R. v. Cote, 2011 ONCJ 778

COURT FILE No.: Toronto Region Citation: R. v. Cote , 2011 ONCJ 778 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) J. Dick, ) for the Crown ) — AND — ) ) ) Nicholas cote ) D. Charney, ) for the accused ) ) ) ) HEARD: September 30, October 4, 2011 feldman J.: [ 1 ] Nicholas Cote entered guilty pleas to two counts of Mischief Over $5000. He admitted wilfully damaging two police cars, one with a wooden stick, the other by kicking in the window of a second cruiser. The offences were committed during the G20 summit held recently in Toronto. He is before me to be sentenced for his criminal misconduct.

Circumstances of the Offences [ 2 ] Mr. Cote is a political anarchist. A major focus for him during these protests was to participate with others in tearing down a fence put up in downtown Toronto that to him symbolized the separation of elite politicians from ordinary citizens. With that admitted criminal intent, the defendant, accompanied by his fiancé, Analia Nicol, participated on June 26, 2010, initially in a peaceful labour protest that turned violent. He did so knowing the Black Bloc intended to join the march and anticipated their breaking out and moving towards the “hated” fence in order to tear it down.

Mr. Cote brought the black camouflage dress that symbolized this international anarchist group intending to blend in with it, hide his identity and join with it in its destructive intent. [ 3 ] In the decision convicting the defendant, I described the role of that organization that day in this way: “…intelligence briefings indicated that the Black Bloc, an anarchist group, intended to use the march as a foil to disrupt the proceedings, cause mayhem and damage property.

Its tactics involved joining the parade armed with rocks, bricks, poles [and bottles filled with urine] and at a certain point…gather into groups, surround its members with black curtains and light flares, put on masks, move out of the circle area into the parade and then break free to assert its destructive will…in such situations the potential for violence and danger to innocent persons and property was high.” In this case, that was achieved. [ 4 ] Staff Sgt.

Graham Queen, the officer assaulted in his cruiser that was damaged and ultimately burned by the thuggish behaviour of some in this crowd, including the accused, had responsibility to ensure the safety of peaceful protestors from those intent on disrupting the parade. He described how at one point the mood of the crowd changed and it turned on him with extreme violence while he was trapped in his car. One individual caused his windshield to partially cave in, while others “began smashing furiously at the windows of the vehicle”.

He was struck on the head by a wooden pole. [ 5 ] Surveillance videos indicate that the defendant emerged from the crowd and using a wooden pole struck the front of the car three times before running off. On the evidence, I felt it probable, but had a reasonable doubt that Mr.

Cote was aware the officer was in the front seat and, as a result, acquitted him of assaulting a peace officer. [ 6 ] The defendant described in his evidence how he was caught up in the collective moment by an adrenalin rush and felt liberated in behaving as he did in response to his aversion to the ills of capitalist society and in relation to what he had heard about purported abuses by the authorities. [ 7 ] Soon after, he came upon a second police vehicle and in the same frenzied manner kicked in one of its back windows before running off intending while disguised not to be caught, in that regard

an act cowardly in its execution, and one permitting the inference he doubted the moral and legal bona fides of his random vandalism. [ 8 ] Because the evidence did not support the particularized allegations in the Information, I acquitted the defendant of obstructing police by blocking individuals taking photographs of some of the crowd breaking windows of downtown commercial premises. There was no evidence who those individuals were. The Context [ 9 ] Peaceful protest is a necessary outlet for political expression in a free and democratic society.

It is an important part of core constitutional values that protects freedoms of thought, speech and assembly and that enhance civic life. [ 10 ] Mr. Dick, for the prosecution, contends that the gravity of the offences was marked by their commission under cover of an

unlawful assembly that turned riotous. [11] Mr. Charney, for the accused, submits rather that the court should approach sentencing on the basis that the defendantacted alone while part of an initially peaceful protest that happened to turn ugly and during which a small number of individualscommitted random unlawful acts. He agrees there was some collective will to damage police cars and that this context is aggravating. [12] I am mindful in reviewing relevant authorities that Mr. Cote is not being sentenced for participating in a riot, defined inCode s. 64 as “an unlawful assembly that has begun to disturb the peace tumultuously”. (

a) Unlawful Assembly [13] To establish the factual basis for unlawful assembly, s. 63(1) requires that there be three or more persons involved with acommon purpose assembled in such a manner as to cause persons in the neighbourhood of the assembly to reasonably fear they willdisturb the peace tumultuously or needlessly provoke other persons to disturb the peace tumultuously. Causing any actual disturbance isnot required, only reasonable fear of it. [14] As well, under s. 63(2), an initially lawful assembly may become unlawful by such conduct during the course of theassembly. [15] Mr.

Cote admitted bringing a disguise in order to blend in with the Black Bloc in order to provide cover for what I infer onthe evidence he anticipated might be the infliction of property damage by some participants amidst an otherwise peaceful protest. Hechose to participate. [16] It is a matter of common sense to conclude that the common purpose of the Black Bloc and those others who attachedthemselves to its tactics, including the accused, as it ran down the street smashing property, caused fear in reasonable people lawfullyengaged in protest and disturbed the peace of the city. (

b) Was there a Riot? [17] In R. v. Berntt (1997), (BC CA), 120 C.C.C. (3d) 344 (BCCA), at para. 26, the court held that atumultuous disturbance requires an atmosphere of actual or constructive force or violence. In R. v. Brien (1993), (NWT SC), 86 C.C.C. (3d) 550 (NWTSC), at para 28, it was held that to establish the existence of a riot requires that there be actual orthreatened force and violence, in addition to any public disorder, confusion and uproar. [18] In this case, the mayhem caused by mass vandalism, violence and the air of threatened aggression created public disorderand forced the police to retreat.

The elements of a tumultuous disturbance were evident. [19] I will not sentence the defendant as if he were found guilty of breaches of these sections but will view his individualmisconduct in the disturbing context that prevailed in downtown Toronto on June 26 and in which he chose to express himself bydamaging property.

Impact on the Community [20] Toronto Chief of Police William Blair filed a letter at this proceeding, as he has done and as has been admitted in other G20summit cases where convictions have been registered, to inform the court of the contextual impact of damage wrought by the criminalacts of some protestors. This letter was relied on by Weinper J. in arriving at an appropriate sentence in R. v. Catenacci, unreported, May13, 2011 (Ont.

C.J.) by placing that offender’s misconduct in a larger community context. [21] Chief Blair wrote: [22] “Not only were police officers attacked and police vehicles set on fire, honest, law abiding property owners and merchantshad their businesses interrupted, their premises vandalized and their property destroyed, damaged or stolen – many times in front of theirown eyes. A total of 118 occurrences were reported as a result of G20 violence, including arson, assault, break and enter, 52 mischief toproperty and one robbery.

The trauma caused by such mindless acts of wanton violence on individuals and the community as a wholecannot be measured. No doubt the reputation of Toronto has suffered greatly. The financial cost of all property damage has beenestimated at approximately two million dollars.” Circumstances of the Offender [23] Mr. Cote was 19 years old at the time of these offences. He is presently on probation after receiving a conditionaldischarge on July 5, 2010 for uttering threats.

His parents divorced when he was 12 and he has lived at various times with each of them. [24] He has clashed with his father over his political views but is welcome to live with him in Ottawa. His father believes hisson is a “sweet kid with a good soul”. His aunt and uncle with whom he presently lives in Scarborough feel he has a lot of potential. Herelates reasonably well with his siblings. He is fortunate to have family support. [25] Mr. Cote says he was the victim of bullying in school and dropped out in grade 10.

Since then, he has been caught up withfringe political ideas on polar ends of the political spectrum, initially advocating far right, racist principles, later moving to the left byembracing equality, ecology and native rights. He is philosophically an anarchist opposed to social and political hierarchies. [26] The defendant has a fiancé and a young son. To his credit, he has always sought employment and has had numerous short-term positions in the fast food industry.

Impressively, he achieved his high school equivalency certificate in August 2010. [27] Of concern, he told the probation officer he “does not regret his actions as they cannot be undone”, indicating limitedremorse. However, he explained in his evidence that he has learned that from now on it is best to effect political change peacefully.

[28] I was impressed with the defendant’s letter to the court. It was thoughtful and personally revealing, from which I infersincerity. It pointed to his idealism, sometimes based on instinct more than knowledge that moved him along the continuum of fringepolitics. [29] He described his fascination with radical left wing politics. He was direct in describing his misconduct at the G20 as thebiggest mistake of his life in attempting to “somehow spark the beginning of a new era here in Canada” and change society for the better. [30] Mr.

Cote accepts that because he and others caused substantial property damage and perpetrated violence on innocentmembers of the public, they set off a chain reaction of arrests and injury that he says torments his thoughts and feelings. He regrets theimpact of his actions on so many people, including his own family, fiancé and son with whom his time was curtailed by restrictive bailterms. He would like to apologize to Staff Sgt. Queen in person or at least by letter. I would encourage him to do so. [31] In my view, the clarity of this letter indicates a degree of insight and maturity that bodes well for the future.

Sentencing Principles [32] The authorities emphasize the enhanced gravity of these kinds of offences committed in the context of riotous behaviour forwhich the principles of general deterrence and denunciation are given paramount consideration and that of rehabilitation lessimportance: R. v. Fuller, [1995] Q.J. No. 3127 (Municipal Court of Montreal); R. v. Loewen, [1992] B.C.J. No. 1454 (BCCA); R. v.Catenacci, supra; R. v. Mdlongwa, unreported, July 21, 2011 (Ont. C.J.); R. v. Henry, unreported, Sept. 28, 2011 (Ont.

C.J.). [33] In Fuller, the court, at para. 48, in imposing a term of incarceration, viewed mischief to property in the context of a riot asserious because of its direct impact on the crowd, the incitement of others and its contribution to the intimidation inherent in anddangerousness of the unlawful assembly. [34] In sentencing the accused to 17 months for damaging a G20 police vehicle by fire in Catenacci, Weinper J. relied on thewords of the Chief Justice in R. v.

Proulx, 2000 SCC 5 , [2000] 1 SCR 61, at para 127, in rejecting the imposition of aconditional sentence in the circumstances before her as inadequate to meet the pressing need for denunciation and deterrence and asunsuitable to express society’s condemnation of conduct encroaching on our society’s basic code of values. [35] In a related G20 arson case in Mdlongwa, Shamai J. sentenced the defendant to the equivalent of 21 months.

Sheemphasized the objective of denunciation of random acts of vandalism that served to undermine peaceful public protests, jeopardized thesafety of citizens and diminished the important value of freedom of expression as a key element of civic life. [36] However, more recently in Henry, another G20 case, Tuck-Jackson J., also relying on Proulx, cautioned against over-reliance on deterrence as an objective of sentencing and sought to take a more balanced approach by the application of rehabilitativeprinciples to dispositions in relation to, in particular, younger adult offenders who show genuine remorse and promise and have takensteps in that reformative direction. [37] In Henry, the 22-year old defendant smashed the windows of two major downtown commercial enterprises while wearing adisguise and engaging in Black Bloc tactics.

The Crown accepted that he participated in the protests with no original intent to damageproperty. The defendant said he lost self-control when he got caught up in the mob mentality. [38] His pre-trial rehabilitative efforts were impressive. He sought psychological help in exploring his motivation, tookmedication for depression and disassociated himself from a radical peer group.

He performed 130 hours of volunteer service. [39] Justice Tuck-Jackson was satisfied these criminal acts were out of character and that the defendant had shown tremendouspotential for rehabilitation. [40] In imposing a conditional sentence of 12 months, the learned judge was mindful that the seriousness of the offence andhigh moral blameworthiness of this young first offender in committing

an act of “destructive political expression” required a componentof imprisonment in order to denounce and deter such behaviour. [41] At the same time, Justice Tuck-Jackson was satisfied that such a sentence given the circumstances presented satisfied theappropriate sentencing principles, including emphasis on deterrence and denunciation, in restricting the offender’s liberty, supportingongoing rehabilitation and enabling restorative justice to be applied. She noted that Mr. Henry was young, impressionable and hadstrong social justice values that could be re-directed towards a more productive outcome.

Disposition [42] Mr. Cote’s circumstances bear some similarity to those of the defendant in Henry. He, too, is young and motivated bystrong social justice values that he now says, given the hard lessons of this experience, he will promote only by peaceful means. Heexpresses remorse for the impact of his actions and appears to have gained insight. He endured restrictive bail conditions that limited hiscontact with family.

He is a good candidate for rehabilitation. [43] However, in addition to the gravity of the offences, given their context of endangering those lawfully assembling anddiminishing the core social value of free political expression, it is aggravating that when the defendant joined the labour protest he hadthe original criminal intent to join with the Black Bloc to tear down the fence protecting the politicians and that when stymied bycircumstances turned his venom on symbols of police authority.

He was on probation at the time. [44] Mindful of the defendant’s rehabilitative potential, but giving emphasis to those principles of sentencing paramount in casesof politically motivated property damage that jeopardize community security and cohesion and diminish its core social values, I am ledto the conclusion by the authorities and the facts of this case, including its uniquely aggravating context, that the pressing need fordenunciation and general deterrence requires the imposition of a traditional term of incarceration.

[ 45 ] Mr. Cote will be sentenced to 6 months, to be followed by 12 months probation on terms to be discussed with counsel. Released: December 13, 2011 Signed: “Justice L. Feldman”