R. v. Schortinghuis, 2022 BCPC 161

Citation: R. v. Schortinghuis 2022 BCPC 161 Date: 20220630 File No: 66617-1 Registry: Richmond In the Provincial Court of British Columbia REGINA v. IAN WILTOW SCHORTINGHUIS AND: File No: 265679-1 Registry: Vancouver REGINA v. IVANNA MILLY CIKES, IAN WILTOW SCHORTINGHUIS and DEBORAH SHERRY JANET TIN TUN AND: File No: 265857-1 Registry: Vancouver REGINA v. SARAH GABRIELLE HANDY, IAN WILTOW SCHORTINGHUIS and KIMBERLEY ANN TRAINOR ORAL REASONS FOR SENTENCE (Re Accused Schortinghuis) OF THE HONOURABLE JUDGE L. BAKAN Counsel for the Crown: E. Leno Counsel for the Defendant: A.

Abdulmalik (via videoconference) Place of Hearing: Vancouver , B.C. Date of Hearing: June 29, 2022 Date of Sentence: June 30, 2022 [ 1 ] THE COURT: These are my oral reasons following the sentencing hearing that was held yesterday and finished yesterday afternoon. I reserve the right to edit these reasons for clarity, conciseness, and grammar, if required.

[ 2 ] Ian Wiltow Schortinghuis is before the Court for sentence having pled guilty to three counts of mischief contrary to s. 430 of the Criminal Code and two counts of breach of undertaking not to impede traffic contrary to s. 145(4) (

a) of the Criminal Code . The offences occurred in Vancouver, Burnaby, and Richmond, British Columbia. All arose while Mr. Schortinghuis was engaged in protest activities that obstructed vehicles from proceeding as follows. [ 3 ] On April 4, 2022, at 7:40 in the morning, he and two others sat on a roadway holding "Save Old Growth" signs, which obstructed traffic on the Ironworkers Bridge, blocking three southbound lanes of traffic during rush hour. Vehicles could not proceed or turn around.

Some of the occupants of the vehicles approached the protestors vocally expressing their unhappiness and their desire to proceed. Others honked their horns and yelled obscenities at the protestors. [ 4 ] Fifteen minutes later, a police officer advised the protestors that they would be arrested for mischief if they did not leave the roadway. They issued another verbal warning at 8:00 a.m. Mr. Schortinghuis was still seated on the bridge deck holding a sign at 8:09 a.m. in the morning. He was removed, chartered, and arrested.

He had been occupying the bridge deck for approximately 30 minutes before he was removed by police. He was transported to jail and later released on an undertaking that stated, "You must not impede or block any traffic or pedestrians on any road or highway." [ 5 ] On the morning of April 27, 2022, five days later, five people holding "Save Old Growth" signs entered a crosswalk at Grandview Highway and Boundary in Burnaby, British Columbia. This is the entrance to Highway 1. They set out pylons and sat on the roadway. Mr. Schortinghuis was one of these protestors.

These protestors blocked traffic from proceeding in both directions on Grandview Highway. As in the first situation, angry motorists left their vehicles and engaged in verbal altercations with the protestors. When some drivers began to drive through the gap between seated protestors, standing protestors moved in front of vehicles to stop them. [ 6 ] The RCMP were called by a member of the public at 9:09 a.m. and nine minutes later, the RCMP attended. They had been delayed due to traffic congestion caused by the protest and started to divert traffic. On arrival, Constable Toor saw three people, including Mr.

Schortinghuis, walk away from the scene. They were not giving warnings, as they were no longer blocking the road. From Crown's submissions, I infer that Mr. Schortinghuis was sitting on the road between 20 to 30 minutes before voluntarily leaving. Mr. Schortinghuis was initially held in custody due to a breach of the April 4, 2022, undertaking, but was released that evening on a similar undertaking. [ 7 ] While bound by these two undertakings not to impede or block any traffic or pedestrians on any road or highway, on June 13, 2022, at 7:13 a.m., Mr.

Schortinghuis was one of a group of protestors blocking all southbound traffic at the Massey Tunnel and the northbound traffic in the counterflow lane. This is an essential transportation corridor for people and goods and provides access to hospitals and emergency vehicles. To detour around takes some time. He was on top of a 10-foot ladder placed over the dividing line of the lanes while two other protestors held "Save Old Growth" signs on the roadway. He refused police directions and efforts to get him to descend the ladder.

As in the first two offences in Vancouver and the second matter in Burnaby, persons and vehicles became extremely vocal in expressing their views of the blockade. [ 8 ] At 7:53 a.m., additional officers, including members of the tactical squad, attended. He still refused to climb down the ladder and was removed after police scaled a dump truck, first pulled him onto the dump truck, and then safely to the ground. He was taken to the Richmond RCMP detachment and given his Charter rights.

He was charged with mischief and a breach of his two undertakings. [ 9 ] He was held in custody for his bail hearing as he was in a reverse onus situation. That means he was breaching a bail order and had to show why he should be released. The onus was on him. He was detained on June 13, 2022 on both the April 4 and June 13, 2022 informations and has remained in pretrial custody since then. I note he has no prior criminal record and has not been in jail before. [ 10 ] We normally talk about the effect on the complainant.

While there was no individual complainant in this case, hundreds of persons driving during rush hour in the Lower Mainland area were blocked from reaching work, medical appointments, dropping children at school and daycare. Numerous people were stuck in the tunnel or on a bridge when there is no means of turning around. These effects of being stuck in this manner pose a risk of trauma, especially to persons with anxiety, children, and those who are missing crucial medical appointments, including persons from Vancouver Island who may be seeing medical specialists in the Lower Mainland.

The blockade caused more carbon fuel to be sent into the atmosphere as cars were idling or were diverted and had to take longer routes. Police, fire, and paramedic resources were diverted to deal with the traffic blockage. [ 11 ] In all three protests, vehicle occupants left their vehicles to express their anger. It is extremely fortunate no acts of violence occurred, and that was likely only due to the fact that the police arrived fairly soon. I note that the pandemic and other social issues are causing increasing levels of stress in the community.

People are having difficulty making ends meet and the healthcare system, including paramedics and police, are under great strain. It is only a matter of time until a protestor, vehicle occupant, police, fire, or paramedic personnel are injured during these protests. Mr. Schortinghuis put people at risk, including himself, by refusing to climb down the ladder in the Massey Tunnel matter. [ 12 ] In terms of Mr. Schortinghuis' personal circumstances, he is 30 years old and comes before this Court with no criminal record. Prior to these offences, he led a prosocial life.

He worked, did volunteer work, played musical instruments, and cycled. He has a high school education. He was raised in what defence counsel described as an average middle class family. His mother is retired. For 30 years, she was employed as a computer programmer and analyst. While she was not introduced to the Court as I would have liked defence counsel to have done, I understand that she was present in the court. She is a supportive mother. Mr. Schortinghuis lives in the basement of her home. He is a helpful son and assists her with house repairs and maintenance.

His father died three-and-a-half years ago and his assistance is much appreciated. [ 13 ] Mr. Schortinghuis has performed volunteer work for Meals on Wheels, Hollyhock, the Salvation Army, and youth programs. He has worked in the service industry and a number of jobs, including in restaurants, landscaping, and as a bike courier. I was told that he lost his job as a bike courier during the pandemic but will be returning to this work. [ 14 ] His mother, Jean Matthewson, has provided a letter in support of her son to the Court. I have read the letter and I accept the contents as truthful. Ms.

Matthewson advised that her son has had mental challenges and has struggled with attention deficit disorder and

learning disabilities. She states he learns best by experience, and his incarceration over the last 16 days has provided an experience hedoes not want to repeat and, in her view, will not repeat. I am further advised that Mr. Schortinghuis has had some issues with alcoholuse. [15] From my observations of Mr. Schortinghuis and what I have heard, he is an unsophisticated person. He addressed the Court aftersubmissions. I found him sincere and without guile. He has been accepted into the Automotive Repair Program at VancouverCommunity College this September.

His mother has stated in her letter how he taught himself during the pandemic on how to repairtrucks and has been quite adept at this without any prior mechanical training, and he is working, according to counsel, on making carsand working on electric vehicles. [16] In terms of the sentencing positions of defence and Crown, the Crown seeks imposition of a global sentence on all counts as of a21-day term of imprisonment, which, in effect, is time served as he has been in custody since June 13, 2022, plus 18 months’ probation.As of today, by my calculations, he has served 17 actual days in jail.

There is credit of one-and-a-half-day applied to each day one servesin what is referred to as pretrial custody because it is recognized it is harder time to serve.

There are less resources and programs.Accuseds are mixed in with people who have been denied bail who generally have been charged with offences of violence because bail isgranted on conditions unless the public cannot be protected. [17] The Crown seeks a one-day jail sentence which would reflect today and a criminal record which would reflect that he has served21 days in jail plus 18 months' probation which would include statutory conditions and a condition that Mr.

Schortinghuis not block orimpede traffic or pedestrians on any road or highway or public space in British Columbia. [18] Crown provided very helpful written submissions on the law.

At paragraphs 124 to 127, the Crown sets out the rationale forseeking a custodial sentence which is a growing number of, "illegal blockages and escalation of sentence from what started as conditionaldischarges to suspended sentences must now be elevated to a sentence of imprisonment based on events occurring between April andJune of 2022." [19] The Crown submits that sentences of incarceration for protestors will send messages to Extinction Rebellion and Save OldGrowth and similar organizations and supporters of those organizations that those that commit unlawful acts of civil disobedience byblocking public access to public roadways and infrastructure must expect a serious sentence.

In paragraph 136 of its written submissions,Crown states that Save Old Growth has declared they would and did restart traffic blocking activities on June 13, 2022. It is submitted byCrown that this organization has publicly advertised that they aim to have over 200 protestors arrested in the spring and that protestactivity levels in June and July will be very high.

Crown goes on to state that, unless the sentences imposed have a sufficiently deterrenteffect, there will continue to be protestors who are willing to be arrested, including protestors who will be willing to be arrested multipletimes. [20] I have no evidence before me in respect to Save Old Growth's position. I am not in a position to take judicial notice of it. It wouldnot be appropriate to do so.

There are cases, including one I have been the adjudicator of, in regards to blockades conducted by bothExtinction Rebellion and other environmental groups so I am familiar with some of the activities. [21] I note that June 13, 2022 was a date that Mr. Schortinghuis breached the undertaking and took

part in the blockage of the MasseyTunnel. I have no evidence that he was a directing mind or strategist for Save Old Growth. To the contrary, he appears to be the type ofperson these groups entice and basically use as sacrificial lambs for their causes. I find this conduct reprehensible as they hide behindfrom the persons who have come before me, good people and people such as Mr. Schortinghuis who says that he was given a sense ofpurpose and belonging by these groups. [22] Defence counsel did not provide me with a caselaw brief or a written submission.

I know that it is difficult -- you cannot alwayschoose when you are retained, but where sentences of incarceration are being sought, it behooves defence counsel to put somethingbefore the Court as there is a very experienced Crown and it can make the playing field appear not level. Counsel submits that aconditional discharge with two years' probation and community service work and, of course, a condition not to blockade roadways isappropriate. [23] He did mention the case of R. v. Fallofield, (1973) (BC CA), 13 C.C.C. (2d) 450 B.C.C.A.

That case statesthat there must be two conditions met for a conditional discharge. Firstly, it must be in the client's interest, which there is no doubt it is.A criminal record will impede Mr. Schortinghuis' ability to travel across the border. It will also impede his career prospects. It makes itdifficult to be bonded. It makes it difficult to be employed as criminal records are public documents and most employers do checks. [24] Secondly, the conditional discharge must not be contrary to the public interest. The issue is whether this condition is met.Defence submits it is in the public interest as Mr.

Schortinghuis has served two-and-a-half weeks in jail, which serve both a generaldeterrent to other protestors and a specific deterrent to himself. He states that a significant community service work order such as wasdone in my brother judge Harris' case of R. v. Campbell is appropriate. It allows an offender to make reparations for the harm he hascaused to the community. I was unable to find the R. v. Campbell case online. A copy of it was not provided.

I am assuming that it isunreported, but the Crown outlines the facts in that case, and sentence, in paragraph 117 of the Crown's written submission, and defencecounsel has not taken any issue with that. So I am accepting that that is what the decision sentence was and the facts. [25] As stated in the Crown’s submission, Ms. Campbell pled guilty on four informations, including one breach of undertaking inrelation to three Extinction Rebellion protests in October of 2021 and one Save Old Growth protest on January 31, 2022.

Judge Harrisnoted in his reasons that she was 19 and bright with an early career path that would have been significantly impacted by a criminalrecord. She was granted a conditional discharge and 18 months' probation, which included 150 hours of community service work andsome other conditions in addition to being ordered not to block or impede traffic. [26] In terms of the Crown's submissions on the law, the Crown has filed a detailed submission on cases for use in sentencing. Crownset out purported facts of these offences, including the historical background of similar protests.

I cannot take judicial notice of thehistorical background. It is not in an Agreed Statement of Facts nor supported by Affidavit. I can take note of what relates to this matter,the case authorities and what is within my knowledge from cases I have sat on and sentences I have imposed.

[27] The Crown has filed a book of nine authorities in support of its sentencing position. I have reviewed them. I will not refer to all ofthem, as it is not necessary. A lot of them repeat principles, but at all levels of court including the Supreme Court of Canada. I would askthat after this sentencing hearing is concluded Madam Registrar keep an index of the cases in the file, so it is known specifically whatcases were referred to and that I have read. [28] The principles and objectives of sentencing are set out in the Criminal Code under s. 718, 718.1, and 718.2. The fundamentalpurpose of criminal law and sentencing in particular is the protection of society.

Section 718 sets out factors or ways of achieving thisprotection, which include the following: rehabilitation of the offender and the offender making reparations for harm done to the victim orcommunity; deterrence of the offender from reoffending; promoting a sense of responsibility in the offender and their acknowledgmentof the harm they have caused; the deterrence of others in the community who are deterred from continuing in such offences when theysee the seriousness and consequence to an individual and the penalty imposed; denunciation of the criminal conduct; and in certain cases,isolation through a jail sentence.

The emphasis a judge places on each of these factors when sentencing a person before the Court variesaccording to the nature of the offences and the individual circumstances of the offender. [29]

Section 718.1 sets out the fundamental sentencing principle of proportionality. This requires that a sentence be proportional to thegravity of the offences and the degree of the responsibility of the offender. [30]

Section 718.2 requires a judge to consider factors that are aggravating and might make a sentence longer, or mitigating, whichmay make the sentence shorter in respect to the individual before the Court.

Section 718.2 also sets out the principle that an offendershould not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances and goes on to state: … all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [31] The totality principle must also be considered where consecutive sentences are given, so that when you add things togetherpeople do not get a longer sentence.

Some of these factors do not mesh well with each other and sentencing is not a science. The Crownsubmits that the primary sentencing consideration in cases such as this are denunciation and deterrence, with deterrence being bothspecific to the offender and general to the community. Rehabilitation, it is submitted, plays some role and its weight in sentencingdepends on the circumstances of the individual. [32] Crown refers to an older Court of Appeal case of former Chief Justice McEachern; McMillan Bloedel Ltd. v. Brown, (1994) (BC CA), 88 C.C.C. (3d) 148.

It considered an appeal for convictions for criminal contempt for people who had violatedcourt orders to desist from preventing logging in Clayoquot Sound. It is a different charge, but some of the principles are applicable. Inparagraph 6, he stated civil disobedience is not a lawful defence. He articulates very clearly how the rule of law is threatened by certaintypes of civil disobedience. These are set out in the Crown submission. McEachern, C.J. comments on general deterrence in a veryarticulate manner in paragraphs 48 and 50 of McMillan. [33] There is the recent case of R. v.

Baldwin-Pinch, Healy, et al (March 16, 2022) Vancouver 264419-1 Richmond 66275-1(B.C.P.C.) of Dhillon, J. regarding the sentence of two people that had pled guilty to mischief under s. 430 of the Criminal Code. Theseoffences took place on two days in October 2021 during a protest organized by Extinction Rebellion which, as Judge Dhillon states, is aninternational environmental group who in 2021, conducted numerous protests in Metro Vancouver that led to some arrests and chargesand that these protests were to bring attention to climate change. [34] The Crown sought suspended sentences and probation.

The younger offender, Ms. Baldwin-Pinch, sought a conditionaldischarge. In considering the purpose and principles of sentence, Judge Dhillon, in paragraph 17, stated that citizens who care deeply andpassionately about social justice issues have been agents of real social change in the course of human history.

She stated that racial andgender equality, for a woman's right to vote was one form of civil disobedience as was the Civil Rights Movement in the U.S., anti-Apartheid movements in South Africa, and other social justice movements. [35] She goes on to state in paragraphs 18 to 20 that the law recognizes there is a legal right to engage in dissent and protest to bringabout societal change, and s. 2 of the Charter enshrines the fundamental freedoms of thought, belief, opinion, and expression andprotects the freedom of peaceful assembly.

The law does not permit protestors to cause substantial impairment of other citizens and theirright to use and enjoy public property, and she stated that was the heart of the issue before the Court before her, and it is before metoday.

In paragraph 20, she states: … where a protest devolves to civil disobedience which adversely impairs or impacts other citizens and their right of lawful and peacefulmovement and their use and enjoyment of public property, there must be accountability under the criminal justice system. [36] In paragraph 23, she comments on the occupation of Extinction Rebellion that was before her, that the occupation of publicroadways caused a massive disruption to the community and users of the roadways and noted factors that occurred here in everyinstance.

In the case before me, in all three matters, there was a danger of violence between those impacted and protestors putting themand public servants at risk of injury and harm. This is an example of what Chief Judge McEachern was referring to: when there is abreakdown of the rule of law, both sides come to blows, and the fabric of society is torn apart. [37] On one hand, we have protestors taking illegal actions and in response, people may take illegal actions, vigilante actions, and thatharms society as a whole.

Judge Dhillon held that it is a willful breach of the law to not to comply with directives of police officers tomove. She also considered my sister Judge Burgess' decision of R. v. Panganiban, (December 8, 2021) Vancouver 32605-1/262312-1(B.C.P.C.). It is in the casebook and submissions of Crown. It provides an excellent

summary of relevant caselaw. [38] In Panganiban, there were two accused before Judge Burgess. The first offender had pled guilty to one count of mischief onMarch 30, 2021, for blocking a roadway during a protest by or associated with the Braided Warriors in a main thoroughfare in and out ofDowntown and also blocked access to the Port of Vancouver, which had an injunction in place at the time preventing that. The co-accused who, in April 2021, was before the Court for a charge of mischief in relation to her participation in a protest against the Trans

Mountain Pipeline. The group she was in chained and barricaded all doors to a building and chained themselves so police and firefighters had to cut the chains, and the two accused were arrested. [ 39 ] Neither offender had a criminal record. Both were young, educated women with letters of reference before the Court. The offenders set out their struggles with anxiety and depression concerned with climate change, but told the Court that as a result of the charges, they realized there were other ways to deal with things.

Crown had sought a suspended sentence, which was the position it sought at the time and defence sought a conditional discharge. Like Judge Dhillon, Judge Burgess analyzed the role of protest and civil disobedience in Canadian democracy, citing R. v. Pratt and Stevenson when the judge mentioned Martin Luther King and Gandhi as examples of persons that drew public attention to claims of fundamental freedoms and human rights. The judge in that case, however, held that the adoption of civil disobedience methods and the promotion of a just cause does not transform illegal actions into legal ones.

Where the line is crossed, as Judge Burgess states, the justice system steps in (paragraphs 24 and 25). [ 40 ] The Crown has provided caselaw covering a range of sentences from fines and conditional discharges, to incarceration. The Crown acknowledges that conditional discharges with significant community service work were its routine sentencing position for events in 2021.

Crown submits that these conditional discharges and community service work orders have not deterred these protests that break the law and impede lawful use of public roadways and infrastructure. [ 41 ] I note that the groups themselves are not before the Court. I accepted joint submissions on sentence for several persons within the last year for mischief blockading in roadways, mainly during Extinction Rebellion protests. The sentences were conditional discharges with significant community service work.

Thus far, to my knowledge, neither Extinction Rebellion nor Save Our Forests have been declared criminal or terrorist organizations. I cannot deter them nor whomever organizes them with sanctions. I know one of these groups is said to be an international organization. It is beyond the reach of this Court. The deterrence aspect must be specific deterrence of the person before me and others -- that is the general deterrence -- that might be considering joining illegal protests which involve breaking the law. [ 42 ] I have looked at the mitigating and aggravating factors relating to Mr.

Schortinghuis, which I am required to do under the Criminal Code . Mitigating is that Mr. Schortinghuis has made it to the age of 30 with no criminal record and that is unusual, although not as unusual in these types of offences. [ 43 ] This is an extremely early guilty plea, and what is also unusual and stands out is that Mr. Schortinghuis has pled guilty to every offence that he has been charged with. In my experience, it is unusual where there is a guilty plea, that some charges are not dropped.

I find that makes this more mitigating than an early guilty plea where Crown has dropped charges as part of the sentencing process and after some time. Sometimes this is not done until the day of plea or sentence. This is the only case before me that I recall where this has happened. The guilty pleas are very early. [ 44 ] The last charge was June 13, 2022. The other two were within a week of each other in April 2022. A pattern of charges developed but Mr. Schortinghuis had no record.

One cannot say this is a step up as there have been no prior convictions. [ 45 ] I also note that he has the social support of his mother and family. His mother, from her letter, sounds like a person who is a very positive influence and has said, you know, she does not think he will reoffend and is someone who is very supportive of him. [ 46 ] While certainly not a defence, it is mitigating that his involvement in these offences did not last as in some of the cases for hours or days. I think there has been a change from the way the police are dealing with these.

They are not allowing these protests to drag on interminably until an injunction is granted. So that is a change, as well. The Burnaby matter appears to be no more than half an hour. In that case, as well, he had voluntarily left before detaining police so there was no warning given. [ 47 ] Mr. Justice Butler’s Court of Appeal decision Trans Mountain Pipeline ULC v. Mivasair , 2019 BCCA 156 had set out increasing penalty positions. Courts are not required to do this, but what the Crown is in essence doing here is saying, "What we have done in the past, conditional sentence, suspended sentence, has not worked.

We are stepping it up. This case is going to be the example for others. We are requesting a custodial sentence." [ 48 ] Mr. Schortinghuis has attention deficit disorder and learning disabilities. His mother states that in her view, this makes him more vulnerable to being somewhat “seduced” into these sort of activities. These groups are sophisticated, well organized and well funded. I accept that he does have challenges, including intellectual ones, from what I have observed and heard in court. He is helped significantly by his mother, who provides him with housing. He lives in her basement suite.

He, in turn, assists her with maintenance and things around the house. [ 49 ] Again, he is a person whose personal attributes are easily preyed on by organizations such as the one he was protesting on behalf of. If they are saying, "We are going to have so many people arrested," that is like using people as cannon fodder. It is generally not the strategists that are on the frontline. [ 50 ] In prior cases, I have been advised -- and I notice one of the members of the Court is shaking their head. I would ask them not to.

This is a courtroom, and I am engaging in a sentence, which the offender before me needs to have me engaged, and I am not diverted by people shaking their head. [ 51 ] In prior cases, I have been advised that offenders before me had been asked to stand their ground by these organizations as they were young, had no record, and had no resources to pay a fine so it was not really a big deal for them as it would be for perhaps those who “pull the strings” in these organizations. I note that these organizations do not come to the aid of many of these people when they are charged.

I think this is the first time or one of the first times there has been a lawyer rather than a law student, and this puts these individuals at a disadvantage, as there is, in my case, always very experienced and good Crown counsel who specialize in these areas. So they leave these people vulnerable, in my respectful view. [ 52 ] In terms of remorse, Mr. Schortinghuis addressed the Court and acknowledged that he showed poor judgment in committing these offences. He explained that he had felt down due to the pandemic and suddenly felt a sense of purpose and belonging that had been

lacking. I do not mean to make this to be disparaging, but basically, these organizations groom people like Mr. Schortinghuis. I accept that Mr. Schortinghuis' remorse is genuine, and I find it mitigating. [ 53 ] In the Panganiban case and the Markiewicz case, which was a case before me, the offenders did not show remorse for their offences in court. They remained unrepentant and showed little respect, in one of the cases, for the court process. [ 54 ] I note that Mr. Schortinghuis has complied with his bail conditions. He states he will comply with this court order.

There was no violence or vandalism or chaining in the offences before me. [ 55 ] In terms of deterrence, Mr. Schortinghuis has been in pretrial custody. As previously stated, this is harder time and credit is granted to reflect this. Pretrial time is even harder during COVID restrictions, which are still ongoing in the jails. When accused go back and forth between court and jail, they are placed on COVID protocols. They are usually isolated. They cannot have visitors. They do not, from what I hear, have easy access to phone or counsel. [ 56 ] Mr.

Schortinghuis told the Court that being in jail is not an experience he wishes to repeat and that he will not be back before the Court. I accept this and, based on what I have been told and observed in respect to Mr. Schortinghuis, I think he would have a particularly difficult time dealing with many people that find themselves in pretrial detention. Many of these are violent offenders. I find that specific deterrence has been served through this jail time and that he will not likely find himself before the Court again.

If he does, based on a step-up principle, he will most likely receive a greater sentence. [ 57 ] I concur with Crown that general and specific deterrence are a primary sentencing principles generally in cases such as these. I have not seen the same persons back before the Court that have been granted discharges by me, but there is no doubt that new persons are recruited to these protests and there is a need to deter this. I find that the general principle has been met in this case, as well, given Mr.

Schortinghuis is a person with no record, has served time in pretrial custody under difficult conditions and others who have or may be considering involving themselves in illegal blockades of public roadways and infrastructures will certainly take note of this. The sentences in future will likely increase if this type of offending continues. [ 58 ] I will now address the aggravating factors. Blocking of a bridge and tunnel during rush hour in the Vancouver area where people cannot get out of vehicles, including small children, the elderly, and those who have anxiety and phobia, is aggravating.

Preventing people from getting to work, interfering with their livelihood, medical appointments, especially those from the Island, is aggravating. These are working people who are being affected. These are not people jetting off to the tropics. [ 59 ] The increased risk of violence and resources due to persons impacted through increasing anger and stress has been shown in all three of these instances.

It is only, unfortunately, a matter of time before someone gets injured or killed during one of these illegal blockades, as indicated by the responses of vehicle occupants that are illegal and vigilante, but are not unexpected. When one group breaks the law, the other group that is affected breaks the law and that is how anarchy starts and society breaks down. [ 60 ] The diversion of police, fire, and paramedics from areas such as the Downtown Eastside and those, ironically, impacted by excessive heat are impacted, including the elderly who live in single residence occupancies.

The opioid crisis, anyone can see walking outside this courthouse is a pandemic of its own. Sirens go off every five minutes because people require resuscitation and hospitalization. When paramedics are diverted by having to be at protests, those people are at risk, and they are very marginalized people. [ 61 ] Taking

part in the protests in Burnaby and Richmond were contrary to the undertakings he gave to stay off the roadways. I understand that Mr. Schortinghuis was not yet convicted, but the undertaking was simple to understand. It is aggravating that Mr. Schortinghuis endangered himself, members of the public, and public servants by not getting off the ladder when requested and directed by police in Richmond, also refusing police requests to clear the roadway in the first instance.

As stated by my sister judge, Burgess, in Panganiban at paragraph 40: Although some of the authorities I have cited are concerned with contempt of court, the principles also apply to protestors who go too far and commit criminal offences. The authorities are clear that general and specific deterrence is the governing principle in this kind of case.

This does not mean other principles, such as rehabilitation, should be given no weight, but given the motivation and ideology behind these offences, the relevance of rehabilitation is diminished and can usually be accomplished through a probation order. [ 62 ] Judge Burgess notes that there are exceptions to this. There are a number of cases where conditional discharges and sentences less than incarceration have been given.

Judge Burgess states in paragraph 41 of her decision that people protest to draw public attention to an issue that they feel strongly about, and many Canadians are concerned about climate change, but when protestors cross the line into criminal acts, the Courts must sentence in a way that clearly demonstrates to the public what to expect as a penalty for committing such offences. I do not think there are many people who deny climate change in this country.

It is not the message of the protestors; it is the way they go about it. [ 63 ] In terms of sentence, after considering the sentencing principles and s. 718, 718.1, and 718.2, the mitigating and aggravating principles, which include Mr. Schortinghuis' individual circumstances, I find that in this specific case, and this is not a general precedent for others to come after, a conditional discharge with 24 months' probation and the conditions that I will read out is a fit and fair sentence. [ 64 ] Mr. Schortinghuis is a first offender who has mental health issues and ADHD.

He fits the profile of some persons that I find, unfortunately, are used by organizations as foot soldiers while those behind and organizing stay safe and sound. If I sentenced Mr. Schortinghuis to jail time served, I would in effect be imposing a criminal record reflecting a jail sentence of 21 days to a first offender and the principles in 718.2 direct that this be a factor I consider. [ 65 ] Crown has submitted that a jail sentence would serve as a general and specific deterrent. In terms of specific deterrence, Mr. Schortinghuis has already been incarcerated.

I find this fact serves as both a specific and general deterrent as the public are aware that people will be denied bail if they breach conditions; and they are in a reverse onus and will likely stay in jail until their trial or until they

plead guilty. The principles of sentencing, especially for a first offender with Mr. Schortinghuis' characteristics, require incarceration to be used as a last resort where there are no other reasonable options. I am not saying that there will not be a case where incarceration for a first offender is not a reasonable option, but in this case, I do not find it warranted. [ 66 ] A conditional discharge in this case does not offend the principle of parity. Conditional discharges have been granted fairly recently for similar offences and that, at one time, as Crown has fairly outlined, was the Crown position.

The offences occurred close to each other prior to any conviction, and I also note the principle of totality and that, in this case, Mr. Schortinghuis has pled guilty to every offence he was charged with. [ 67 ] So, sir, I am going to grant you a conditional discharge on the following terms. [ 68 ] You must comply with this probation order for a term of 24 months. The conditions are you must keep the peace and be of good behaviour. You must appear before the Court when required to do so by the Court.

You must notify the Court or the probation officer in advance of any change of name or address and promptly notify the Court or the officer of any change of employment or occupation.

Those are compulsory conditions. [ 69 ] In terms of the following conditions, you must not block or impede traffic or pedestrians on any road or highway or public space in the Province of British Columbia. [ 70 ] You must report in person to a probation officer at 275 East Cordova Street before 3:00 p.m. on Monday, July 4, 2022, and thereafter, as directed for the sole purpose of performing and completing 125 hours of community service work to the satisfaction of the probation officer. [ 71 ] The hours that you attend at an educational, vocational, or counselling program approved by your probation officer will be credited to hours of community service work.

This means if you are attending the Auto Repair course, you are going to school for some other program that the probation officer has approved, or you are getting counselling that the probation officer has approved, you will get a credit for your community service hours. I have not assigned the maximum number of community service hours that I could, given that you have been in pretrial custody. [ 72 ] I note that you are talented with mechanics.

It is always good if community service work is meaningful and you would be a good candidate to do your community service work at a facility that serves seniors assisting with wheelchair maintenance or other such tasks, or doing volunteer work like you have done in the past or community service work for Meals on Wheels, the food bank, are other options that you can discuss with the probation officer which will allow you basically to meaningfully redress the harm that you have caused which is also one of the sentencing principles. [ 73 ] If you complete your two years of probation successfully, you will not have a criminal record.

That hangs over your head. This puts the onus on you to make sure that you do not reoffend. If you reoffend, you will likely lose the benefit of a conditional discharge and face, obviously, a sentence for any new charges. [ 74 ] So I have not heard submissions on the victim impact surcharge. Crown position? [ 75 ] CNSL E. LENO: I think it is in my friend's onus to suggest whether it should be waived or not. [ 76 ] THE COURT: All right. [ 77 ] CNSL E. LENO: I don't think he's working at the moment, so. [ 78 ] THE COURT: No, he is not. Defence, Mr. Abdulmalik? [ 79 ] CNSL A.

ABDULMALIK: I guess in this situation, Your Honour, I would ask if it could be waived in the moment. He is not working. He is trying to get work, but he doesn't have anything as of yet, so in this situation considering where he's at, I'd ask if it could be waived in his circumstances. [ 80 ] THE COURT: Crown position? [ 81 ] CNSL E. LENO: I take no position. [ 82 ] THE COURT: All right. [ 83 ] CNSL E.

LENO: Yes. [ 84 ] THE COURT: I have ordered community service work which, hopefully, will be meaningful service work and that, in my view, lessens the need for a financial penalty since he will be providing services in the community. I also note that he is currently not working and has been accepted into a program which will probably take up a lot of his time. The other time, you know, there is community service work, although it can be credited to a school. So I am going to waive the victim surcharge. [ 85 ] I will just let you know, sir, that for

summary offences, I think it is $100 a charge. So normally, it would be $500 that you would pay, but I am waiving it in this case. [ 86 ] I hope, sir, that I do not see you before the Courts again. The ball is in your court to make sure that you complete your probation for two years. I wish you all the best. Thank you. [ 87 ] THE CLERK: Thank you, Your Honour. Is he required to sign the order? [ 88 ] CNSL E. LENO: They will deal with that before they release him, I think.

[ 89 ] THE COURT: Yes. Yes. [ 90 ] CNSL E. LENO: Yes. [ 91 ] THE COURT: He is in custody. So sir, you will get the order, sign it, and then -- where are you situated right now? Are you in North Fraser? [ 92 ] THE ACCUSED: Yes, I'm in North Fraser. [ 93 ] THE COURT: Is there anyone -- is his mom in the courtroom or anything? No? I do not know how he gets home. [ 94 ] CNSL E. LENO: She was earlier. [ 95 ] CNSL A. ABDULMALIK: She was -- she just left, Your Honour.

I think there's a possibility for -- they might provide him a bus pass, but I will be in contact with his mother, as well, too, to let her know the situation and what travel arrangements can be made. [ 96 ] THE COURT: All right. Yes, it is -- as I say, it is unfortunate that the spring order I granted yesterday could not be put into effect, but -- so, sir, once you sign the order, hopefully, your mother or someone can come pick you up or I do not know if the sheriffs give out bus -- do they give out bus passes? [ 97 ] THE SHERIFF: [Indiscernible] bus passes for city transport. [ 98 ] THE COURT: All right.

All right. So if you cannot get a ride home, then Mr. Sheriff advises that a bus pass will be provided. All right? [ 99 ] Thank you, and I thank Crown for very detailed submissions and I thank defence counsel for submissions. Thank you. (REASONS CONCLUDED)