R. v. A.J. Date:, 2013 BCPC 44

Citation: R. v. A.J. Date: 20130130 2013 BCPC 0044 File No: 22604-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. A.J. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M.F. GIARDINI Counsel for the Crown: Patti Tomasson Counsel for the Defendant: Wayne Murdoch Place of Hearing: Vancouver , B.C. Date of Hearing: January 8, 2013 Date of Judgment: January 30, 2013

INTRODUCTION [ 1 ] A.J., who was a 17 year old youth in the summer of 2011, has pled guilty to taking

part in the Vancouver Stanley Cup playoff riot contrary to s. 65 of the Criminal Code . [ 2 ] The incident giving rise to the charge against A.J. took place in Vancouver on June 15, 2011, (“June 15”) the night of the now infamous second Vancouver Stanley Cup playoff riot (“the riot”). The Vancouver Canucks were playing the Boston Bruins in the seventh game of the Stanley Cup finals (“the game”). During the game thousands of people congregated in downtown Vancouver. Large television monitors were set up in designated venues which allowed people to watch the game.

The Bruins had control of the game and won with a final score of 4 – 0. Even before the end of the game, the mood and behaviour of some persons in the crowd at and around the live site turned ugly. What was supposed to be a night for celebration degenerated into a night of violence and mayhem which included: looting, vandalism, assaults, open defiance of police orders and wanton destruction of property. ADMISSIONS OF FACT [ 3 ] Pursuant to

Section 655 of the Criminal Code , the parties agreed to admit the following facts: The riot generally [ 4 ] On June 15 the Vancouver Canucks hockey team played game seven of the Stanley Cup Finals against the Boston Bruins in Vancouver.

A riot occurred in the downtown core of Vancouver between approximately 7:30 p.m. on June 15, 2011 and 12:30 a.m. on June 16, 2011. [ 5 ] A.J. participated in the riot. [ 6 ] That night, there were approximately 155,000 people in the downtown core of Vancouver during the game at various venues including Roger’s Arena, public viewing locations, private residences, restaurants and bars. [ 7 ] The main public viewing site or “live site” was situated near the Rogers arena in an area that has the Vancouver Public Library, the main post office, Queen Elizabeth Theatre and the CBC.

The area is bounded by Georgia Street, Robson Street, Hamilton Street and Homer Street. Approximately 55,000 people watched the game at the live site. [ 8 ] Television coverage of the game commenced at 5 p.m. The Boston Bruins won the game at approximately 7:45 p.m. with a final score of 4 - 0. [ 9 ] At approximately 7:43 p.m. a passenger vehicle, a Versa, was overturned at the live site. The Versa was set on fire shortly before 8:00 p.m.

The riot started at this location and spread throughout the downtown core of Vancouver. [ 10 ] A second vehicle, a GMC Truck, was overturned at the live site and set on fire at approximately 8:30 p.m. [ 11 ] As the rioting crowds occupied West Georgia Street and the surrounding areas, multiple commercial premises windows were broken and the contents of the 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, including the area of Granville Street and West Georgia Street where a London Drugs store is located. The London Drugs store was approximately three blocks west of the live site.

Rioting at London Drugs [ 12 ] London Drugs is a chain of Canadian retail stores that sells a variety of items including: pharmaceuticals; cosmetics; house wares; electronics; and grocery items. [ 13 ] There is a London Drugs store in the downtown core of Vancouver at 710 Granville Street which is at the south-east corner of Granville and West Georgia Streets, across from The Bay and the Sears department store which was then also at that location. [ 14 ] That London Drugs store is comprised of two floors which are open to the public.

The main floor, accessible from the main entrance on Granville Street, sells cosmetics, grocery items, cigarettes and pharmaceuticals. The lower floor sells small appliances, electronics, cellular phones, cameras and computers. There is a public exit from the lower floor which leads into a connecting underground mall. [ 15 ] When London Drugs is closed the main entrance is secured by a steel gate in addition to thick glass doors. The steel gate spans across the main entrance, is floor to ceiling in height, and locks on either side of the main entrance.

The glass doors also span across the main entrance, are floor to ceiling in height, and are exterior to the steel gate. [ 16 ] On June 15 London Drugs was open for business and scheduled to close at 10:00 p.m. There were 27 store employees working this included six loss prevention officers. There were also two private security guards hired to stay outside the store while it was open.

During the course of the evening, two additional loss prevention officers were re-assigned to that London Drugs from another store. [ 17 ] At approximately 7:40 p.m. the store supervisor, decided to close the store early after observing an increasingly hostile crowd in the downtown core and receiving reports of a fire at the live site.

[ 18 ] By approximately 8:00 p.m., the lower floor doors to the underground mall were closed and controlled by a store employee who provided existing customers within the store an opportunity to exit. At this time, employees closed the doors at the main entrance by locking both the steel gate and the exterior glass doors. [ 19 ] Over the next hour, store employees heard intermittent banging sounds as various people began to attack the glass doors and other windows at the main entrance.

The store supervisor directed the employees to stay away from the main entrance in an effort to minimize attacks to the storefront by the increasingly hostile crowd outside. [ 20 ] People in the crowd outside London Drugs were smashing the windows of numerous businesses within the immediate vicinity of London Drugs and stealing merchandise.

For example, The Bay and Sears had numerous windows smashed and several thousands of dollars of merchandise stolen by looters. [ 21 ] The store employees inside the London Drugs watched the riot occurring around them on live news broadcasts displayed on televisions in the electronics department located in the lower-level of the store.

Given the nature of the riot, the London Drugs employees remained within the store for their safety. [ 22 ] At approximately 9:50 p.m., the store employees removed the cash terminal safe boxes bolted beneath each cash register and locked all the safe boxes into the London Drugs safe. At this time, people in the crowd outside the store had lit a tree on fire directly in front of the store’s main entrance. Shortly thereafter, people in the crowd outside began to attack the glass doors and windows of the store with increased intensity.

Out of concern for safety, the store supervisor directed all store employees to hide in a small, windowless security room located on the basement level of the store. [ 23 ] The security room contains components of London Drugs closed-circuit television (“CCTV”) system. Specifically, the security room has television screens which display what is occurring at various locations throughout the store.

During the riot, the loss prevention officers were able to view, capture and record the activities occurring at the main entrance and throughout the store. [ 24 ] At approximately 10:00 p.m., people in the crowd began smashing the exterior glass doors with various items.

Within approximately 10 minutes, the crowd had broken through the exterior glass doors, entered into the front foyer area and began rocking the steel gate back and forth to gain access to the store. [ 25 ] A loss prevention officer who was working at the London Drugs that night made three calls to 911 seeking help. [ 26 ] By approximately 10:16 p.m. the crowd had completely breached the entrance to London Drugs and a number of people broke into the store, overturned display cases and stole merchandise.

The entire break-in and looting of London Drugs lasted approximately 25 minutes with an estimated 300 people breaking in and looting the store. [ 27 ] None of the store employees were physically injured, however many were traumatized to the point of tears. Seven victim impact statements from store employees and loss prevention officers working at the London Drugs during the riot were marked as Exhibits in this sentencing hearing. [ 28 ] London Drugs suffered extensive damage and financial loss as a result of the riot.

Many of the exterior windows, including the glass doors, and the steel gate were broken; display cases were destroyed; and there was significant merchandise loss and construction repair. The financial loss to London Drugs was $895,782.69 which includes $139, 327.03 to repair damage and $756,455.66 in stolen and/or damaged merchandise. A.J.’S PARTICIPATION IN THE RIOT [ 29 ] On June 15 A.J. arrived in the downtown core of Vancouver before the game ended.

A.J. was at the live site between 6 p.m. and 7 p.m. and this was recorded on video. [ 30 ] A.J. was wearing a light blue t-shirt with white writing on the front, knee-length green camouflage-patterned shorts, and a yellow baseball cap worn backwards. A.J. also had the word “Canucks” printed in black capital letters across his forehead and a diamond stud earring in his left ear lobe. [ 31 ] At approximately 10 p.m., A.J. was captured on video standing in a crowd outside The Bay on the north-east corner of Granville Street and West Georgia Street.

That video showed A.J. watching as people in the crowd were looting the store. [ 32 ] At approximately 10:22 p.m., A.J. entered London Drugs through the broken glass doors at the main entrance, selected an item of merchandise from the upper level of the store and then exited the store with the selected item in his right hand. [ 33 ] Approximately one minute later, A.J. entered the London Drugs for a second time through the broken glass doors. On his second entry, A.J. selected a second item of merchandise from the same area that he had selected the original item.

A.J. then went down the escalator to the lower level of the store and was captured on video surveillance with items in his hands as he moved throughout the lower level of the store.

A.J. exited the store after his second entry, carrying the stolen merchandise in his right hand and using his left hand to pull his t-shirt up to cover his face. [ 34 ] Some of A.J.’s actions inside the London Drugs, outlined above, were recorded on the London Drugs CCTV system. [ 35 ] On January 25, 2012, A.J.’s photograph was posted on the Vancouver Police Department’s website and labelled IRIT #416 as a means to seek the public’s assistance to ascertain his identity.

A.J.’s photograph was also posted on the Vancouver Police Department’s Riot Round-Up 2 poster which was distributed at several venues around Vancouver on March 8, 2012. [ 36 ] From March 8, 2012, to March 13, 2012, the Vancouver police received eleven tips identifying A.J. as IRIT # 416.

[ 37 ] On March 8, 2012, the Vancouver Police received a telephone call from a male who identified himself as IRIT # 416. This male stated that his name was A.J. and made an appointment to turn himself in at the Vancouver Police Department on March 9, 2012, at 10:00 a.m. [ 38 ] On March 9, 2012, A.J. attended at the Vancouver Police Department in the company of his mother, D.J.

On this day, and while alone in the interview room, A.J. confessed to his participation in the riot and apologized for his actions. [ 39 ] On June 21, 2012, A.J. was arrested on an endorsed warrant and released on a Promise to Appear which included a condition that he abstain from the consumption of alcohol. [ 40 ] On July 20, 2012, A.J. was arrested by (redacted) Police for breaching the abstain condition. A.J. was held overnight and released the following morning. [ 41 ] A.J. was born on August 17, 1993. CONTEXT OF THE RIOT [ 42 ] Below is a

summary of the overall context and impact of the riot on Vancouver, its citizens and businesses. 1. On the night of June 15 Emergency Personnel were deployed to the downtown core of Vancouver as follows: a. 928 police officers of which 606 were members of the Vancouver Police Department and 322 were members from other lower mainland municipalities and the Royal Canadian Mounted Police, b. 63 members of the Vancouver Fire and Rescue Services and, c. 44 members of the British Columbia Ambulance Service. 2.

There were more calls to 911 in the 4-hour period after the game than there had historically been in any 24-hour period. For example, at one point during the riot there were 92 calls to 911 for Ambulance Services placed on hold. 3. On June 15 at approximately 8:17 p.m. Ambulance Services Command determined that the area east of Burrard Street was not safe and relocated all, except six of their members, to St. Paul’s Hospital. Six specially trained Ambulance Services members of the Integrated Tactical Support Unit (“ITSU”) remained with the police in the area of the riot.

ITSU members responded to calls within the area of the riot and coordinated casualty removal to safe areas for treatment. The six ITSU members were the only medical resource available in the area of the riot. ITSU dealt with over 100 patients during the riot. 4. Between 6 p.m. on June 15 and 6 a.m. on June 16 St. Paul’s Hospital dealt with 150 emergency room visits. In comparison, Vancouver General Hospital dealt with 15 emergency room visits for the same time frame. St.

Paul’s Hospital also set up a patient decontamination area outside of the emergency room to deal with patients suffering from exposure to tear gas or pepper spray. An additional 100 people were treated at the decontamination area. 5. The Integrated Riot Investigation Team of the Vancouver Police Department has identified 297 riot events. A riot event is an incident relating to either a certain location, such as London Drugs, a piece of property, such as a motor vehicle, or a person, such as a victim of an assault.

For example, the break and enter to London Drugs located at 710 Granville Street, which involved looting of the store by approximately 300 individuals, was recorded as a single event. The 297 riot events involved: a. 26 arsons, b. 193 mischiefs, c. 26 break and enters, and d. 52 assaults, of which 18 were civilians, 32 were police officers and 1 was a firefighter. (I note these numbers do not add up to 52 but this does not affect the analysis in this case.) 6. There were 116 arrests in the area of the riot on June 15. 7.

During the Riot: a. 112 businesses were damaged, b. 122 vehicles were damaged or destroyed, divided into three main categories of: i. 93 civilian vehicles, ii. 5 business vehicles, iii. 24 emergency vehicles (police and fire department). 8. The resulting monetary loss is: a. $2,715,591.59 to businesses, b. $537,869.00 to civilians,

c. $524,730 to the City of Vancouver, Ambulance Services and St. Paul’s Hospital. 9. As of February 2, 2012, the total estimated monetary loss as a result of the riot was $3,778,190.59. This figure is not a comprehensive representation of loss as 85 events have not provided estimates of loss and many additional costs such as lost wages, or labour costs for businesses have not been included. 10. The psychological impact of the riot is difficult to quantify as personal experiences varied greatly.

Some persons barricaded themselves inside businesses for safety, others guarded their businesses against rioters, a number of citizens defended property or other persons at risk to themselves. Some people have sought counselling. What is common to all is that the riot has stripped a sense of safety and security from citizens of Vancouver. BACKGROUND OF A.J. [ 43 ] A.J. was born in August 1993 and accordingly was 17 years old at the time of the offence. He grew up in (redacted) and continues to live there with his mother and father and older brother.

He attended a private elementary school and graduated from (redacted) Secondary in June 2011. He has completed several on-line courses at Langara College. A.J. has recently accepted a full-time position working at a warehouse. He has put his college education on hold. As a result of the legal proceedings relating to the riot charge A.J. has significant legal fees. He needs to work to pay those fees. Before working in the warehouse A.J. did a variety of other work while in high school.

He currently also works in a part-time position doing respite work with youth one day a week. [ 44 ] His mother describes A.J. as a respectable, likable and sociable young man. She and her husband have never had any significant behavioural concerns with their son. He has typically met their expectations in terms of responsibilities, chores, work, school and using the family car. When his role in the riot became known to his parents he was grounded to the family home and was not permitted to go out with friends or use his parents’ car.

His mother reports that he changed significantly and in a positive way. [ 45 ] Leading up to the offence A.J. described himself as a social drinker and estimated that he drank about two times a month mainly at parties with his friends. His mother was aware of A.J.’s social drinking. She did not condone it but noted that A.J. was responsible when choosing to drink as he usually was in good condition when he returned home. She said she saw her son overly intoxicated on three occasions.

However on those occasions A.J. was responsible enough to call her and ask for a ride home. [ 46 ] On the night of the riot A.J. admitted to drinking rum during the evening. He estimates he drank 10 ounces. He began drinking when the game started at 5 p.m. and stopped drinking when the game concluded at about 8 p.m. A.J. guessed that on a scale of intoxication from 1 to 10, he would have been an 8. A.J. told the youth worker who prepared the pre-sentence report that he remembered most of the evening but some parts he was unable to recall. A.J. went to downtown Vancouver with friends to watch the game.

By the end of the game he recalls hearing people in the crowd begin to talk about rioting and admits that he turned down a friend’s offer to leave for (redacted). He reported he did that so he could see what was happening. He chose to walk around the downtown area as the riot began and started to spread. [ 47 ] A.J. admits that he entered the London Drugs store on two occasions within a short time span and left the store with some items in his hand. He does not recall what items he took. The next day A.J. remembered he had gone into the London Drugs store. He very much hoped nothing would come of it.

His parents clearly asked him if he played a role in the riots. He lied to them denying any involvement. A.J. told the youth worker that the year leading up to his arrest was “messy”. He was worried because he knew there would be a day when he would get caught. His mother reported that she was devastated when A.J.’s picture as a suspected rioter was brought to her attention by a work colleague while she was at work. [ 48 ] As a result of the charge A.J. was arrested and taken into custody. He has been on bail conditions from approximately July 3, 2012 to the present.

On July 20, 2012 he was arrested for allegedly breaching his abstain condition on his undertaking. As a result of that arrest he was held overnight in police cells. PARTIES POSITION ON SENTENCE [ 49 ] The Crown submits that considering all the aggravating and mitigating factors, and the principles set out in the Youth Criminal Justice Act (“ the YCJA ”) a fit sentence for A.J. for the offence of taking

part in the riot is a term of probation for a period of 18 months with a number of conditions designed to meet the objectives of the YCJA . The Crown advised the court that while A.J.’s actions constituted a serious offence, they did not fall under the parameters of s. 39 (1)(

d) of the YCJA . The Crown acknowledged the youth worker wrote that an Intensive Support and Supervision Order might be appropriate. The Crown did not seek such an order because it concluded it is not necessary in A.J.’s circumstances. [ 50 ] A.J. acknowledges that a term of probation is appropriate in this case. However, he disagrees with several of the conditions proposed by the Crown, in particular, the length of the probation term and the geographical restrictions suggested by the Crown. APPLICABLE LAW The Youth Criminal Justice Act [ 51 ]

Section 3 of the YCJA , under the heading Declaration of Principle, reads as follows: 3.

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

a) the youth criminal justice system is intended to

(

i) prevent crime by addressing the circumstances underlying a young person's offending behaviour, (ii) rehabilitate young persons who commit offences and reintegrate them into society, and (iii) ensure that a young person is subject to meaningful consequences for his or her offence in order to promote the long-term protectionof the public; (

b) the criminal justice system for young persons must be separate from that of adults and 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 ofmaturity, (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; [52] Furthermore, the provisions of the YCJA, start from the position that when sentencing young persons jail is a last resort. Section 38 (1) sets out the purposes and general principles designed to hold young persons accountable for their offences through theimposition of “just sanctions that have meaningful consequences” for the young person, that promote his or her rehabilitation andreintegration into society thereby contributing to the long term protection of the public.

Section 38 (3) provides that in determining ayouth 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; (

f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose andprinciples set out in this section. [53] The Supreme Court of Canada in R. v. P. (B.W.) (2006) 2006 SCC 27 , 209 C.C.C. (3d) 97, in interpreting the YCJAstressed that general and specific deterrence is not a principle of youth sentencing.

The YCJA stresses that “long term protection of thepublic” is achieved by addressing the circumstances underlying the offending behaviour, by rehabilitation and reintegration of the youngperson and by holding the young person accountable through the imposition of meaningful sanctions related to the harm done. TheYCJA has recently been amended and now provides that specific deterrence and denunciation may apply to young persons. However, asthis offence occurred prior to the enactment of the amendments, the former provisions and their

interpretation by the courts apply in thiscase. [54] In R. v. K.T.W. 2012 BCPC 52, Judge Baird Ellan in her usual concise fashion summarized the underlying philosophy of theYCJA as follows: [4] What the Act does not do is prescribe sentences that denounce crime or deter the young person or others. Those are adult conceptsthat do not apply in the youth sphere.

If there were a simple way to describe the differences in focus of the two regimes, it wouldprobably be that the aim of the youth system is more corrective than punitive, recognizing the greater responsibility that society has forensuring that a young person is not criminalized, in the long term. [5] The adult sentiment that a sentence should (simply) be appropriately punitive, for a child, must be replaced with a measuredemphasis on meaningful consequences and accountability, along with rehabilitation.

Proportionality also has a different meaning than itdoes for an adult offender, given the child’s dependency. [6] Custody, for an adult, means imprisonment. For a child, it means removal from his home and his parents, his situation ofdependency, and isolation in a custodial setting.

One has only to recall the devastating effects of the residential school systems torecognize that isolation from family support is not a constructive experience for a child, and is far less likely to promote responsiblebehavior in the long term. [7] While the adult sentencing regime includes the principle that custody is a last resort, the youth scheme only permits custodialsentences in certain very narrow circumstances.

A child without a record who commits a violent offence is eligible for a sentence ofcustody (Section 39(1) (a)), but the Court is still required to consider all available sanctions other than custody, and to impose the leastrestrictive sanctions, those most likely to rehabilitate and reintegrate the young person, as well as to hold him accountable for his actions:Sections 38(2) (

d) and (e).

[8] In connection with the purpose of the YCJA sentencing regime, Barclay J. of the SKQB made the following observation in R. v.Turcotte, 2008 SKQB 478: “[8] Section 3(1) (

b) of the YCJA recognizes a clear intention of Parliament and a primary objective of the YCJA to create a distinct youthjustice regime separate from that used for adults. This separate regime is founded on the notion that younger individuals, because of theirage, have heightened vulnerability, less maturity and a reduced capacity for moral judgment which entitles them to a presumption ofdiminished moral blameworthiness or culpability: R. v.

D.B. 2008 SCC 25 , [2008] 2 S.C.R. 3, at para. 41.” [55] The YCJA directs that there must be fair and proportionate accountability, taking into account the reduced maturity level of theyoung person. This is a central principle. However, my brother Judge St. Pierre said in R. v. S.P.G. [2012] B.C.J. No. 1889: “[6]…the Youth Criminal Justice Act does not…immunize people under 18 from fair and proportionate accountability for their actions. There is, however, a balance that must be struck in light of the provisions of the Youth Criminal Justice Act and that is relating to youthsentencing principles.

These principles are different in a material nature from those that are applied to adults. Parliament has intendedthat. That is the law. Parliament has directed judges to adopt a firm policy that the criminal justice system for youth be separate fromthat of adults…” [56] In 2006, the Supreme Court of Canada in R. v. B.W.P. 2006 SCC 27 , [2006] 1 S.C.R. 941, pointed out that theprinciples of general and specific deterrence do not apply when sentencing youth under the YCJA.

However, that is not to say, asMadam Justice Charron made clear, that sentencing under the YCJA cannot have a deterrent effect or that the Court must ignore theimpact which the particular crime had on the community. How participating in a riot is characterized [57] The Crown in its written submissions and in argument provided numerous cases which comment on the offence of taking

part ina riot. The case law was not challenged by the defence. Those cases indicate the following: a. Participation in the June 15 riot is a serious offence. b. Rioting, by definition, disturbs the peace of the community tumultuously. It is public disorder that has escalated to the point of actualor threatened force or violence, and that causes people of reasonable firmness and courage to be alarmed, see: s. 64 Criminal Code, R. v.Brien, (NWT SC), [1994] N.W.T.R. 59 (NWTSC) c. Participating in a riot, by its very nature, is a serious threat to an orderly society, see: R. v.

Loewen, (1992) (BCCA), 75 C.C.C. (3d) 184 (BCCA) d. To participate in a riot, as defined in s.64 of the Criminal Code, does not require the commission of separate criminal offences. Onecan be culpable of participating in a riot by “word, deed or other manner”, (R. v. Brien, at para. 38), so long as the individual’s actions“contributed to the excitement, fervor, intimidation and dangerousness” of the situation, see: (R. v. Loewen) at para. 45 e. In R. v.

Dickinson 2012 BCPC 40, the first rioting case dealing with the 2011 Stanley Cup riot, Judge MacLean set out the analyticalframework for sentencing an individual for participating in a riot. That framework was adopted by Judge Wingham in R. v. B.G. (28August 2012) Vancouver Registry 22593-1-V, unreported, as modified to address the principles of youth sentencing. The elements toconsider are as follows: a. The offender’s degree of participation, b. The context of the riot generally, including the impact on the victims, c. The offender’s personal circumstances, and d.

The principles of sentencing set out in the YCJA. B.C. riot related cases involving youths [58] Other judges of this court have sentenced other young persons charged with taking

part in the riot. Some of those decisionswere recently reviewed by Judge McMillan in R. v. J.C.M. (October 22, 2012), Vancouver Registry 22591-1-V, unreported. I haveaccordingly used the summaries of the cases that had been decided at that time in considering a fit sentence: a. R. v. J.G. (1992) (BC CA), 15 BCAC 128, is a decision of our Court of Appeal dealing with a 16 year oldPenticton rioter without any prior criminal record. The Court of Appeal allowed his sentence appeal and imposed a sentence of 22months probation with strict conditions including that he complete 120 hours of community work service. b.

R. v. E.P. 2007 BCPC 159 , 2007 BCPC 0159 is a decision of my brother Judge O’Byrne. The riot in this case was a houseparty that went dreadfully wrong. The rioters refused to disperse and threw bottles, roman candles and Molotov cocktails at the police. The damage incurred was $9,500. While Judge O’Byrne stated he must consider jail for E.P., he ultimately followed Judge Auxier’sdecision in R. v. B. (J.), [1995] BCWLD 052. In that case, B.J., who had a prior conviction for an assault, had participated in the 1994

Vancouver Stanley Cup riot. She did not plead guilty to rioting but rather to charges of break and enter and assault with a weapon. She had spent 6 weeks in pre-sentence custody and was therefore given a sentence of time served to be followed by a 12 month probation period. Judge O’Byrne sentenced E.P. to 18 months probation with a 7 p.m. curfew for the first 10 months in addition to 100 hours of community work service. c. R. v. S.P.G. 2012 BCPC 312 , is a decision of Judge St. Pierre. The youth in that case was 17 years old, drunk and had come downtown after the game.

He kicked the back of a Hummer once and then repeatedly hit another car with his skateboard. S.P.G. had no prior record and was otherwise of good character. He was remorseful and had insight into what he had done. Judge St. Pierre sentenced him to 18 months probation, which included terms to abstain from alcohol and a curfew, both of which were of 3 months duration, and 100 hours of community work service. d. In R. v.

B.G. (28 August 2012), Vancouver Registry 22591-1-V, Unreported, Judge Wingham sentenced B.G., age 17 and without any criminal record, to an intensive support and supervision order for 18 months, a condition of which included 120 hours of community work service. This young person’s only involvement had been to enter London Drugs and steal cosmetics and cigarettes. e. In R. v. R.L.J. (17 September 2012), Vancouver 22585-1-V, unreported, a decision of Judge Romilly, the youth was 17 years old and had no prior criminal record. She went into a Blenz coffee store and stole a syrup bottle and some coffee sleeves.

As she left, she threw the bottle back towards the store. She turned herself in to police prior to being charged. Judge Romilly sentenced her to probation for a period of 12 months with strict conditions including 125 hours of community work service. [ 59 ] Other decisions brought to my attention which have been issued since the above noted decisions are: a. In R. v. C.S.W. and D.J.S.C. (22 October 2012), Vancouver 22587-2-VC 22590-1-V, unreported, Judge Romilly sentenced two young men for shattering a glass window in a store and at a bank and indulging in looting. No alcohol seems to have been involved.

Judge Romilly said their participation could not be described as minimal. They seemed very conscious of the fact they were taking

part in the mayhem. The judge concluded this was a once-in-a-lifetime aberration. He imposed an 18 month probation order which included a curfew (for six months), a letter of apology to the Bank of Montreal and Black and Lee Formal Wear as well as 100 hours of community work service. b. In R. v. S.P.G. 2012 BCPC 312 , Judge Rae sentenced a youth who was almost 17 years old in June 2011 and who was personally involved in damaging a police vehicle parked on Nelson Street and eventually helping others overturn it.

He then went to The Bay where he threw fuel into a fire started inside a BMW which resulted in the destruction of the car. He had a prior minor record. Judge Rae concluded that his offences constituted exceptional circumstances and therefore a six month deferred custody and supervision order was appropriate, to be followed by 18 months probation. The probation order included an area restriction and 150 hours of community work service. VICTIM IMPACT [ 60 ] The effect A.J.’s actions had on the employees of the London Drugs store must not be forgotten or minimized.

There were seven victim impact statements provided but I will only refer to two of them. A loss prevention officer who was working at London Drugs that night wrote in her victim impact statement that initially her anxiety level was fairly low and because she thought the security gates at the front of the store would hold. However, she and others who hid in a small security office in the basement were able to watch events unfold on camera. She wrote this was probably the most fearful event of her life as she was not sure what the rioters’ intentions were.

Other people in the room with her were frantically texting loved ones. Some of them cried because they did not know if they would make it out of the store alive. She noted: …We were prepared for the worst case scenario, which were the rioters coming down into the loss prevention room to attack us. Thankfully that did not occur, but it made everybody’s anxiety levels go to the extreme. We continued to watch the group of individual’s raid and loot our store. It was a surreal experience that you would think only happens in the movies. People were acting like wild animals.

The majority of the workers of London Drugs were honestly scared for their lives… [ 61 ] Another loss prevention officer wrote that during the riot his family and friends were very concerned about his well being. They were afraid that he would be hurt. In particular, his parents were fearful that the rioters would physically harm him. ANALYSIS [ 62 ] The Crown submits the following analytical framework (taken from R. v. Dickinson as modified for youth cases by R. v. B.G. ) should be applied to the sentencing of A.J.

The Crown says the court ought to consider the following factors: 1. the offender’s degree of participation, 2. context of the riot generally, including the impact of the victims, 3. the offender’s personal circumstances, and 4. the principles of sentencing set out in the YCJA .

[63] The following principles have been established in the case law dealing with sentencing a person for participating in a riot:

a) Riots by their very nature are a serious breakdown of law and order and thus participating in a riot is a serious offence;

b) In a riot, an individual’s actions are inextricably linked to the actions of other rioters. Thus an individual’s culpability must beconsidered in the context of the riot as a whole;

c) For adults general deterrence and denunciation are the primary sentencing considerations for participation in a riot. As such, a jailsentence, even for a first time offender, is appropriate;

d) For youths the principles of the YCJA require the youth to be held accountable for his conduct with a sentence that is proportionate tothe seriousness of the offence. [64] In considering the sentence proposed by the parties for A.J., I must take into account the principles which underlie the YCJA. In particular those set out in s. 3(

a) and (b). I have also had the benefit of the following materials, which I reviewed and considered: a. a pre-sentence report prepared by a youth worker; b. admissions of fact; c. a Crown book of sentencing documents which contains still photos of A.J.’s involvement in the riot and victim impact statements; d. a Crown book of sentencing authorities as well as a case submitted by the defence – R. v.

Cacnio 2012 BCPC 314 , 2012BCPC 0314; e. a letter from one of A.J.’s former teachers and an outline of A.J.’s background and volunteer activities as well as his work schedule; f. video footage of the riot, some of the video clips provided contextual footage of what was occurring near the live site as early asbetween 6 and 7 p.m. and later in the evening in front of The Bay and London Drugs.

Other video clips actually captured images of A.J.at the live site and later near The Bay and on the two occasions he went into London Drugs. [65] The Crown has acknowledged that mitigating factors to be considered in this case are: early guilty plea, expression of remorse,positive pre-sentence report, and the positive steps taken by A.J. since his participation in the riot on June 15. [66] The aggravating factors are: the scope and scale of the riot as a whole. It must be remembered that participating in a riot asdefined in the Criminal Code does not require the commission of a separate criminal offence.

Moreover, participating in a riot is aserious threat to an orderly society. [67] In A.J.’s circumstance I find that his thefts from London Drugs, which in the circumstances constituted looting, was not a spurof the moment activity. A.J. went into London Drugs after the front glass doors and steel security gate had been broken down by others. However, A.J. went in not just once, but twice. The second time he went into London Drugs he did not simply dash in and out from theGranville Street level but ran downstairs to the mall level and through part of the store.

The fact that the items A.J. stole were of lowvalue is not a mitigating circumstance in this sentencing. [68] A.J. made a conscious choice to remain in the downtown core after the riot began. In fact he admitted to the youth worker whoprepared the pre-sentence report that he recalled hearing people in the crowd begin to talk about rioting. He also admitted that he turneddown a friend’s offer to leave for (redacted). He said he did that, so that he could see what was happening.

It is precisely this attitudeand choice made by A.J. (and by others who chose to remain in the downtown core) that contributed to the difficulty the police had incontrolling the rioters. [69] A.J. also made a choice when he decided to enter and steal items from the London Drugs store. He had been drinking,apparently to excess, during the game but that does not excuse his participation in the later looting of London Drugs. By his ownadmission his drinking ended several hours before he went to London Drugs at about 10 p.m. [70] A.J. has had the benefit of a stable and loving home and supportive parents.

However, after the fact, he made another choice,namely, not to tell the truth. He lied to his parents when they asked him about his involvement in the riot. His mother was devastatedwhen she learned of his participation through a work colleague. To their credit his parents have continued to support him through theprocess leading to this sentencing hearing.

A.J. now realizes the embarrassment and shame associated with his actions. [71] After considering all the circumstances of this case and the applicable legal principles, I am satisfied that the sentence proposedby the Crown is, an appropriate and measured response to A.J.’s offending behaviour. It is important for A.J.’s rehabilitation andreintegration that the sentence I impose provides meaningful consequences for his offence. Accordingly, I am imposing an 18 monthprobation order with the conditions set out in Appendix A to this decision. _________________________ The Honourable Judge M. F. Giardini

Provincial Court of British Columbia Appendix A 1. You shall keep the peace and be of good behaviour. 2. You shall appear before the youth justice court when required by the court to do so. 3. You shall report in person and within 48 hours to a Youth Worker at (redacted) Youth Probation, located at (redacted), B.C. and thereafter as and when directed. 4. You shall reside at a residence approved of by your Youth Worker and obey the rules and regulations of the home. You shall not change that residence without first obtaining the written consent of your Youth Worker in advance. 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 are not to enter the area of Vancouver, B.C. bounded by Pender Street to the north, Davie Street to the south, Abbott and Pacific Street to the east and Thurlow Street to the west, except with the written permission of the Youth Worker, to be obtained in advance and carried on your person, and then only while in the direct and continued company of D.J., or M.J. or G.J. 7.

You shall attend, participate and complete any counselling as directed by your Youth Worker, any such counselling must be completed no later than 60 days before the end of this probation order. 8. You shall abstain from the possession and consumption of alcohol and non-prescription drugs. 9. You are not to attend at any London Drugs store in the province of British Columbia. 10. You are not to possess any weapons as defined in the Criminal Code . 11. You shall complete 100 community work service hours to the satisfaction of your Youth Worker.

The community work service hours must be completed no later than 60 days before the end of this probation order. 12. You must prepare a letter of apology to the satisfaction of the Youth Worker addressed to the president of London Drugs. This letter must be delivered to your Youth Worker no later than February 28, 2013, for delivery to London Drugs.