) had to be shut down for a number of days after he was publicly identified because of the number of negative and angry messages and emails which were received at the (redacted). [ 24 ] The accused has, however, had the support of his peers and the staff at his school. There are letters from his high school coach, the headmaster of his school, teachers, parents of his friends, and colleagues of his father. They are all supportive and speak of his good character.

He was to be the valedictorian at his high school graduation, but chose not to attend as he was concerned that his presence

would be a disruption or distraction to the proceedings. His fellow graduates left an empty chair for him at the ceremonies. [ 25 ] Since these offences the accused has voluntarily performed community work service including 68.5 hours for Salvation Army, 10 hours at the Living Room Drop-in Centre, 4 hours at the (redacted) Club and 1 ½ hours at his school. He did his first year of post secondary education at a college in (redacted) and just finished his second year at a college in the eastern United States. He has, as I have stated, made a public apology on television. He has made an apology in Court.

He was immediately remorseful for, and accepted responsibility for, his actions. Despite being vilified in the social media and by members of the public for his actions he has taken the appropriate steps to make amends while at the same time continuing with a productive life. Assessments [ 26 ] A pre-sentence report and 2 psychological assessments were prepared for the sentencing hearing. [ 27 ] Dr. Robert Ley, a registered psychologist, prepared a report dated October 16, 2011 at the request of the accused’s counsel. [ 28 ] Dr.

Patrick Bartel, a registered psychologist, prepared a report dated September 21, 2012. [ 29 ] Dr. Stevenson, a psychiatrist with youth forensic services, prepared a report at the request of Crown Counsel. That report is dated October 10, 2012. [ 30 ] At page 14 of Dr. Ley’s report he states: “...The first important question in this regard pertains to explaining how and why an otherwise well-adjusted young man like X Accused could behave in strikingly antisocial ways given that he is not an antisocial person, or was X Accused’s judgment impaired by alcohol and/or drugs.

Similar to most complex, anomalous actions that are atypical for an individual, there is rarely a singular explanation for unexpected, outlandish, irresponsible, and unlawful conduct. First, there are some general psychosocial phenomena that exerted an influence upon X Accused, namely the crowd phenomenon, whereby hundreds of young people were acting in highly destructive and violent ways with much of the aggression being focused upon police and symbols of their authority, such as police vehicles.

Numerous psychological studies attest to the powerful influence of a so-called “mob mentality” when otherwise normal individuals, in part because they experience a sense of anonymity as they conform their behaviour to that which they see around them. Certainly there were hundreds of people around X Accused in the riot who were acting in lawless, confronted by police, detained or arrested.

Additionally, by virtue of being immersed in a large crowd a sense of anonymity is conferred on individuals, such as X Accused, by virtue of their experience of invisibleness, whereby one can engage in activities with a sense of not being recognized or differentiated from the crowd (i.e., you blend into the masses). Although X Accused has been a rather mature and independent adolescent, there can be no doubt that he acted in antisocial ways similar to that which he saw around him. Another important explanation for X Accused’s misconduct, in my opinion, ironically relates to his strong achievement orientation.

In general, both as a person and as an elite athlete, X Accused strives to excel and to stand out amongst his peers. X Accused desires to be noticed as well to receive the approval and recognition of those around him. Unfortunately, in the social context of the Stanley Cup riot, there were far more individuals who were encouraging rioters to be aggressive, destructive and antagonistic towards the police and other authority figures.

X Accused shows excellent insight in realizing that he was seeking the approval and cheers from the crowd around him when he attempted to ignite the rag in the VPR car gas tank or when he threw a burning piece of paper into its driver’s area. During my interviews with him, X Accused vividly recalled the crowd exhorting him to “Light it up! Light it up! Light it up!” In short, and as X Accused astutely remarked “I wanted to be the guy they were cheering for.” [ 31 ] Dr.

Ley concluded at pages 18 – 19: “...Frankly, X Accused has coped remarkably well with the extreme stresses that he and his family have experienced. In no way does X Accused feel “hard done by” (my words) or undeserving of much of the mistreatment that he has received as he feels that he has brought it on himself. Given that X Accused has been very guilt-ridden about his antisocial behaviour in the riot, some of the punishment that he has received has been somewhat welcome paradoxically, as it has eased his conscience slightly.

X Accused has taken constructive steps through his volunteer work to try and make amends for his misconduct. I have some other suggestions in this regard. For example, I believe that X Accused would be an excellent candidate for speaking publicly to adolescent groups such as high school students and discussing his experience and misconduct in the riot, which would be very relevant to the kids of adolescent peer pressures towards conformity that adolescents routinely experience.

X Accused has all of the requisite skills to be an excellent public speaker, and by addressing high school groups he can make further amends for his wrongdoing. Although X Accused does not need any psychological treatment as he is fundamentally a well-adjusted young person, nonetheless, he would benefit from a few sessions of counselling that would be oriented towards assisting him in resolving some of his deep feelings of guilt and shame as well as towards developing further understanding of the dynamic factors that caused him to act in such an atypical, antisocial fashion.

In the event that X Accused is criminally charged for his unlawful behaviour in the riot, from a risk and rehabilitation standpoint, as well as from a psychological perspective, X Accused represents an excellent candidate for some sort of diversionary process, alternative or creative sentencing strategy, or community-based disposition. Certainly there is no doubt that he does not represent any kind of risk to the public, and in fact, as I have suggested above, there are numerous ways, in which X Accused can provide a public service and a constructive remedy for his past misconduct in the riot.” [ 32 ] Dr.

Stevenson prepared a psychiatric report which was referred to in Dr. Bartel’s report. In that report Dr. Stevenson stated:

“...X Accused is a nineteen-year-old male without any prior antisocial or illegal behaviour who, at the age of seventeen participated in a public riot during which he engaged in several acts of vandalism and arson. This assessment does not provide any evidence of a major psychiatric disorder, nor of a problematic developmental or family history. Indeed, he has had a history of academic and athletic success, albeit at the possible expense of deeper social and relationship experiences. There is no evidence from this assessment that he has pyromania.

Instead, his crimes appear to reflect momentary and impulsive poor judgement, likely reflecting a still-evolving moral and ethical system, but uncharacteristic of a young person who has otherwise led a fairly exemplary and prosocial life. It is clearly and solely within the discretion of the Court how best to legally deal with this young man’s offences.

However, the several and potentially enduring consequences X Accused has already experienced, together with his apparently genuine regret, remorse, and acceptance of responsibility, as well as the lack of prior antisocial or illegal activity, and the ongoing pro-active and prosocial attitude and behaviours he is demonstrating, may persuade the Court that both the punitive and rehabilitative elements appropriate to his crimes have already been satisfied...” [ 33 ] Dr.

Bartel’s assessment and recommendations are contained on pages 5 – 6 of his report: “...X Accused is a nineteen-year-old youth who is awaiting sentencing on charges in connection with his involvement with the Stanley Cup riots in June of 2011. Results of the present assessment found no evidence of any form of psychological disorder or disturbance including depression, anxiety, psychosis or Conduct disorder. Nor is there any evidence of a personality disorder. Of some minor concern is X Accused’s self-reported history of alcohol abuse and to a lesser extent, marijuana abuse.

Even with this concern, however, it is important to note that X Accused’s level of substance use is within normative range for late adolescence. On the issue of risk, X Accused presents as low risk for both property and violence-oriented offences.

His low risk is indicated by a general absence of risk factors (i.e. history of criminality, peer delinquency)...” Crown’s Position [ 34 ] The Crown submits that an appropriate sentence in this case is a 6 month Deferred Custody and Supervision Order followed by an 18 month Intensive Support and Supervision Order which would include a requirement that the accused perform 150 hours of community work. [ 35 ] The Crown says that the nature of the offences (arson and participating in a riot) together with the aggravating circumstances of this case, make this case an “exceptional case” within the meaning of s. 39(1) (

d) of the YCJA and, therefore, the gateway to custody is open. [ 36 ] Counsel for the young person says that the gateway to custody is not open in this case. He says that even if I were to determine that it was open, the accused’s background, otherwise good character and his actions since the offences occurred make a custodial sentence (including a Deferred Custody Order) inappropriate. [ 37 ] Counsel for the young person suggests, relying on s. 4(

c) of the YCJA , that given the accused’s lack of a criminal record and the non-violent nature of the offences, there is a presumption that extrajudicial measures are adequate to hold the accused accountable and that a judicial reprimand may be adequate. He says that if I determine that a reprimand is not be adequate then a discharge with conditions would be appropriate. Youth Criminal Justice Act [ 38 ]

Section 38 of the YCJA sets out the purpose and principles of sentencing young persons under that Act . That

section provides: 38.

(1) The purpose of sentencing under

section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in

section 3 and the following principles: (

a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances; (

b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances; (

c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence; (

d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons;

(

e) subject to paragraph ( c ), the sentence must (

i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1), (ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and (iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community.

(3) In determining a youth sentence, the youth justice court shall take into account (

a) the degree of participation by the young person in the commission of the offence; (

b) the harm done to victims and whether it was intentional or reasonably foreseeable;

c) any reparation made by the young person to the victim or the community; (

d) the time spent in detention by the young person as a result of the offence; (

e) the previous findings of guilt of the young person; and (

f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section. [ 39 ]

Section 3 of the YCJA sets out the principles which apply to that Act . It reads, in part: 3.

(1) The following principles apply in this Act: (

a) the youth criminal justice system is intended to protect the public by (

i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person, (ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and (iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour; (

b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following: (

i) rehabilitation and reintegration, (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity, (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected, (iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and (

v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time; (

c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should (

i) reinforce respect for societal values, (ii) encourage the repair of harm done to victims and the community, (iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person’s rehabilitation and reintegration....

Section 39 YCJA [ 40 ] Section 39(1) of the YCJA provides that a youth justice court shall not commit a young person to custody under

section 42 unless the young person falls into one of the categories set out in that section. These are often referred to as the “gateways to custody”. The Crown relies on section 39(1)(

d) which provides that a youth can be committed to custody in “exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in

section 38”.

[41] In R. v. R.E.W. (ON CA), [2006] O.J. No. 265 the Ontario Court of Appeal considered the application of s.39(1) (

d) of the YCJA. At paragraphs 30-31 Rosenberg, JA wrote: 30 Parliament rarely uses the term “exceptional” in criminal legislation. I have found the term used only six times in the Criminal Code.1 The term “exceptional” is used only twice in the YCJA: first, it appears in s. 39(1)(

d) and second, it appears in s. 39(9) whichrequires the judge to explain in the reasons why the case is an exceptional case under para. (d). 31 The theme that runs through use of the term “exceptional” in both criminal case law and legislation, is that it is intended todescribe the clearest of cases. Such cases include those where applying the normal rules would undermine the purpose of the legislation,where the exercise of the unusual power is necessary or required, and where the exercise of the unusual jurisdiction is capable ofexplanation. The wording of s. 39(1)(

d) is consistent with this approach. The exceptional power to commit a young person to custody isreserved for those circumstances where, in effect, any other order would undermine the purpose and principles of sentencing set out in s.38. The analysis of s. 39(1)(

d) must be set against the background of s. 38, which stresses the importance of interfering with a youngperson’s liberty as little as possible. For example, s. 38(2)(

d) states that youth justice courts should consider “all available sanctionsother than custody that are reasonable in the circumstances”. Section 39(2)(

e) further directs that youth court justices should apply the“least restrictive sentence” and “the [sentence] most likely to rehabilitate the young person”. [42] The Court noted, at paragraph 40 that section 39(1) (

d) is focused solely on the circumstances of the offence, and not thecharacter or history of the offender. The Court stated that the “circumstances of the offence must be so aggravating that nothing less thancustody will vindicate the purpose and principles of sentencing set out in s. 38.” At paragraph 43 – 45 the Court stated: 43 The scheme of the YCJA suggests that the exceptional case gateway can only be utilized in those very rare cases where thecircumstances of the crime are so extreme that anything less than custody would fail to reflect societal values.

It seems to me that oneexample of an exceptional case is when the circumstances of the offence are shocking to the community. (vi) Conclusion on the

interpretation of s. 39(1)(d) 44 I draw the following conclusions respecting the

interpretation of s. 39(1)(d): * The object and scheme of the YCJA and Parliament's intention indicate that the Act was designed to reduce the over-reliance oncustodial sentences that was the experience under the YOA. See R. v. C.D.; R. v. C.D.K, supra, at para. 50. * An expansive definition of “exceptional cases” would frustrate Parliament's intention to reduce the over-reliance on custodialsentences. * Section 39(1)(

d) can be invoked only because of the circumstances of the offence, not the circumstances of the offender, or theoffender’s history. * Exceptional cases are those where any order other than custody would undermine the purposes and principles of sentencing set out ins. 38. Put another way, s. 39(1)(

d) is intended to describe the rare non-violent cases where applying the general rule against a custodialdisposition would undermine the purpose of the YCJA. * Exceptional cases are limited to the clearest of cases where a custodial disposition is obviously the only disposition that can bejustified. * One example, of an exceptional case is a case where the circumstances are so shocking as to threaten widely-shared communityvalues. 45 In general, I agree with Harris J.’s commentary in the Youth Criminal Justice Act Manual, looseleaf (Aurora, ON: Canada LawBook Inc., 2005) at 4-17: Presumably the offence that would trigger the use of custody under this subsection would be so exceptionally aggravated that custodywas the only proportionate consequence that would hold the youth accountable through the imposition of just sanctions, therebycontributing to the long-term protection of the public. [43] In R. v.

J.E.C. 2004 BCSC 1341 , [2004] B.C.J. No. 2244 (BCSC) Taylor, J. noted that it is the circumstances of theoffence itself which makes the previous history of the offender unnecessary when sentencing under s. 39(1) (d). At paragraph 64, henoted that subsection (

d) seeks to introduce a sense of proportionality in exceptional cases where the circumstances of the offence are soaggravating that they outweigh what otherwise would be relevant considerations such as the offender’s background or other forms ofdisposition. [44] In R.E.W. the Court considered a case where the accused young person was an accessory after the fact to a murder. He assistedin the disposal of the victim’s remains and disposing of evidence. The Court undertook a four-step analysis in considering whether thatcase fell into the category of an exceptional case within the meaning of s. 39(1) (d).

It considered the objective gravity of the offence,the accused’s role in the offence, his moral culpability, and the impact of the offence on the community. In the circumstances of thatcase the Court determined that it was an exceptional case. S. 39(1) (

d) Analysis

Objective Gravity of the Offence [45] Arson and Participation in a Riot are serious offences. Arson carries a maximum penalty for adults of 14 years. Participating ina riot carries a maximum sentence of two years. The Accused’s Role [46] While it may be mystifying to those who are familiar with the accused’s upbringing and background, he played an active role inthe riot and in the destruction of at least one of the police cars. He can be seen on video initially watching and taking videos of theburning Versa, and posing for pictures in front of the burning GMC.

He can then be seen throwing items into a garbage bin which had afire burning inside, fanning another garbage bin which had a fire burning inside and putting posters into another bin with a fire burning init. He then made his way to where two police cars were parked. Both video and still photos show him attempting to light a rag hangingout of the police car’s fuel tank. He then tried to stuff the rag further into the tank. He was then recorded making attempts to light paperon fire and throw it inside the police car.

Despite being stopped by a Good Samaritan he eventually succeeded in throwing someburning paper into the police car. His actions were persistent and deliberate. While it may be that the burning paper was not theeffective cause of the car going up in flames he clearly was involved and engaged with those who ultimately destroyed the police car. When the police car started to burn he can be seen clapping his hands over his head and yelling “it’s lit”, “it’s going to burn”. He wascelebrating. The Accused’s Moral Culpability [47] The accused was not simply a bystander who was urging or egging on others.

He was an active participant. He was not underthe influence of drugs or alcohol. He made a conscious choice to act the way that he did and to participate in the burning and destructionof the police car. Circumstances of the Offence/Impact on the Community [48] The impact of the riot on the community was severe. The factual context of the riot, referred to earlier in these reasons, makesthat clear. The video clips of the riot which I viewed were disturbing. The police, who were vastly outnumbered by the crowds, wereextremely limited in their ability to restore order and protect property. Judge Low, in R. v.

Yates 2012 BCPC 250 , 2012, BCPC0250 at paragraphs 11 – 12 described it this way: 11 I wish to comment on two things. First, although I have only been presented with short excerpts of the videos of the riot, it is anenormous understatement to describe the scene of mayhem and gross public disorder as shocking. The crowd was composed almostentirely of young men and women, like Mr.

Yates, who seemed to have completely lost sight of who they were, who the police were, andthat they were destroying the community and the neighbourhood of downtown Vancouver. 12 Second, it was enormously disturbing to see the crowd’s behaviour towards the Vancouver City Police. In all of the scenes Iviewed, the police were acting with the utmost restraint. I can only imagine how terrifying it must have been for them to be confrontedby such an enormous, howling mob of drunken young people.

It would have taken considerable courage for all of the police, firemen,and other emergency personnel to stand up to that malevolent crowd. Their conduct is a tribute to the high degree of theirprofessionalism which the entire City of Vancouver, and particularly the rioters themselves, should be grateful for. [49] The Crown in this case included in its Book of Documents impact statements from 2 Vancouver Police officers who were onduty. In a letter dated October 25, 2011 Staff Sgt. Ken Eng wrote, in part: ...Shortly after the end of the game, the first vehicle in the live site was flipped over.

A male with a box jumped on top of this vehicleand lit the box on fire which in turn ignited the car into flames. Sgts’ Dore, Chow, Van Patten and some of their members were withS/Sgt Boyle and myself on Hamilton Street to the east of the car fire. I made the decision not to approach the burning car as it was notsafe for the members to do so. I made the decision to advise the members to hold back and try to move the crowd out of the site. I calledfor additional units... Vancouver Fire had a truck on scene, but it did not have water capability.

As the car was now fully engulfed with flames, the crowd wasstanding up close to the vehicle and cheering. The vehicle could blow up at any second. I made the decision to have our members movein to back the crowd away from the fire. The second fire truck now arrived. We formed a perimeter around Vancouver Fire and movedinto the area to secure and safely have Vancouver Fire put out the fire. I requested PSU units to attend to our location to move thecrowd. As Vancouver Fire hosed the car down, I had the members hold and secure the area around the vehicle and again called forresources.

Once the fire was out, we held our ground, but the crowd continued to throw bottles and metal objects towards the police aswe tried to hold them back. The PSU Units had not arrived yet, so I ordered all of our members to retreat out of the area to assistVancouver Fire with moving out. We returned to the intersection of Georgia and Hamilton Street to hold the line. The crowd thenturned over another vehicle and another car fire was started. I ordered our members to move back in and escort Vancouver Fire back intothe area.

We moved people out of the way from both vehicles and the crowd continued to throw objects and challenge the police tofights while the fire was being extinguished. Smaller fires were now being set elsewhere in the site and windows were being smashed...

Sgt. Mark Sykes wrote: ... On the north east corner of Cambie St and W. Georgia St there was a large parking lot that had two marked police cars parked in thelot unoccupied. The crowd that faced us at this point was approximately 5000 persons and was very hostile. I asked for additionalresources, but Insp Rai advised that none were available and that he needed to take some of my resources. The crowd in the parking lotbegan to destroy the police vehicles. Within 10 minutes of the

Section halt at Cambie St and W. Georgia St. I noticed that the two unoccupied police vehicles in the parkinglot were set on fire by the crowd. As both vehicles began to burn I became concerned that they could explode, I was unsure what wouldhappen with the two vehicles on fire so close to each other. I could also see that there were hundreds of people all around the twovehicles, and that if the vehicles exploded the result would have been catastrophic. I made the decision to take the parking lot with far too few officers.

I realized that I was putting them in danger, but the risk of anexplosion to the public in my mind was far greater. As a result we advanced into the parking lot and set up a two sided perimeter aroundthe burning vehicles. Our cordon pushed the crowd at least 60 M away from the fire, and we used the last of our blast balls to accomplishthe task. I also directed Tactical support members to deploy smoke into the crowd. This cordon was spread so thin that I was very concerned about being overwhelmed given the size of the crowd, and that we were out ofblast balls.

I requested that a unit from the Vancouver Fire Department attend our location, but it was impossible at the time to get themto our location. [50] Letters from Detective Ryan Campbell outline the cost to the Vancouver Police Department (the “VPD”) of the loss of the twovehicles. The value new of each vehicle was $50,000. The cost to pay out the remaining capital on each vehicle was over $33,000.

TheVPD was without use of the vehicle for 5 months until it could be replaced. [51] In short, the offences which the accused participated in had a serious impact on the community of Vancouver as a whole and onthe VPD and its members who had to respond to the actions of the accused and persons like him during the course of the riot. [52] I conclude that the aggravating circumstances of these offences are such that the imposition of a non-custodial sentence wouldbe inconsistent with the purposes and principles of sentencing set out in s. 3 of the YCJA. S. 38(2) (a) – Adult Sentences [53] Section 38(2)(

a) of the YCJA directs that a youth sentence must not result in a punishment that is greater than the punishmentthat would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances. [54] The Crown has referred to a number of cases, both adult and youth, where participants in riots were sentenced. The relevantadult cases include: R. v. Loewen (1992) (BC CA), 75 C.C.C. (3d) 184 (BCCA). In this case the accused, aged 18, pled guilty to twocounts of mischief and one count of participating in a riot. He had no criminal record but was sentenced to 6 months jail. R. v.

Burkett (2012) (BCPC). In this case the 18 year old accused committed mischief to two vehicles. His actions included breakingthe window of one vehicle and attempting to overturn a second vehicle. The accused had no criminal record. He was sentenced to threemonths to be served under a Conditional Sentence Order and one year probation with 50 hours of community service. R. v. Kennedy Williams 2013 BCCA 115. In this case the Court of Appeal upheld a sentence of 90 days jail to be served intermittentlyfollowed by 15 months probation with 125 community work service.

The accused was 21 years old and had no criminal record. He hadparticipated in overturning a vehicle, taking the gas cap off the vehicle and trying to light it on fire. He also kicked in a window atCanada Post. The Court of Appeal, described his conduct as shockingly anti-social (at para. [11]). R. v. Epp, (2012) (BCPC). The accused in this case participated in overturning an unmarked police car and kicking it after it wasoverturned. The accused was 20 years old and did not have a criminal record. He was sentenced to 3 months to be served under a CSOand 9 months probation with 50 hours of community work service.

R. v. Dorosh, 2012 BCPC 370. The accused in this case was 18 years old and had no criminal record. He put a lit piece of paper in avehicle. Other rioters also put burning objects into the vehicle which was subsequently destroyed by fire. The accused also stole a pursefrom the Bay. He received a sentence of 4 months jail. R. v. Sawicki, 2012 BCPC 411. In this case the accused was an instigator who damaged a vehicle by kicking it and throwing items ontoit. He attempted to overturn another vehicle despite the presence of good Samaritans and police.

He threw two burning items into thefront seat of the second vehicle and tried to set it on fire. The accused was 19 years old and had no criminal record. He was sentenced toa 9 month Conditional Sentence Order followed by 15 months probation and 100 hours of community work service. [55] A review of these cases indicates that a deferred custody and supervision order in this case would not result in a punishmentthan that would be greater for an adult who has been convicted of the same offence committed in similar circumstances. S. 38(2) (b) – Youth Sentences [56] Section 38(2)(

b) of the YCJA directs that a youth sentence must be similar to the sentences imposed in the region on similaryoung persons found guilty of the same offence committed in similar circumstances.

[ 57 ] The following are some of the cases involving youth participations in riots are: R. v. S.P.G. 201 BCPC 312. In this case a seventeen year old youth was sentenced to an 18 month probation order which included the requirement that he perform 100 hours of community work service. The accused had kicked the back of a vehicle and hit another vehicle repeatedly with a skateboard. The accused had no record and was described as being of good character. R. v. B.G. 2012 BCPC. The accused was 17 years old and had no criminal record. She pled guilty to participating in a riot.

She entered London drugs twice and stole items. She was sentenced to an 18 month Intensive Support and Supervision Order and was required to perform 120 hours of community work service. R. v. J.G.M. 2012 BCPC. This accused was a 15 year old aboriginal youth with an unstable background and a youth record which included assault, theft and assault of a security officer. The accused pled guilty to participating in a riot. He had kicked windows at a bank and a store and hit a window at another store with a piece of a street barricade. He also struck the window of a vehicle with a street barricade.

He was sentenced to a 4 month Deferred Custody Order and 20 months probation with 125 hours of community work service. R. v. S.P.G. P. 2012 BCPC. In this case the accused pled guilty to participating in a riot and arson. He helped turn over a police car, threw fuel into a fire already burning in another vehicle and looted at the Bay and London Drugs. He had a youth record, a difficult upbringing and a serious alcohol problem. He was 16 years old at the time but was nearing his 17 th birthday. He had a minor youth record for breaches of his undertaking.

Judge Rae determined that the case was an exceptional case within the meaning of s. 39(1)(

d) of the YCJA and imposed a 6 month Deferred Custody and Supervision Order followed by 18 months probation. [ 58 ] There are always distinctions that can be found in sentencing cases. It is seldom that a case can be found to be identical in its facts or in the circumstances of the accused to the case that is before the Court. There are many similarities between the case a Bar and the S.P.G.P. case. Both cases involved pleas to participating in a riot and arson. In this case the accused has no criminal record. In S.P.G. P. the accused had only a minor record and no record at the time of the offences.

In both S.P.G.P. and the case at Bar both the offences and the participation of the accused were serious. The same can be said of the accused in the J.G.M. case. [ 59 ] I am satisfied that the imposition of a Deferred Custody Order in the circumstances of this case would meet the requirement in s. 38(2)(

b) that sentences for youth should be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances. Other Sentencing Principles [ 60 ] The degree of participation of this accused in the riot and in the destruction of the police vehicle was high. The accused was not simply caught up in the moment when he participated in the destruction of the police vehicle.

As I have observed, his actions were persistent, deliberate and celebratory. [ 61 ] His actions and the actions of others in the course of the riot caused a great deal of harm to the community. That harm was clearly foreseeable. [ 62 ] I have considered in reaching what I conclude is an appropriate sentence the actions of the accused since these offences. He has performed a substantial amount of community work on a voluntary basis. He has expressed remorse and offered a public apology almost immediately after the riot.

He has resumed a productive and law abiding life, despite the negative consequences he has already suffered. [ 63 ] I have also taken into account his lack of a criminal record and his previous good character. Those are all mitigating circumstances and affect the length of his sentence and some of the conditions which I will be imposing. Sentence [ 64 ] The Crown seeks a six month Deferred Custody and Supervision Order. I have concluded, however, that an appropriate sentence which will address the principles set out in

section 3 and 38 of the YCJA and which reflects what I would describe as the extra ordinary actions of the accused since the commission of these offences is a three month Deferred Custody and Supervision Order followed by a nine month probation order. I am mindful that the accused has been under the supervision of the Courts and subject to bail restrictions now for almost two years. This sentence will mean that he will be under the Court’s supervision for a further one year. [ 65 ] The terms of the Deferred Custody and Supervision Order are: 1. Keep the peace and be of good behaviour. 2.

Report to the provincial director and then be under the supervision of the provincial director. 3. Inform the provincial director immediately on being arrested or questioned by the police. 4. Report to a youth worker as instructed by the provincial director. 5.

Advise the provincial director of your residential address and report immediately to the provincial director any change in that address, any change in your normal occupation, including employment, vocational or educational training and volunteer work, any change in your family or financial situation and any change that may reasonably be expected to affect your ability to comply with the conditions of your sentence. 6.

Not own, possess or have the control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance, except as authorized in writing by the provincial director for the purposes of you participating in a program specified in the authorization. 7. You shall report by no later than 4pm on Tuesday June 4, 2013 to a youth worker at 800 Hornby Street, Vancouver, BC and thereafter

as and when directed by your Youth Worker. 8. You shall reside at a residence approved by your Youth Worker and you shall not change that residence without first obtaining the written consent of your Youth Worker. 9. You shall attend school or such other vocational or educational day program as directed by your Youth Worker, or seek and maintain employment to the satisfaction of your Youth Worker. 10. You are not to be outside of your place of residence between the hours of 10pm to 7am daily, and remain in your residence during those hours except with the written permission of your Youth Worker.

Such permission must be carried on your person and presented upon request to a peace officer, or a Youth Worker or his/her designate. 11. You shall comply with the rules and regulation of the Curfew Monitoring Program including, but not limited to, presenting yourself at the door of your residence and/or answering the phone when required to do so. 12. You shall attend, participate and complete any such counseling as directed by your Youth Worker. 13. You are not to be in the area of Vancouver, Province of British Columbia, bound by: (

a) Pender Street to the North, (

b) Davie Street to the South, (

c) Thurlow Street to the West, (

d) Abbott Street and Pacific Street to the East except for the purpose of attending your scheduled court appearance, meeting with your legal Counsel or your Youth Worker, or with the written permission of your Youth Worker obtained in advance. 14. You shall abstain from the possession and consumption of alcohol and non-prescription drugs. 15. You are not to possess any weapons as defined by the Criminal Code . 16. You shall complete 50 community work service hours to the satisfaction of your Youth Worker. 17.

You shall remain within the Province of British Columbia except with the written permission of your Youth Worker obtained in advance. [ 66 ] The Deferred Custody and Supervision Order will be followed by a probation order for a period of nine months. The conditions of probation are: 1. Keep the peace and be of good behaviour; 2. Appear before the youth justice court when and if required by the court to do so. 3. You shall report to your Youth Worker within 48 hours of the completion of your deferred custody and supervision order, and thereafter as and when directed by your Youth Worker. 4.

You shall reside at a residence approved of by your Youth Worker and you shall not change that residence without first obtaining the written consent of your Youth Worker. 5. You shall attend school or such other vocational or educational day program as directed by your Youth Worker, or seek and maintain employment to the satisfaction of your Youth Worker. 6. You shall complete 25 community work service hours to the satisfaction of your Youth Worker.

[ 67 ] I have not acceded to the Crown request for an Intensive Support and Supervision Order. I am not satisfied that that level of supervision is required for this accused once he has completed the Deferred Custody and Supervision order. I have ordered 75 hours of community work service. The number of hours would have been much higher but for the fact that this accused has voluntarily performed a significant number of hours since the date of these offences. _________________________________ The Honourable Judge J. O’C. Wingham Provincial Court of British Columbia