R. v. Markiewicz Date:, 2016 BCPC 378

Citation: R. v. Markiewicz Date: 20161116 2016 BCPC 378 File No: 238513-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. JAKUB MARKIEWICZ EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE L. BAKAN Counsel for the Crown: B. Wolfe Counsel for the Defendant: R. Kearns Place of Hearing: Vancouver , B.C. Date of Hearing: November 16, 2016

Date of Judgment: November 16, 2016 [ 1 ] THE COURT: These are my reasons for judgment. On August 10th, 2016, I found Mr. Markiewicz guilty on Counts 2 and 4 of Information 238513-1. The first count was committing an assault on March 16th, 2015, upon Roman Shestakov with a weapon, a log, contrary to s. 267 (

a) of the Criminal Code . The second count was committing an assault on March 24th, 2015, upon Willem Josef Rolleman contrary to s. 266 of the Criminal Code . [ 2 ] Both victims were surveyors performing their work duties at the time of these assaults. Mr. Markiewicz had his face masked and did not identify himself to the victims. He states his actions arose in protest to the expansion of the gas pipeline in Burnaby, British Columbia. While Mr. Shestakov was employed by a contractor that did work on the pipeline, Mr.

Rolleman worked for the GVRD and his work had nothing to do with the pipeline. [ 3 ] I outlined in detail the circumstances of both offences on August 10th, 2016, and will therefore only provide a

summary of the assaults. [ 4 ] Dealing with the circumstances of the assault against Mr. Shestakov on March 16th, 2015, this was recorded on a video which was entered as an exhibit at trial. Mr. Markiewicz approached Mr. Shestakov with a shirt masking his face, holding a fairly large log above his head. [ 5 ] Mr. Shestakov was standing next to a transit station, which is a piece of survey equipment. He asked Mr. Markiewicz in a calm polite tone to, "Stay away from me, please." Mr. Markiewicz replied, "Nein." Mr. Shestakov then placed his hands on the log over Mr. Markiewicz's hands and Mr.

Markiewicz then put his hands on the transit trying to change its direction. Mr. Shestakov was holding the transit so it did not fall. Mr. Markiewicz continued his efforts to push the transit at the same time pushing his body against Mr. Shestakov's. He did drop the log, but continued to push the transit station and Mr. Shestakov while doing so. [ 6 ] He continuously yelled profanities and demanded that Mr. Shestakov leave the area, in an increasingly aggressive tone. Mr. Markiewicz said his intent was to disrupt the survey work as a form of protest. He understood Mr.

Shestakov was working for a contract or working on the pipeline because of the logo on his clothing. Mr. Markiewicz did acknowledge that both Mr. Shestakov and Mr. Rolleman "were just doing their jobs". [ 7 ] In regards to the assault against Mr. Rolleman on March 24th, 2015, was approximately a week and a half after the assault against Mr. Shestakov, Mr. Markiewicz approached a survey crew that Mr. Rolleman was part of. Mr. Markiewicz's face was covered by a black bandana and his head was covered by a black hood.

None of the crew had logos on their clothing or equipment that gave any indication they had anything to do with the pipeline. They were, in fact, performing road survey work for GVRD. [ 8 ] Mr. Markiewicz first approached Mr. Liyanage who was another member of the survey crew. Mr. Liyanage asked if he could help Mr. Markiewicz with anything. Mr. Markiewicz did not respond, but walked away, filming Mr. Liyanage as he did so. He then approached Mr. Rolleman coming very close to him with his camera raised while he was still masked and unidentified. [ 9 ] Another member of the survey crew saw Mr. Markiewicz kick Mr.

Rolleman's leg, which I found was the first physical contact between them, and afterwards they started punching each other. This witness then saw Mr. Markiewicz kick Mr. Rolleman several times. Mr. Rolleman turned away from Markiewicz with his back to him as he retreated and Mr. Markiewicz kicked him in the back of the leg as he retreated. [ 10 ] Both victims testified at trial and provided victim impact statements. Fortunately, Mr. Shestakov was not physically injured. Mr. Rolleman received some bruising. Both, however, were emotionally shaken by what occurred. They were also worried Mr.

Markiewicz or those he associated with would disclose their identities on social media and, after these events, some of Mr. Shestakov's personal information was placed on a Facebook page related to the protest. His name, photo, and employer were also listed. He was very stressed and concerned for the safety of his family and himself. [ 11 ] In terms of Mr. Markiewicz, he was 19 years old at the time of these offences. He had no criminal record nor had any finding of guilt been made against him at the conclusion of this trial. He lived with his parents and I understand continues to do so.

He attended high school in the Lower Mainland and has plans to obtain a degree in Photo-Journalism. He self-describes as a filmmaker and photographer and examples of his work were entered at trial. [ 12 ] On June 30th, 2016, prior to the disposition in this case, Mr. Markiewicz was found guilty by my brother Judge Rideout, of uttering threats to cause death or bodily harm contrary to s. 264.11 of the Criminal Code . This offence occurred on May 1st, 2015, after the offences I found him guilty of. Judge Rideout gave him a conditional discharge with nine months' probation.

I was not given a transcript of the proceedings of this trial, but Crown counsel correctly advised me during his sentencing submission that the threat was uttered at police during a May Day protest and Crown advised the court that the police officer's behaviour prior to Mr. Markiewicz uttering the threat was, in his words, "not great." [ 13 ] On August 10th, 2016, I requested a Pre-sentence Report (PSR) and stated on the record, I was requesting one because of Mr. Markiewicz's youth in the adult system and his lack of a criminal record.

Neither the Crown nor defence counsel that conducted the trial was present on August 10th, 2016. Both had sent agents. I requested that the report be prepared to assist me in determining disposition. [ 14 ] On September 21st, 2016, I received correspondence from the probation officer that was to prepare the PSR. The letter was copied to Crown and defence. The letter stated Mr. Markiewicz did not wish to participate in the PSR process.

The letter further advised he had repeatedly told the probation officer that he reported to on Judge Rideout's probation order, that he did not wish to participate. [ 15 ] The probation officer assigned to write the PSR met with Mr. Markiewicz in the presence of his lawyer and father on September

16th, 2016. He advised again he did not wish to participate in the PSR process. The probation officer gave him a further appointment for an interview on September 20th, 2016, in the event that he reconsidered this. He did not show up for the appointment or cancel it.

Defence counsel says there was confusion over who was to do this and, as I earlier stated, as an officer of the court, this is something defence counsel should have made sure took place as it is a waste of court resources and public resources when it is clear no one is going to show up, and there has not been the courtesy of advice on this. [ 16 ] In addition to the two letters from probation officers, relied on by the Crown, I received a number of letters and testimony from persons called by defence counsel, on behalf of Mr. Markiewicz. [ 17 ] The

summary on sentencing positions is as follows. The Crown states the sentence imposed should place denunciation and deterrence ahead of rehabilitation. It seeks a 10-day prison sentence for each offence to be served consecutively plus two years' probation with conditions that include no-contact and no-go orders, and a DNA order for a primary designated offence in regards to the assault against Mr.

Shestakov, and a 10-year weapon prohibition. [ 18 ] The defence seeks a conditional discharge with probation for 12 to 18 months on less stringent conditions than those suggested by the Crown. [ 19 ] The Crown states that despite Mr. Markiewicz's relative youth in the adult system and lack of criminal convictions, a short jail sentence is necessary for deterrence and denunciation. The Crown strongly opposes a conditional discharge primarily on the ground it is contrary to the public interest.

While the conditional discharge he received on June 30th, 2016, was for an offence committed after the subject offences, Crown submits that the later offence is indicative of Mr. Markiewicz's lack of good character. The case law does support that this is open to me to consider. [ 20 ] The Crown states Mr. Markiewicz threatened to stab a police officer in the May 2015 offence, although, again, he acknowledged that the police conduct in the matter left much to be desired. Crown states that at the time of the May 2015 offence, Mr. Markiewicz was on bail and he was also on bail at the time Mr.

Shestakov was assaulted. [ 21 ] The Crown submits the assaults in question constitute political violence which must be denounced and, without a sentence of imprisonment for both offences, neither Mr. Markiewicz or like-minded persons will be deterred from disregarding the rule of law which is fundamental to the functioning of our society. The Crown further submits Mr. Markiewicz has shown no remorse and that he indicated his contempt for the justice system during parts of his testimony and his refusal to participate in the PSR process. [ 22 ] The Crown, again, referenced a letter from Ms.

He, a probation officer, and this letter was dated September 28th, 2016. Mr. Markiewicz reported to her at the time of that letter five times pursuant to Judge Rideout's probation order. In the letter, she states [as read in]: Mr. Markiewicz presents with, in this writer's opinion, extreme contempt and disrespect for the laws and any agents tasked with upholding these laws. Mr. Markiewicz refuses to engage in simple conversation confirming factual information such as his community work service placements, his address, and other common facts. [ 23 ] She goes on to state: Mr.

Markiewicz presents with a significant attitude and a better-than-thou demeanour during his appointments with this writer. [ 24 ] This was also the same issue when Mr. Markiewicz was reporting to the bail supervisor prior to his sentencing. To further highlight Mr. Markiewicz's disregard for the court, he refuses to sign legal documents with his legal name, instead signing them as "Unceded Land." [ 25 ] The defence, contrary to the submission of Crown, seeks a conditional discharge with a period of probation to follow of between 12 to 18 months.

He submits that some of the probation terms requested by Crown, in his words, "trench on the offender's Charter rights." He notes that Judge Rideout gave Mr. Markiewicz a nine-month probation term for uttering death threats as he saw that rehabilitation was a possibility. I do state that the facts of the case Judge Rideout dealt with as related to me are different than those before the court today. [ 26 ] One of the tests for a conditional discharge is that it must be in the offender's best interest and defence states that as Mr.

Markiewicz plans to attend university with a goal of receiving a degree in Photo-Journalism that a conditional discharge is in his best interests. [ 27 ] In mitigation, he notes Mr. Markiewicz's youth, that Mr. Shestakov was not physically injured and that the offence against Mr. Shestakov constituted the mildest form of assault with a weapon. He submits that the injuries to Mr. Rolleman were minor. He states that Mr.

Markiewicz had just reached legal adulthood at the time of these two offences. [ 28 ] Contrary to the Crown's position, defence states the events were not well planned and happened in the passion of the moment, going further than they should have. He said his client was uncomfortable with the PSR process and states there was confusion over whether he or his client were to advise he would not return on the further date scheduled. Mr.

Kearns further submits that his client is not, in his words, oppositional to rehabilitation. [ 29 ] He stressed positive factors of his client's character as indicated by family ties and support, his successful completion of community service work with indigenous women, volunteer work on the Downtown Eastside including landscaping and raising a totem pole. Letters were filed and testimony was given by friends attesting to this work and also to his compassion and support for people in

very trying circumstances on the Downtown Eastside. [30] Samples of his work that he had done for social justice projects were submitted as were articles he had written opposingexpansion of the pipeline. [31] A friend whose mother owns a notary office was called and gave character evidence, although the mother, who was the notary,was not. He advised that Mr. Markiewicz has great computer skills and has been of great assistance digitizing materials in the notaryoffice. [32] Also before me was an affidavit filed May 20th, 2015, by Mr.

Markiewicz's father which was prepared for the purpose of anearlier bail application. In that affidavit, Mr. Markiewicz Sr. states his son is two or three courses short of completing high school, but atthat time had been provisionally accepted at Emily Carr University. He deposes to his son's talent as a photographer and visual artist andattached confirmation of youth programs he had attended and awards received in Arts and Journalism when he was a teenager. [33] One of his character references was a person who had known him six months and is a Simon Fraser University student.

Thischaracter witness reference written October 5th, 2016, states [as read in]: His time in the justice system has upset his life and hampered his progression in his studies. He is an outspoken advocate for theenvironment and protecting his community from the adverse effects of pipelines and takes stands to support sexual assault victims. Heis a supporter of many First Nations activists as they seek reconciliation. [34] Again, many of the character references such as the one just referenced were from friends and/or those that supported hisprotest activities. One reference described Mr.

Markiewicz as: ... a well-known environmental activist since 2014 when he protested the Trans-Mountain Pipeline with a creative and courageoustactic. Considering his age, the fact he has taken such stand on incredibly important issues, the sovereignty of indigenous lands and thehealth of the ecosystem being poisoned ... instead finds himself here. [35] A close friend who states she has known him for eight months states [as read in]: Jakub is someone who cares for those around him deeply, but is still learning how to express it. He is caring and kind and has a deepsense of right and wrong.

Still learning and growing, Jakub has been shoved into situations of conflict and confrontation from a youngage and for no other reason that he felt obligated to document what was happening because he felt it was not right. He does not deserveto be punished for what happened, but deserves the space to continue to grow up. [36] One letter that was one of the more objective, was from a landscape supervisor at a landscape company where Mr. Markiewiczhad worked last fall. She describes him as a quick learner with a good eye for detail.

She stated he had a great rapport with individualcustomers and volunteers that worked in the Downtown Eastside. He spent over two hours doing volunteer work in a garden known asGod's Little Garden at a mission on Hastings Street. [37] Most of the character references downplayed Mr.

Markiewicz's responsibility for being before the court and blame "thesystem." The letters lack objectivity and it is not clear to me that the authors of these references were aware of the assaults on theworkers in this case. [38] During defence counsel's submission, I mentioned I had heard thus far, no expression of remorse nor any regret in regards to theassaults on the two workers. Mr. Kearns said that Mr. Markiewicz wished to address the court. Mr. Markiewicz did so and, in my view,his words were contrary to Mr.

Kearns' assertion that his client was not oppositional to rehabilitation and could be channeled positively. At times during Mr. Markiewicz's evidence at trial, and in his comments at sentencing, his presentation at times was immature andarrogant. He is and does come across as an intelligent and articulate young man.

His actions actually deflect from causes he advocatesfor as they make him, rather than the cause, the centre of attention. [39] Rather than accepting responsibility and regret for assaulting the surveyors despite his acknowledgment that these workers"were just doing their job," he focused on the negative impact his actions have caused him. He noted he was before the court instead ofat university writing midterms. He states the court process has caused him PTSD and restricted his rights and freedom.

He expressedconcern that if he was banned from attending Burnaby Mountain as requested by Crown, he could not attend university at the SFUBurnaby campus. [40] Despite his efforts to restrict the workers' activities by interfering with their liberty and security, he said that some of theprobation conditions Crown has sought trample on his Charter rights. Again, he expressed no remorse or regret to the stress and anxietyand damage caused to the workers he assaulted despite having the opportunity to read their victim impact statements and hear theirtestimony in open court.

He remained defiant and convinced that his view of the political end justified his tactics which included assaultson two workers he did not know while masked, regardless of the consequences or potential consequences to them or himself. [41] In terms of the sentencing objectives that the court looks at, the purpose and principles of sentencing are codified in s. 718 ofthe Criminal Code.

The fundamental purpose of criminal law and sentencing in particular is the protection of society as set out in R. v.Lyons, (SCC), [1987] 2 S.C.R. 309 at 329. [42] There are five factors the courts consider when crafting a sentence that will protect society. Firstly, rehabilitation of the

offender; second, deterrence of the offender from committing further crimes; third, the deterrence of others; fourth, isolation of the offender from the public; and fifth, denunciation.

The emphasis and what the court stresses on each of these factors depends both on the crime and the circumstances of the individual before the court. [ 43 ] Generally, where a young person is before the court without a record, judges give the least restrictive disposition and rehabilitation is given the most weight, especially where, as here, the Crown proceeds summarily. [ 44 ] Defence counsel referenced case law where persons that assaulted workers who were conducting their work in the normal course of their duties, were before the court. In R. v.

Biemans , 2012 BCPC 95 , the accused had been charged with using a vehicle as a weapon to assault a traffic worker. He was convicted and, as here, the Crown proceeded summarily. The offender was before the court with no record as he had successfully completed terms of a prior probation order on a conditional discharge. [ 45 ] Judge Wood concluded the offender, despite this, was not remorseful nor did he accept responsibility for committing the offence for which he had been convicted.

He states: One proceeds with the sentencing exercise with a different mentality and a different sense of confidence about proceeding down particular pathways when ... expressions of remorse and regret and indications of insight into the offending that is at issue. I am sad to say that I did not hear those from Mr. Biemans. [ 46 ] Judge Wood considered that the offence occurred on a construction site which was controlled by a flag person indicating where vehicles should not go. The offender intentionally hit a flag person with his vehicle.

In paragraph 42, Judge Wood noted that: Workers ... carry on their tasks within prohibited areas, doing what they do in circumstances where they are vulnerable to be struck, run over, injured, or killed if they are not protected. That is why the boundaries are drawn, that is why the traffic control people raise their paddles to say "no entry".

The object, the purposes of this [are] plain and obvious: it is to create [a] safe working [condition] for those workers. [ 47 ] The judgment goes on to state why traffic control persons are "uniquely vulnerable" and why they need to know that their lives and safety are not to be put in jeopardy by persons acting deliberately and without justification. I state that Judge Wood's comments are applicable to the surveyors that were victims in this case.

An assault with a motor vehicle, as noted by defence counsel, is certainly more serious than what occurred here, but the same principles apply. [ 48 ] Vulnerable workers working outdoors often on busy roads or in isolated areas need to know that the court does not condone behaviour such as that perpetuated by Mr. Markiewicz. Such crimes need to be denounced in both general and specific deterrence. [ 49 ] I agree with many of the aggravating factors cited by Crown.

I have not, however, considered the alleged breaches of bail or the subsequent offence for which he was granted a conditional discharge as aggravating in this case. While these may, in law, be considered in regards to character, I do not have Judge Rideout's reasons for sentence or the transcripts before me. In the recent case of R. v. Kidd , 2016 ONCA 757 , the court also held that lack of remorse is not an aggravating factor in regards to the length of sentence.

I will discuss this later, however, in applying the test on whether or not to grant a discharge. [ 50 ] In terms of the mitigating factors, they are Mr. Markiewicz's relative youth in the adult system, his lack of criminal convictions, and the fact that he has done some volunteer work that is of benefit to society. [ 51 ] I unfortunately and regrettably, disagree with defence submissions that the offences were committed in the passion of the moment and went further than they should have or that they were not well planned. Mr.

Markiewicz took the time to mask his face before approaching both victims and this is a very frightening circumstance for people in any situation. [ 52 ] In terms of the aggravating factors, I find aggravating Mr.

Markiewicz expressed antagonism to the justice system as indicated at times during his testimony, although I will state that he was respectful to the court in general and to the court process; his masking of his face; his failure to identify himself; the vigilantism which was inherent in the offences, basically taking the law into his own hands and deciding what is right and what is wrong; in respect to Mr. Rolleman, being very reckless in approaching him in the first place given there was no evidence he even worked for a pipeline.

He was the aggressor against two unknown unarmed persons who were in the course of their duties and whose work he wanted to disrupt. [ 53 ] The Crown's submission is that it is necessary to give Mr. Markiewicz a term of imprisonment in addition to probation and that Crown submits that given his pattern of behaviour, a conditional discharge would be contrary to the public interest. The defence states he is young, capable of rehabilitation, and comes before this court without a record.

A conditional discharge with probation is sought by defence. [ 54 ] I agree with both Crown and defence that the mitigating factors here are Mr. Markiewicz's relative youth and his lack of prior criminal convictions. In addition to the mitigating and aggravating factors, the Criminal Code states that one convicted of a criminal offence should not be deprived of liberty if there are less restrictive sanctions available.

Reasonable sanctions that are an alternative to imprisonment should be considered as a sentence must be proportional to what the offence was and the degree of responsibility of the offender. [ 55 ] I do find that the level of the assaults was on the lower end of the spectrum and I note that is why the Crown likely proceeded summarily with both. After considering all the factors, I am not going to impose a sentence of imprisonment. [ 56 ] I will next consider the request of defence for a discharge. For an absolute or conditional discharge to be granted pursuant to s.

662.1 of the Criminal Code, an offender must meet the conditions precedent set out in the case of R. v. Fallofield, (BC CA), [1973] B.C.J. No. 559 (B.C.C.A.). The court must firstly consider that it is in the best interests of the accused that he bedischarged. The court then must further find that a grant of discharge is not contrary to the public interest. [57] I find that a discharge would certainly be in Mr. Markiewicz's best interests, but in terms of the second condition, the court mustlook at whether it is necessary to deter the offender from future offences.

The public interest is deterrence of others and deterrence of theoffender. [58] The evidence and character references indicate Mr. Markiewicz has some attributes of good character. He has done volunteerwork. He has a strong sense of social justice, but he expresses no remorse or regret for assaulting two workers working in a lawfulmanner at their jobs. Rather, he focused on the negative consequences his actions caused him. In this case, I find a discharge is contraryto public policy.

It is necessary to enter convictions to deter him from future offences and there is a step-up principle which means, infuture, generally any sentences, if there are further breaches at law, will be dealt with more harshly. A conviction is also necessary forgeneral deterrence. [59] In sentencing, the court is mindful that a fit sentence, in addition to being tailored to the individual before the court, must alsoreinforce the rule of law and the maintenance of a just and safe community for all people including the workers of this province.

Peaceful protest is a cornerstone of democracy, but violent protest threatens the democratic process and the liberty and security of allwithin society. Workers of this province are entitled to conduct their jobs in a safe environment free of threats or acts of violence. [60] While the assaults did not cause serious injury, nor do I find they were intended to, they had the potential to escalate and causeinjury not only to the victims, but to Mr. Markiewicz, members of the public, and other people in the vicinity. In one incident, membersof the public were engaging in commentary with Mr.

Markiewicz and I recall one woman said, "This is not the way to deal with this". There is a political process. You can get involved with your community peacefully and lawfully put forward your views. [61] In

summary, after considering the mitigating and aggravating factors coupled with the sentencing principles outlined, I amgoing to impose 15 months' probation on conditions which I will read out subsequently. [62] The assault with a weapon in regards to the offence against Mr. Shestakov is a mandatory designated offence which means thatyou must provide a DNA sample. You must therefore present yourself to the RCMP detachment in Burnaby for that purpose and there isa date in terms of letters of the alphabet for that. [63] MR. WOLFE: We have a non-custodial

schedule -- [64] THE COURT: Yes. [65] MR. WOLFE: -- where if it's Burnaby RCMP, it's at the Deer Lake -- [66] THE COURT: Wednesdays. [67] MR. WOLFE: -- Avenue and Monday to Friday, 8 a.m. to 4 p.m. So it seems to me you're -- [68] THE COURT: Monday to Friday. [69] MR. WOLFE: -- going to be to Tuesday. That's the chart I have in front of me. [70] THE COURT: All right.

So if, by next Wednesday, you can present yourself to the RCMP detachment, front desk, policeinformation counter, at 6355 Deer Lake Avenue, Burnaby, B.C.; and also I impose a 10-year weapon prohibition pursuant to theCriminal Code in regards to the offence against Mr. Shestakov. [71] In terms of the probation conditions, you are to keep the peace and be of good behaviour. You are to appear before the courtwhen required to do so by the court.

You are to notify the court or your probation officer in advance of any change of name or addressand promptly notify the court or probation officer of any change of employment or occupation. [72] You are to report to a probation officer by 4:00 p.m. today in person at 275 East Cordova Street, Vancouver, British Columbia,and report thereafter as and when directed by your probation officer in a manner directed by your probation officer in regards toperformance of community service work. [73] You are to sign the probation order with your legal name in a legible manner. [74] Upon your initial appearance, you must provide to your probation officer your current residential address and telephone numberand you must not change them without the prior written consent of your probation officer. [75] You must have no contact directly or indirectly with the following persons: Nicole Blackall, Xiao Feng, Eraj Liyanage, WillemRolleman, Roman Shestakov, or Daniel Brooks, and you must not post, publish, or disseminate any photographs of them or theirworksites if known to you, information about the address or location of their work or residence or that of their immediate family, in printor on Facebook or other social media or orally. [76] You must not attend at Nicole Blackall, Xiao Feng, Eraj Liyanage, Willem Rolleman, Roman Shestakov, or Daniel Brooks'residence, place of, location, employment, or recreational facility if known or which becomes known to you. [77] You must not mask, colour, or disguise your face while attending any protest or other assembly of persons, lawful or otherwise. [78] You must not mask, colour, or disguise your face while filming, videoing, taking photographs, or otherwise recording anyperson or place, and you must stay at least 10 metres away from any person that you film, video, photograph, or otherwise record unless

you have their express consent. [ 79 ] You are not to go within 100 metres of any Kinder Morgan facility or site, including but not limited to 7065 Bayview Drive, Burnaby, B.C., and 7815 Shellmount Street, Burnaby, B.C. [ 80 ] You are not to be within 100 metres of any property or worksite that Kinder Morgan owns, leases, or occupies or that it or its employees, contractors, or agents occupy or are working on or present on, and you must stay 100 metres away from any survey or drilling site or any place where surveying or drilling work is to be done on Burnaby Mountain and for, greater certainty, Burnaby Mountain refers to the following boundaries: Inlet Drive and Barnet Highway to the north and west, Burnaby Mountain Parkway and Gaglardi Way and Broadway to the west, and south, Clarke Road and Barnet Highway to the east, save and except when you are moving continuously on public transit or in a private motor vehicle, or with the permission of your probation officer or this court. [ 81 ] You are not to interfere or obstruct any work performed at any place where surveying or drilling work is or will be occurring. [ 82 ] Under the direction of the probation officer, you must complete 125 hours of community service work within the term of this probation order or as otherwise directed by the probation officer, to be completed to the reasonable satisfaction of the probation officer. [ 83 ] I just want to stress the reporting to the probation office is for the purposes of community service work and you are to give the probation officer information requested about the hours you have done and discuss with him or her what you will be doing for that. [ 84 ] There is also a victim surcharge fee which is $100 for each offence.

So it is $200 and I will hear submissions from Mr. Kearns' about time to pay that. [ 85 ] MR. KEARNS: Your Honour, in our submission, four months would be sufficient -- [ 86 ] THE COURT: All right. [ 87 ] MR. KEARNS: -- time in order to raise those funds. [ 88 ] THE COURT: All right. The normal time is two months.

I will give you four months, sir, because you do have a lengthy term of community service work to do. [ 89 ] I just want to say you have a lot going for you and you can accomplish more by -- from your comments you may disagree, I think you may, but your ending up in jail or being incarcerated if there are further incidents like this are not helpful to yourself. They are not helpful to anyone.

You have a lot to offer in a positive manner and I hope for your sake that you can see fit to put forward your beliefs in a lawful and peaceful manner in the future. [ 90 ] Four months from today is when the victim surcharge fee is due and your counsel will let you know where that can be paid. It is, I believe, in the registry here. [ 91 ] MR. WOLFE: Yes. [ 92 ] THE COURT: Any further comments? [ 93 ] MR. WOLFE: So two things for the court to consider, whether the weapons prohibition was under 109 or 110.

My position would be it is under 109 of the Code . [ 94 ] THE COURT: Okay, so it is under -- and any submission on that? [ 95 ] MR. KEARNS: I have no submissions on that, Your Honour. [ 96 ] THE COURT: It is under 109. [ 97 ] MR. WOLFE: May I further submit to the court that with respect to the time for him to appear for the DNA sampling, that a date certain be actually chosen. [ 98 ] THE COURT: Okay, I thought I said within a week, but you -- it is a date? [ 99 ] MR.

WOLFE: Yes, but if a named date for him to appear -- [ 100 ] THE COURT: Okay, do you have a date within the next week that works best for your client. [ 101 ] MR.KEARNS: Yes, a week from today, your Honour. [ 102 ] THE COURT: All right. So that is-- [ 103 ] MR. WOLFE: The 23rd. [ 104 ] THE COURT: -- the 23rd of November. [ 105 ] MR. WOLFE: Thank you. By? [ 106 ] THE COURT: November 23rd, but before -- [ 107 ] MR. WOLFE: But --

[ 108 ] THE COURT: I guess you have to be there before probably -- [ 109 ] MR. WOLFE: No later than 4:00 p.m. that day. [ 110 ] THE COURT: All right. [ 111 ] THE ACCUSED: I would just like to address a couple of the conditions if that is okay. [ 112 ] THE COURT: Maybe speak to your counsel because, generally, counsel makes the submissions. [ 113 ] MR. KEARNS: There is no further submissions required at this moment, Your Honour. [ 114 ] THE COURT: All right, thank you. [ 115 ] MR.

WOLFE: And just clear on the record that the term of probation applies to both counts on which he was found guilty, correct? [ 116 ] THE COURT: Yes, and it is a term of 15 months from today's date. [REASONS FOR SENTENCE CONCLUDED]