R. v. Tremblay Date:, 2013 BCPC 38

Citation: R. v. Tremblay Date: 20130226 2013 BCPC 0038 File No: 57768-1 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MARTIN TREMBLAY REASONS FOR SENTENCE OF THE HONOURABLE JUDGE P. CHEN Counsel for the Crown: G. Nelson Counsel for the Defendant: B. Bellows Place of Hearing: Richmond , B.C. Date of Hearing: January 31, 2013 Date of Judgment: February 26, 2013

[ 1 ] The Accused has pled guilty to common assault of K.S. and M.P. Submissions were heard on January 31 st and the Court adjourned to today for sentencing. Crown seeks a custodial sentence of 30 days to be served in the community by way of a conditional sentence order followed by probation, while the Accused seeks a suspended sentence with probation or, alternatively, a fine with probation. Facts [ 2 ] At the time of the assault on June 23, 2012, K.S. was 13 years old and M.P. was 10 years old. They were both members of the Richmond Steel hockey team.

The Accused was the coach of the UBC Hornets hockey team of which his son was a member. Both teams play in what is called a “Pee Wee” hockey league consisting of children aged 9 to 13 years. The incident occurred at the end of the final game of the spring hockey season – the Gold Medal championship game - won by the UBC Hornets by a score of 5 - 4. [ 3 ] The game was the final game of a five game series. Each game had been rough and “chippy”. Both coaches, instead of acting as a calming influence, stoked the bad feeling between the teams by yelling at opposing players and at each other.

The game was refereed by two 14 year old girls, one of whom – according to submissions from the Accused’s Counsel - broke down in tears during game 3, after being lambasted by the Richmond coach. [ 4 ] The Accused was yelling at K.S. whenever he was on the ice, for the entire game, right from the start. According to a parent of a player on his UBC Hornets team, the Accused was deliberately taunting K.S., calling him names like “twinkle-toes”, ridiculing him when he didn’t score and telling him that he was a poor skater.

When that parent tried to tell the Accused that those actions were not needed, the Accused replied that he was just trying to throw K.S. off of his game. [ 5 ] Parents of players from the Richmond team noted that K.S. broke down in tears on the bench as a result of the Accused’s taunting. The Richmond coach held K.S. back from playing while he was crying, with the result that he was not on the ice as much as he would have been otherwise. The parent said it was upsetting to see K.S. crying on the bench. [ 6 ] At one point in the game, K.S. scored and celebrated as he skated by the UBC bench.

The Accused yelled at K.S. and K.S. made an obscene gesture by giving the Accused “the finger”. [ 7 ] UBC, the Accused’s team, won the game 5 - 4. At the end of the game, the teams lined up on the ice for the traditional hand- shake. All the players touched or shook hands but the Accused, who was near the end of the line, strode purposefully towards K.S.. Instead of shaking hands with him, he stuck out his right foot to trip K.S. The Accused ended up tripping not only K.S. but also M.P. who was directly in front of K.S., causing both of them to fall to the ice. K.S. injured his wrist as a result of his fall.

A cast was put on as a precaution which remained on his wrist for some time into the summer, but ultimately X-rays showed that there was no fracture. [ 8 ] K.S. got up and swung his stick at the Accused hitting him on the arm. A Richmond coach approached the Accused but was held back by one of the other coaches.

People in the stands then started yelling and throwing water bottles onto the ice and the Accused gave “the finger” to them. [ 9 ] Back in the dressing room after the game, the Accused asked for everyone’s attention and told the team that he had deliberately tripped K.S. and knew he should not have done that. [ 10 ] The incident was captured on video by various parents and was posted on Youtube where it has had over 2 million “hits”. One video of the incident was copied by Crown, played in Court and filed as an exhibit in the sentencing. Aggravating and Mitigating Factors [ 11 ] The mitigating factors are: 1.

The Accused has pled guilty at the earliest opportunity, avoiding the need for a trial and sparing the witnesses, including child witnesses, from having to testify. 2. The Accused has provided a fulsome letter to the victims apologizing for his actions. 3. The Accused has favourable pre-sentence and psychiatric reports. The psychiatric report indicated that he was suffering withdrawal symptoms because of stopping his anti-depressant and anxiety medication about three weeks prior to the incident.

Defence Counsel submitted that the Accused was overworked and exhausted, working extremely hard at his construction business and spending a lot time on his volunteer work coaching hockey. He was also spending a lot of time commuting from his construction site in Harrison to Vancouver for the weekend coaching. According to Defence Counsel, the Accused did not realize he had not been taking his medication for 3 weeks until after this incident occurred.

Defence Counsel has submitted that the Accused’s medical condition, his stress, his fatigue and exhaustion, all played a role in creating a situation that the Accused was not capable of handling. The psychiatric report assessed the Accused to be at a low risk of re-offending.

4. The Accused has many letters of support from people in the community. Many of them are letters from parents of children he has coached in another league in which his own son is not a player. He volunteered to coach because the players on that team would otherwise not have the opportunity to play hockey. Many of those letters attest to the Accused’s good work with their children and that he has been a good mentor and positive role model to them. The Accused has also been a volunteer leader with Scouts Canada. 5. The Accused has expressed his remorse for his actions on more than one occasion. 6.

The Accused has suffered for his actions, regardless of the sentence to be imposed today. Coaching hockey and volunteer work with Scouts Canada has been a big part of his life for a long time but, as a result of these charges, his coaching and volunteer work with Scouts Canada is no longer possible. The incident posted on Youtube has resulted in public humiliation for him. He has had two construction contracts cancelled as a result of the notoriety of the incident. Because of media attention and harassment, his wife has left him, though they are now considering reconciliation.

Aggravating Factors [ 12 ] The main aggravating factors are: 1. The Accused, in committing the assault against K.S. and M.P., abused persons under the age of 18 years. K.S. and M.P. were much younger than 18. They were children, 13 and 10 years old respectively, and were both very much smaller than the Accused. 2. The Accused, in committing the assault against K.S. and M.P. abused a position of trust or authority in relation to them. The Accused was a coach. K.S. and M.P. were children playing a game where he was one of the coaches.

Children who play in organized Pee Wee hockey, and their parents, have a right to expect that the adults in charge will keep them safe. 3. The incident occurred during the hand-shake ritual that traditionally follows a play-off or championship hockey series. This is a time when, no matter how hard-fought the game, no matter what level of hostility may have been displayed in the heat of the moment, or how tempers may have flared while playing, all participants put all of that aside in the spirit of good sportsmanship to shake hands and to acknowledge the mutual respect that each is due.

It is a time when all participants take a deep breath and appreciate that – notwithstanding the emotional commitment each had to achieving victory –win or lose, this was just a game. This was the last place anyone would have expected an assault to take place, and the very last place that one would have expected an adult to assault a child. 4. There was no warning of the assault and the tripping of the boys was akin to a cowardly “sucker punch” on an unsuspecting victim. 5.

The Accused, at the time of the offence, was bound by the terms of a one year probation order following a conditional discharge for a charge of assault, imposed only 8 weeks prior to these assaults on K.S. and M.P.. Analysis [ 13 ] Defence Counsel has submitted that the Accused had no intention of tripping K.S. and M.P. or anyone when he entered the handshake line-up but that he just “lost it” when he got closer to K.S. [ 14 ] Defence Counsel also submitted that the likelihood of the Accused doing anything like this again was “zero” and that personal deterrence was not necessary.

He also submitted that, in the circumstances, general deterrence was also not necessary. [ 15 ] The difficulty I have with the first submission is that these assaults followed a game in which the Accused had been taunting and heaping abuse on K.S. whenever he was on the ice to the point where K.S. finally broke down in tears on the bench.

In my view, that abuse formed part of a pattern of bullying behaviour by the Accused that culminated in the actual assaults on K.S. and M.P. [ 16 ] The difficulty I have with the second submission is that the Accused was on probation after being conditionally discharged for a prior assault on his employer at the time of his assaults on K.S. and M.P. That probation order had commenced only 8 weeks earlier and was clearly not effective to specifically deter the Accused from committing further criminal assaults.

Not only did the Accused commit another assault, but this time it was against children. [ 17 ] The psychiatric report states at page 12: While Mr. Tremblay was not experiencing psychiatric symptoms of a degree or kind that would be expected to erode his capacity to understand the nature of his actions or interfere with his capacity to appraise the wrongfulness of anticipated actions, it does appear that he had become anxious and depressed again and in this state had an overall reduced capacity to cope with and deal effectively with negative emotions that may have arisen.

This mental state would likely have interfered with his capacity to exercise better judgment. [ 18 ] The psychiatrist appears to be making an argument of diminished responsibility which I find difficult to accept. I am surprised, notwithstanding his knowledge of the prior assault, that the psychiatrist would not have considered that the Accused may have some anger management issues, quite apart from his issues with anxiety and depression.

[ 19 ] I note however, that the Accused provided the psychiatrist this description of the incident that appears at page 9 of the report: During the handshake, Mr. Tremblay recalls sticking his foot out. He stated the intension (sic) was to stick his foot out and stop the tall player and talk to him. However, his foot was caught in another boy’s skates and both boys fell down. [ 20 ] This version of the incident would suggest that the tripping was somewhat accidental and/or unintentional. It is completely at cross-purposes with description of the incident provided to the court in submissions.

It is also inconsistent with what appears on the video of the incident that was played in Court, and with his statement to his players, in the dressing room after the game. The opinions offered in the psychiatric report can only be as reliable as the information upon which they were based. Accordingly, I find the conclusions contained in the psychiatric report to be unreliable. [ 21 ] In my view, the Accused must take responsibility for all his actions, including his failure to take the medication which he now submits could have tempered his behaviour.

I am also not prepared to accept that his failure to take medication, his stress and his exhaustion from work and volunteer activity, is an adequate explanation for the Accused’s assaultive behaviour. I am not persuaded that specific deterrence is unnecessary with respect to the Accused, although in my view, the over-riding sentencing principles to be addressed in the case at bar, are those of denunciation and general deterrence. It is necessary, in my view, to express that society will not tolerate the assault of children by adults. [ 22 ]

Section 718.01 of the Criminal Code of Canada states: When a court imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. [ 23 ] This principle is well illustrated in the case of R. v. Bebis (Ont. Dist. Ct.) , [1989] O.J. No. 1620 . In Bebis , the Court allowed the Crown’s appeal of a conditional discharge of an accused for the assault on a 16 year old hockey coach of a team involving 4 to 8 year olds.

The court found that the accused had swung twice at the victim but failed to land a blow. The accused’s acts precipitated a wild melee in which the accused was seized, held and subdued by other adults present at the game. [ 24 ] At the last page of Bebis , Goodearle, D.C.J. stated his reasons for overturning the conditional discharge, imposing a conviction and referring the case back to the trial court for sentencing as follows: It is my view that such a result would be very much contrary to public policy.

For to accost and then attack the coach or coaches of teams, the players of which are four to eight years old, as a parent of one of the players and in the presence of these players is, to me, an exemplification of conduct that simply cannot and should not be tolerated by the public in these circumstances. It was a role model setting in every sense and meaning of that term. The accused was the father of one of the very youthful participants and would be all the more noticed in his misconduct.

He, of all spectator groups present, must surely be in the group expected mostly to show restraint from riotous behaviour if not composure. There is a crying need here for the principle of general deterrence to be seen and hence applied; a signal, as it were, to other parents heavily involved in the sporting activities of their children, that they must be seen as models of good and acceptable behaviour and not as instigators of violence and of riotous behaviour.

It would be the rarest of occasions, in my view, that would discharge an accused from any responsibility for behaviour such as found here, particularly bearing in mind the setting of the incident and the accused’s parental status. [ 25 ] In the case at bar, the Accused seeks a suspended sentence with probation or, in the alternative, a fine with probation, and not a conditional discharge.

None-the-less, I find the reasoning and the principles applied in Bebis to be applicable to the facts in the case at bar. [ 26 ] If anything, the need for general deterrence is stronger in the case at bar as the Accused was not only a parent with a child on the team, he was the coach of the team. He was one of the adults who were given the authority and responsibility to supervise and monitor the children. He would be one of the people most expected to be a role model.

The victims in the case at bar were younger and smaller than were those in Bebis and were children playing on the opposing team. [ 27 ] The circumstances in the case at bar could easily have degenerated into riotous behaviour and a wild melee. It is fortuitous that it did not. After the Accused’s assault of K.S. and M.P., parents of players from the opposing teams were yelling at each other, parents were throwing water bottles onto the ice, and the Accused was making obscene gestures at the parents in the stands by giving them “the finger”, inflaming the situation instead of being a calming influence.

Decision [ 28 ] This Court has a high duty to protect children from assaults by adults. Considering all of the aggravating and mitigating factors, the circumstances of the assault and the circumstances of the Accused, I am not satisfied that having the Accused serve his sentence in the community would be consistent with the fundamental purpose and principles of sentencing that are applicable in the case at bar. In my view a sentence served in the community would not adequately address the principles of denunciation and deterrence, particularly general deterrence but also specific deterrence as well. [ 29 ] Mr.

Tremblay, please stand. I hereby sentence you to a sentence of 15 days imprisonment in a provincial correctional institute

to be served intermittently. The first day of your sentence shall be served today, February 26, 2013, at the Surrey Pre-Trial Centre, where you will be classified to the appropriate facility. Thereafter, your sentence is to be served commencing 6:00 p.m., March 1, 2013 until 6:00 p.m., March 3, 2013, and on consecutive weekends thereafter until your sentence is complete. [ 30 ] At all times that you are not in confinement, you will comply with the conditions prescribed in a probation order. (s. 737(1)(c). [ 31 ] The terms of that probation order will be that:

(1) You keep the peace and be of good behaviour.

(2) That you report to the court when required to do so. [ 32 ] Upon completion of your intermittent sentence, you will be placed on the terms of a probation order. The probation order will be for a term of 12 months. The conditions of the probation order will be as follows: 1. Keep the peace and be of good behaviour. 2. Report to court when required to do so by the court. 3. Report to a probation officer at 7577 Elmbridge Way, Richmond, British Columbia in person within 72 hours of the completion of your intermittent sentence and thereafter when and in the manner directed by the probation officer. 4.

On your initial report to the probation officer provide your residential address and contact telephone numbers, if any, and thereafter not change those without first notifying your probation officer in advance, in writing of the new address or contact telephone numbers. 5. Attend and participate in such assessments, counselling and treatment programs as your probation officer may direct. Such assessments, counselling and programs may include, but are not limited to, anger management counselling and/or psychiatric and/or psychological counselling.

You will complete all such assessments, counselling and treatment programs to the satisfaction of your probation officer. 6. Have no contact, directly or indirectly with K.S. and M.P. or any member of their families, except as may be facilitated by your probation officer. 7. Do not attend at any place that you may from time to time know K.S. and/or M.P. to be residing, working or attending an educational facility or institution. 8. Take any medication prescribed for you by your medical practitioners, except that you shall not be required to submit to any treatment or medication to which you do not consent. 9.

Provide your treating physician with a copy of this order and the name, address and phone number of your probation officer. You shall instruct your treating physician that if you fail to take medication as prescribed by him or her or fail to keep any appointments with him or her, he or she is to advise your probation officer immediately of any such failure. 10. Take all reasonable steps to maintain yourself in such condition that your mental condition will not likely cause you to conduct yourself in a manner dangerous to yourself or anyone else. 11.

Do not seek or obtain any employment or volunteer work that involves being in a position of trust or authority or supervision towards persons under the age of fourteen years. ______________________________ Judge P. Chen