R. v. S.P.G. Date:, 2012 BCPC 312

Citation: R. v. S.P.G. Date: 20120822 2012 BCPC 0312 File No: 22595-1-V Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. S.P.G. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE ST. PIERRE Counsel for the Crown: R. Sinclair Counsel for the Defendant: R. Roesch Place of Hearing: Vancouver , B.C. Date of Hearing: August 22, 2012 Date of Judgment: August 22, 2012

[ 1 ] THE COURT: Yes, okay, so it is not going to be eloquent, but it will be finished with, and one of the principles in the Youth Criminal Justice Act is that matters in this jurisdiction with respect to dealing with youth should be dealt with swiftly. They often are not, but there is obvious reasons why that is important, including a whole host of social research that lends us to believe that, with young people, young men like Mr.

G., the closer in time that consequences can follow from certain actions, then the more understandable to them those consequences will be. [ 2 ] Unfortunately we are already now well over a year after the event. In any event, Mr. G. has pled guilty to that on June 15th, 2011, in Vancouver, he took

part in a riot, and that is contrary to s. 65 of the Criminal Code . [ 3 ] That day will be familiar to many, because on that day, June 15th, 2011, was what we have now come to refer as the Stanley Cup riots in Vancouver, or second Stanley Cup riot. On that day, the Vancouver Canucks were unsuccessful in their bid for their first Stanley Cup and they lost four-nothing to Boston. Everybody is now familiar with what happened after that game.

There was a full-scale riot that took place in various parts of downtown Vancouver. [ 4 ] There were admissions of fact filed in this case, and with respect to those admissions, Mr. G. was at home during the game. He was consuming, with respect to the pre-sentence report that was prepared, he was consuming alcohol at home, up to a mickey of rum by himself. He and a friend came down, left their home in North Vancouver, and came to downtown Vancouver just to walk around and take

part in the action that was going on in downtown Vancouver, which they at the time did not know, I am told, that it was riotous action. There were, however, certainly a lot of people that were around in downtown Vancouver, and they were there for essentially a street party and hopefully a celebration. It did not turn into a celebration, it turned into something quite opposite to that. [ 5 ] But Mr.

G. found himself downtown Vancouver in the middle of these riots, and he was intoxicated, and he was, at the time, a 17-year-old young man, and he got himself involved in actions which, I am sure in hindsight now, he wishes that he had never got involved in. [ 6 ] Now, the message that people need to understand and the public needs to understand is that the Youth Criminal Justice Act does not, and it has been said before, it does not immunize people under 18 from fair and proportionate accountability for their actions.

There is a balance, however, that must be struck, in light of the provisions of the Youth Criminal Justice Act , and that is relating to the youth sentencing principles. These principles are different in a material nature than those that are applied to adults. Parliament has directed that. That is the law. Parliament has directed judges to adopt a firm policy that the criminal justice system for youth be separate from that of adults, and that is in s. 3(1)(

b) of the Youth Criminal Justice Act . [ 7 ] I am assisted by having all of those provisions provided by counsel for the Crown and I appreciate that assistance. In fact, her assistance with the authorities, the charts, and the book of documents have been quite helpful, and I thank her for that. [ 8 ]

Section 50 of the Act says that, with limited exceptions, the provisions relating to sentencing found in the Criminal Code do not apply to youth. [ 9 ] The Supreme Court of Canada in the B.W.P. case found that nothing in the Youth Criminal Justice Act supported harsher sanctions on a youth for the sole purpose of "sending a message", not to the youth, but to others who may engage in criminal conduct, and that is found at paragraph 26 and also paragraph 4. They are explicit in reminding the courts that general deterrence is not a principle of youth sentencing under the present regime.

It may be in the future, we will have to wait and see, but at this point in time principles of adult sentencing in that regard do not apply. [ 10 ] Now, I am reminded by Ms. Sinclair for the Crown that there are other provisions in the Youth Criminal Justice Act that illustrate or demonstrate my caution at the start by saying that the Youth Criminal Justice Act does not immunize people under the age of 18 from fair and proportionate accountability.

Those kind of provisions are throughout the ss. 3, 38, and 39 of the Youth Criminal Justice Act ; accountability being an important part of the youth criminal justice sentencing regime. [ 11 ] The Crown says that in this particular case, and I will get into the facts in a minute, but in this particular case the appropriate sentence is an intensive support and supervision order, under s. 42(2)(

l) of the Act, for a period of 18 to 22 months with certain conditions, and that will meet the objectives of sentencing in this particular case. [ 12 ] They are careful to point out that in this particular case, the circumstances, and the circumstances of Mr. G. in particular, have led to a position by the Crown that a custodial sentence, an exceptional one under the Youth Criminal Justice Act , an exceptional sentence, is not warranted in this particular case. [ 13 ] Now, on behalf of the defence, Mr.

Roesch says essentially that a probationary term can meet the principles that include most of the provisions that the Crown is seeking. He does submit that a curfew is not necessary in this particular case. [ 14 ] Now, getting back to Mr. G., once he was downtown with his friend, he was seen on video with respect to a Hummer owned by the Mussio family, running towards that vehicle and sort of jumping up in the air and kicking it with one of his legs, and that was prior to somebody else in the crowd ultimately setting that vehicle on fire, completely destroying the vehicle.

So it was in the context of that, and there was a huge crowd milling about, and Mr. G. is clearly seen running to that vehicle and giving it a kick in the rear of the vehicle. [ 15 ] He is later seen, with respect to an Acura MDX SUV-type vehicle, a 2003 vehicle owned by Ms. Inouye, he is later seen taking his skateboard and smashing the windows of that vehicle. Now, it appeared to me on video, and that is the submission by defence and there is nothing to refute that, that the windows were already broken, but that Mr.

G. certainly was seen clearly smashing whatever windows were left or whatever remnants of the windows were left in that vehicle. He is seen doing that on several occasions. He does it on one occasion and then he is seen to be at least away from the vehicle for a short period of time, and then comes back to the vehicle and does it again.

[16] Again, this is in the context of a huge crowd milling about, egging on those who were causing damage in a fashion that I willcomment on right now. Much has been said about the context of this incredibly disturbing incident, and Judge MacLean in theDickinson case, which is at 2012 BCPC 40 , [2012] B.C.J. No. 314, Judge Harris in the Alviar case at 2012 BCPC 181, [2012] B.C.J.

No. 1179, and Judge Low in Yates case, which is at 2012 BCPC 250 , 2012 BCPC 0250, they commenton the overall context of the riot in a fairly detailed fashion, and no doubt there could be treatises that are written, as far as analyzing theevents that took place on June 15th, 2011, and we would be no closer to fully appreciating the impact of the destruction and the mayhemor the reasons for that occurring. [17] I will add a few comments, however. A riot is really one of the highest forms of civil disorder.

Organized or disorganizedgroups, they lash out in a sudden, intense rash of violence, and it is against innocent civilians, police in this case, emergency personnel,private property, public property. The apparent irony, at least in this case, I find it, is that after watching the videos relating to the riotingthat were shown in the sentencing processes, there is no air of anger or the sense of long-held grievances boiling over in a politicalcontext, as there often is in this kind of behaviour.

Here there really appeared to be a mob that was simply fuelled by alcohol, andgenerally euphoric 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 allaround them.

It was the kind of behaviour that humans, with their capacity normally to make reasoned judgments, are and should beextremely ashamed of. [19] There is a collective responsibility among members of these kind of mobs, and that responsibility runs from the person whosimply refuses to leave the area to the person who recklessly hurls objects at the police or assaults good Samaritans, or sets property onfire or loots. Each participant bears their responsibility, and that is confirmed as much in the case law. [20] Mr.

G. must take his appropriate responsibility for his actions in this senseless affair, and he seems to be doing that by enteringessentially what is an early guilty plea in these proceedings and admitting that he took

part in a riot. [21] After the riot was over, he -- after it was all over, he ended up back home. It was only after the videos emerged and somebodyhad -- an informant had advised the police that he was one of the individuals depicted in the video, that Mr. G. was charged and thenultimately pled guilty soon after that information was sworn. [22] He is, by all accounts, an upstanding, well-behaved, and responsible young man.

How he got himself into this is difficult todetermine, and again I have commented on the fact that social psychologists have a difficult time in explaining how people get caught upin mob behaviour. If the scientists cannot explain it so that laypeople can understand it, what you are left with is -- well, you are left witha bunch of speculation. [23] That speculation is no doubt part of what Mr. G.'s parents were engaging in when they tried to determine just how did he gethimself into this trouble.

They thought that it could be because of the family situation that was going on at the time, which was theseparation of his parents; although they live in the same home, they became separated and there was some tumult in the home. Theythought that maybe it is because he tends to be a follower, which could land him in trouble. [24] But all of that really, when you boil it down, is speculation, because he has not been in trouble before this. If that was hischaracter trait, it surely would have arisen before this. [25] He is described as being independent and a helper, someone who is good to others.

Neither parent can recall any difficulties inearly childhood, except after the arrival of the brother there was some sibling rivalry, but that evened out, as it often does. In fact people,in hindsight, they try to find benchmarks that can explain later bad behaviour, and it is often really an illusory kind of process, becausemuch of what is said to be the precipitating factors are really no more than what every normal kid has to deal with as they grow up. [26] So you are left with a young man who has basically graduated from high school, was good in high school. He took shopprograms in high school.

He worked with ---- and ----, and it is noted that those employers really had a positive regard for him. He hasjust graduated in June of this year and he has dreams of attending perhaps BCIT for a pipefitting program, or perhaps enlisting with theCanadian Armed Forces and becoming a combat engineer. [27] Nothing in his character tells me that he cannot do anything that he puts his mind to wanting to do.

There is no indication thathis dreams or his goals or his intentions are unrealistic or the kind of pie-in-the-sky intentions that you often hear from kids who havebeen so troubled from such an early stage that you just are not convinced at all that they can reach the kind of lofty goals they set forthemselves, but Mr. G. is not that type of individual. [28] He essentially comes before this court with an unblemished character and no record, no Youth Court record, no problems withthe law. [29] He is appropriately embarrassed about the incident.

He seems to have some insight into the damage that was caused and theharm that was caused to society and to individuals specifically. I believe him when he says that he regretted it immediately and felt sickabout it, probably when he sobered up. [30] The victims of his particular behaviour within the context of this riot were significant. The Mussios lost their Hummer, theirvehicle that was apparently, because their vehicle was discontinued, going to be a rare vehicle. They were out of pocket, even after theinsurance proceeds. That is the case with Ms.

Inouye, the owner of the Acura, who had to find a new vehicle and suffer the unintendedconsequences of financing that new vehicle. She did not want to do that, she liked her vehicle just the way it was. [31] Mr. G. has been supervised by the North Shore Youth Justice since March 22nd of 2012. It is reported that he has been politeand cooperative in his meetings with the bail supervisor, Ms. Watson, who is the author of the pre-sentence report. It is a fulsome reportand I appreciate her efforts in making it that. Essentially she is of the impression that Mr.

G. understands that his actions haveconsequences that are -- and that he is willing to comply with any conditions that the court may impose.

[32] So what is the appropriate sentence for someone like that, in the context of what is a very serious -- has to be determined as avery serious offence. In some countries, I mean, I am sure Mr. G. knows in some countries in this world, rioters and looters get shot onthe spot. That is how serious it is seen as a breach of the civil order. It is fortunate that we do not do that in this country, although I amsure there are many out there who, after seeing this on the TV and in the videos, wish we had a system like that. But those people arenot the ones who should be directing what happens to young people like Mr.

G. in these circumstances. [33] He has got letters from people that know him; his neighbours, who feel so confident about his character that they leave theirchildren with him. He is essentially a trusted young man who is responsible, by everybody's assessment of him. [34] The cases for adults, I agree with Ms. Sinclair that most of those cases contemplate some kind of jail period, and whether thatjail is by conditional sentence order or not is really the question in those cases.

But, you know, the overwhelming majority of those casesresult in some kind of a jail sentence, even when an individual has no record, and that is to reflect the seriousness of the offence. In mostof those cases, the primary sentencing goal that is noted by the judges in those cases, that being one of general deterrence. [35] Illustrative of that is R. v. Loewen, (BC CA), 15 B.C.A.C. 42, and that is the B.C. Court of Appeal talkingabout the Penticton riots in 1991. There was a young man, 18, a first offender, appealed a jail sentence of six months for taking

part in ariot. The appeal was dismissed when the court said that the principle of not imposing a custodial sentence on a first-time offender mustyield to the principle of general deterrence. It should be noted, once again, that the principle of general deterrence is not one that isapplicable to the Youth Criminal Justice Act. [36] R. v. J.G., which is the B.C. Court of Appeal, (BC CA), 15 B.C.A.C. 128, did deal with a young offender,and that young offender, again in the Penticton riots, threw over a kiosk and threw or kicked a tear gas canister and some wood.

He hadno criminal record, sentenced to four weeks of open custody and 240 hours of community work service. [37] The Court of Appeal found that the jail sentence contravened the principle that, where possible, there should be no incarcerationfor a first-time offender, and they cut the community work service hours in half. [38] So the various approaches, including a case that I was handed, too, from the English courts of Blackshaw, essentially showinghow serious other jurisdictions take these cases.

The young men in that jurisdiction were receiving sentences of a significant amount oftime in jail, although that approach has been criticized by some commentators. [39] With respect to the young offenders, I have been given also the cases with respect to young offenders, and what I will do isattach -- I may tear out, so that I do not have to spend time going through all the cases that were given to me to consider as to -- just takeout of my copy the two sentencing charts and put those on, attach those to the file, so that people will know what cases were before thesentencing judge, if it ever comes up again.

Well, it is going to come up again. [40] The case of E.P. is one that is commended to the court because that case, 2007 BCPC 159, was a decision of Judge O'Byrne upin Fort St. John, a house party that got really out of control.

That case, the young person, 17 years old, had no record and threw bottles atthe police, had an 18-month probationary period, including a curfew for the first 10 months and an order for 100 community workservice hours. [41] Now that case, I am urged to consider that that case, as far as the contextual nature of that case, pales in comparison to the scaleof the riot that was taking place in Vancouver and I note that. There is no doubt about that. [42] There is a slight doubt by me that, on my part, that Judge O'Byrne had in his mind the B.W.P. decision in sentencing E.P.

Inany event, it is not referred to in the decision, as far as I can see.

There are some discussions by Judge O'Byrne about, while generaldeterrence being a lesser principle or a principle that should take a back seat to other principles like rehabilitation, he does talk about itand refers to Judge Auxier's decision in the J.B. case. [43] But in any event, one of the issues that is raised was the propriety or the necessity of imposing an intensive support andsupervision order, whether that is necessary in order to meet the principles of sentencing in this particular case and having regard to theYouth Criminal Justice Act sentencing principles.

There was a case that I just referred to, the case called R.C.W.M., 2004 BCCA 502,where Justice Smith at that time, dealing with, in the context of a case of a mob, a bunch of young people sort of engaged in a groupbeating of another individual, he says at paragraph 22: Intensive support and supervision programs are intended to provide more significant support and supervision for offenders than would beavailable under a probation order.

They may include therapeutic assistance, such as counselling and behavioural management training, toassist to rehabilitate offenders and to reintegrate them into society with a more fully developed sense of responsibility. He says those comments about the intensive support and supervision program. [44] In my reading of the cases that I looked at, it seems to me that that kind of a program has often been attached to short jailsentences, sometimes deferred custody orders, short jail sentences, as a means of doing exactly that; reintegrating the young offender intosociety and assisting to rehabilitate that offender.

That seems to be the purpose for that program; providing significantly more supportthan might be available under a probation order. [45] In my mind, in light of the facts in this case, most importantly Mr. G.'s complete lack of antecedents and his normal and usualgood character, I cannot conclude otherwise, but that this is an isolated incident. Isolated, but still requiring some kind of response,Mr. G. knows, because he made choices at that point in time and those choices have a consequence. Sometimes choices have badconsequences and he knows that.

He is prepared to accept that. [46] But those consequences can be the subject of a probation order and, in my mind, a probation order under s. 42(2)(

k) of 18

months in duration is the appropriate sentence. [ 47 ] The conditions of that will be, Mr. G., that -- stand up for a moment, Mr. G. -- you are going to -- you may hear about this matter for a long period of time. I am sure there are people in your community and the people that are around you that know about what happened, and your involvement as one of the people that are charged in this incident. That cannot have been -- I hope it was not a very positive experience in the last, you know, year that you and your family have had to go through.

I am sure it is extremely embarrassing to you and your family, and I hope that that has had a huge impact on you, so that you make -- forcing you to think about what you do in the future and to make different decisions in the future.

I cannot imagine that it has not; I cannot imagine that it has not. [ 48 ] These conditions are designed to help you, but also -- designed to help you, you know stay on the right track, but also designed to meet the other principles of the Youth Criminal Justice Act , and that is to address things like accountability and like consequences for behaviour, encouraging the repair of harm done to victims and the community, and reinforcing respect for societal values, those kind of things.

Those are important principles and there has to be something to address those. [ 49 ] So you keep the peace and be of good behaviour. You will appear before the Youth Justice Court when required by the court to do so. [ 50 ] You shall report no later than four o'clock on Friday, August 24th, to the North Shore Community Corrections office at 301, 224 West Esplanade in North Vancouver, B.C., and thereafter report when directed by your youth worker. Have you already been reporting to Ms.

Watson? [ 51 ] THE ACCUSED: Yes, I have. [ 52 ] UNIDENTIFIED SPEAKER: Yes, frequently. [ 53 ] THE COURT: Okay, thanks, so I am assuming you will stay with Ms. Watson, if she is still there. [ 54 ] UNIDENTIFIED SPEAKER: That's correct, Your Honour. [ 55 ] THE COURT: Thanks.

You will reside at a residence approved of by your probation officer and do not change that residence without first obtaining the written consent of the probation officer. [ 56 ] You shall attend school or such other vocational or educational day programs as directed by your youth worker or seek and maintain employment to the satisfaction of your youth worker. That just means, Mr. G., that you are doing what you should be doing anyways, going to school or looking for or actually attending at work. I mean those are the things that young men should be doing.

You are not just sitting around doing anything, okay. [ 57 ] I do think that there should be a short period of curfew.

You are not to be outside your place of residence between the hours of 10:00 p.m. to 7:00 a.m. daily, and remain in your residence during those hours, except with the written permission of your youth worker, and such permission must be carried upon your person and presented upon request by a peace officer or youth worker or his or her designate, and that will be for a period of three months. [ 58 ] I make it that length of time because you have had serious consequences already that are punitive in nature with respect to this matter.

People are not going to be satisfied with any punitive action that is taken against you, quite frankly, and I have already told you what happens in some countries. People just are not going to be satisfied. The point being is that for three months, you cannot go out at night, and I know, because I have teenagers, that keeping you in your house for three months during the evenings is a significant penalty. I know that. It is going to take up the rest of the summertime, but that is, when we talked about there being consequences for certain choices, you must have known that there was going to be some consequences.

If you are a man, and you are now a man, you will live up to those consequences and you will do what is being asked of you, and you will not complain about it. [ 59 ] You will present yourself at the door of your residence or answer the phone when required to do so during those hours, and you will present yourself at the door to any peace officer, youth worker or his or her designate who should come to your residence to determine compliance with the curfew provision. [ 60 ] You will take, accept, and complete any counselling or other programs as directed by your youth worker. [ 61 ] You are going to abstain from the possession and consumption of alcohol, and you will abstain from the possession and consumption of any drugs, as defined in the Controlled Drugs and Substances Act for which you do not have a prescription. [ 62 ] Again, and that is a difficult thing for a young man to do, too, is to abstain from alcohol, but alcohol was a part of this whole thing and if you can have the willpower, the intestinal fortitude to just man up and not drink for that period of time, you will be, I think, I hope, proud of yourself and at least have some knowledge that you are actually doing your time.

You are accepting the consequences, okay. [ 63 ] You are going to complete 100 hours of community work service hours to the satisfaction of your youth worker. [ 64 ] And again, there is another request here that you shall write an essay to the satisfaction of your youth worker on the topic of riots and why they undermine the values of a free and democratic society. This essay shall be completed by no later than November 22nd, 2012. [ 65 ] That may be helpful to you, Mr.

G., I sure hope it is, because when you do some research into just how damaging this kind of behaviour is on a civil society, and when you look around the world at the responses in other communities, what happens in cases of rioting, you will realize just what a serious kind of incident it was.

[ 66 ] Not part of the probation order, but part of a recommendation is that, should there, within that period of time, become available an opportunity for you to be involved in a restorative justice conference, then I will recommend that you be involved in that process. [ 67 ] Anything else? [ 68 ] MR. ROESCH: Just the time to complete the hundred hours, would that be the -- [ 69 ] THE COURT: Yes, the hundred hours should be completed within the first 12 months of that order. [ 70 ] MR.

ROESCH: Thank you. [ 71 ] THE CLERK: This was an intensive support and supervision order? [ 72 ] THE COURT: This is just a probation order under subsection (k). [ 73 ] THE CLERK: What period? [ 74 ] THE COURT: Eighteen months. [ 75 ] THE CLERK: Thank you. [ 76 ] MS. SINCLAIR: Thank you, Your Honour, and Crown directs a stay of proceedings with respect to Count 2 and 3 on Information 22595-V-1. [ 77 ] THE COURT: Okay. [ 78 ] MR. ROESCH: Thank you, Your Honour. [ 79 ] THE COURT: Thank you, Ms. Sinclair, thank you for your careful submissions. [ 80 ] MR.

SINCLAIR: Thank you, Your Honour. [ 81 ] THE COURT: Thank you, Mr. Roesch. [ 82 ] MR. ROESCH: Thank you. [ 83 ] THE COURT: Mr. G. -- yes, that should go on the file, those letters should go on the file. Going to pass back the books. I do not know if you can read -- did I write on these? I do not know. Yes, I probably did, but I will pass those back, in case you can use them again at all. [ 84 ] All right, Mr.

G., do you have any questions? [ 85 ] THE ACCUSED: No, sir. [ 86 ] THE COURT: Well, I wish you good luck, and you know, make your family proud by, from this moment on, doing what a young man should be doing, you know, staying out of trouble and getting your education finished and moving on with your life, becoming a productive member of society. [ 87 ] I am sure they have worked, as you know when you will become a parent, they have worked their entire life to give you the chance to succeed and do not let them down. They do not deserve to be let down.

Good luck to you. [ 88 ] THE ACCUSED: Thank you, I will. (REASONS FOR SENTENCE CONCLUDED)