R. v. Henry, 2011 ONCJ 501

COURT FILE No.: Toronto Region DATE: 2011·09·28 Citation: R. v. Henry , 2011 ONCJ 501 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — ROBIN HENRY Before Justice Andrea E.E. Tuck-Jackson Heard on September 6, 2011 Reasons for Judgment released on September 28, 2011 Ms. C. Rhinelander .................................................................................................... for the Crown Mr. A. Harnett .................................................................................... for the accused Robin Henry TUCK-JACKSON J.: I.

Overview [ 1 ] Robin Henry appears before me for sentencing in relation to two counts of committing mischief to property of a value exceeding $5,000 and one count of wearing a disguise with the intention of committing an indictable offence. These offences arose during the course of public protests in response to the meeting of the leaders of those nations that comprise the G20. That meeting occurred in late June 2010 in Toronto. [ 2 ] The Crown has elected to proceed by way of indictment in relation to these offences. By way of penalty, Ms.

Rhinelander, on behalf of the prosecution, seeks a global sentence of nine to twelve months in custody, followed by 12 months of probation. Mr. Harnett, on behalf of the defence, invites the Court to suspend the passing of sentence and place Mr. Henry on probation for a period of 12 to 24 months. II. Circumstances of the Offences [ 3 ] On June 26 and 27, 2010, the city of Toronto hosted the G20 summit, bringing together numerous heads of state.

As the leaders met, many individuals congregated in the streets of downtown to participate in peaceful protests, thereby exercising their constitutionally protected right to freedom of expression in a manner that was respectful of divergent views. Amongst those were other individuals who engaged, for various reasons, in behaviour that could not be considered, by any objective standard, as respectful of the rights of others. Robin Henry was one such individual. [ 4 ] Mr. Henry was part of a group engaged in what has been referred to as “Black Bloc” tactics.

Dressed in black, from head to foot, his face partially concealed by a black bandanna pulled up over the lower half of his face, Mr. Henry along with similarly clad individuals moved amongst the respectful protesters, engaging in the wilful destruction of private property along the way. [ 5 ] In particular, on the afternoon of June 26, 2010, Mr. Henry smashed a large, double pane window belonging to the Starbucks café located at 184 Yonge Street, Toronto, with some type of object. This act of wilful destruction was captured by a photographer.

A copy of the relevant image is reproduced at page 14 of Tab 3 in what has been marked as Ex. 1 in these proceedings. That image depicts damage to a second double pane window, seemingly caused by a garbage can. Mr. Henry is not responsible for that damage. Mr. Henry can be seen marching amongst the crowd with the arm of a mannequin slung over his shoulder in an image reproduced at page 12 of Tab 3 of Ex. 1. Using the mannequin arm, he also smashed a large window belonging to a Bell Mobility store, at 444 Yonge Street. That second act of wilful destruction was similarly captured by a photographer.

The relevant images are reproduced at pages 17 to 20 and at pages 22 to 25 of Tab 3 of Ex. 1. It is conceded by the Crown that he is not responsible for all of the window damage depicted in those images. [ 6 ] The impact of the damage caused by Mr. Henry has been high. At Tab 4, of Ex. 1, the Crown has reproduced a letter from Mr. Lesley Warner, the District Manager of Starbucks Coffee Company, setting out the costs incurred by the company as a result of the damage perpetrated by Mr. Henry. Costs associated with the repair of the double pane windows were just over $26,000. Further,

the location had to shut down for most of the June 26 – 27, 2010 weekend and, in the result, incurred a loss in sales of approximately $6,000, together with the cost of approximately $1,500 which it paid to its employees for missed shifts. It would be unfair to attribute all of this loss solely to Mr. Henry’s actions. However, he is responsible for part of it.

Bell Mobility has not provided any statement as to costs associated with the damage sustained by its location near College and Yonge Streets. [ 7 ] At Tab 5 of Ex. 1, the Crown has reproduced a letter authored by Chief William Blair of the Toronto Police Service. It does not address the impact of Mr. Henry’s actions, per se .

However, it does comment on the overall financial, psychological and emotional costs suffered by the inhabitants of Toronto proximate to the location of the protest routes as a result of individuals who engaged in “118 occurrences…as a result of G20 violence, including arson, assault, break and enter, 52 mischief to property and one robbery”. I am quite prepared to conclude that the overall financial, emotional and psychological impact of such criminal behaviour has been high. I further agree with Chief Blair’s assertion that “the reputation of Toronto has suffered greatly”. [ 8 ] The motivation behind Mr.

Henry’s actions is set out in a letter which he wrote and which has been marked as Ex. 2 in these proceedings. Mr. Henry, who lives on London, Ontario, had become friends with a tightly knit group who had, as he described it, “some strong political beliefs”. When they looked at what was happening in the world, unfairness was everywhere. They spent a lot of time focusing on what was going wrong with society. Many of the ideas they discussed were “pretty radical”. The letter goes on to explain: Talk about the G20 was getting heated both in the media and within the group.

Because of the past history of the protests, I knew that there would likely be clashes with the police, as had happened in Pittsburg and London. I did not want to be a part of any violence or destructive protest, but felt certain, from media and discussions with activists, that it would happen… I wanted to be part of the protests, but not the violence, so I researched first-aid and how to work with people who get injured in this type of protest. I wanted to be of service, I did not want to be destructive. I equipped myself with cider vinegar and bandanas to distribute should gas be employed.

Milk of Magnesia for pepper spray and liquid stitches for cuts. With my “Medic Bag” I set off for Toronto. I arrived and the protests were in full swing. People were shouting, marching and toting signs. There was an angry electricity in the air. I initially marched in two separate protests that were peaceful, but chaotic amongst the crowd. I felt my heart beating and energy rising. When I joined the third protest, the weather was cold and raining and windy and my physical discomfort increased as the crowd grew. They were shouting and screaming and I joined in.

The crowd was on the move and came to a standstill at an intersection blocked by police. There were thousands of people chanting, drums being beaten, an electric fear in the air. The police forced the crowd away from the blockade and I found myself running. I was sure the tear gas would come any moment. I ran, not knowing where I was going and found myself on a street. Sudden calm. The sun came out and I was on a street with a hundred or so people. I recognized some faces and within a minute or so they had all pulled black bandanas on their faces.

I pulled my headband, an old cut up white sheet, down over my face and put on my goggles I had brought. Ready for tear gas. I distributed torn white sheets soaked in vinegar amongst the crowd. The crowd was moving and disbursing but the anger was high. Windows were being smashed left and right. It was a mob mentality and I was part of it. My heart was racing, I was scared and exhilarated and felt almost outside of myself. At some point over the next few minutes, someone passed me a rock and I launched it through a window. A few minutes later I found an arm of a display mannequin on the sidewalk.

I picked it up and I used it to cause more destruction. [ 9 ] During sentencing submissions, Mr. Henry clarified that his acts of property damage were not intended to be a form of political expression. Instead, he simply got caught up in a mob mentality and lost self-control. The Crown takes no issue with Mr. Henry’s assertion that he did not attend the G20 protests with the intention of damaging private property. III. Circumstances of the Offender [ 10 ] Robin Henry is a 22-year-old first offender. He was 21 at the time he committed these offences. He resides in London, Ontario, with his mother and step-father.

His father and step-mother live in Africa. As was evident by those who have attended court with him, Mr. Henry enjoys the ongoing support of his parents and extended family. [ 11 ] In his youth, Mr. Henry was diagnosed with Attention Deficit Disorder and a number of learning disabilities which impacted his reading and organizational skills. He had counselling in the past to assist him in overcoming these challenges as he made his way through school. In addition, Mr. Henry has had to cope with depression. His symptoms began when he was a teen. [ 12 ] Upon his graduation from high school, Mr.

Henry enrolled in a culinary program at Fanshawe College in London. [ 13 ] In the months leading up to the predicate offences, Mr. Henry lived with friends, attended culinary school and worked as a cook at a government facility. He fell in with the group of political activists to which I referred earlier. It struck me that he regarded them as a sort of family. As he put it in Ex. 2, “[t]hey encouraged my art and my music and all of my idiosyncrasies, seemingly without judgment.

I felt welcomed and that I belonged to something.” He also noted, “I felt for the first time in my life, accepted by a group.” [ 14 ] Having had an opportunity to read the various letters provided by the defence in support of Mr. Henry, the Court was left with the impression that Mr. Henry has, at times, felt like an outsider within his family and the community at large. In his mind, he has not always “fit in”. [ 15 ] Following his conduct at the G20 protests, Mr. Henry began to feel shameful about his behaviour.

Ultimately, his surrender to the police, which occurred in December 2010, very shortly after the police had contacted Mr. Henry’s mother, resulted in a sense of relief for him. [ 16 ] After Mr. Henry was released from custody, he made a number of key choices. He attended a psychologist to explore his emotions and to gain perspective into his future. Under the care of a physician he is taking medication for his depression. He

disassociated from his radical peer group. He has been gainfully employed, as has been confirmed by the letters marked as Ex. 8A and8B and made plans to return to school to study art at Fanshawe College. In an effort to redirect his energy and make amends for hisactions, he completed more than 130 hours of volunteer service at Street Connection, a youth drop-in centre in London. The details ofthat work are summarized in the letter of Dick Rastin, marked as Ex. 7 in these proceedings.

Further, for a little more than a month thispast summer, he worked in an orphanage in north Botswana and engaged in other volunteer work in the nearby community. It is clearfrom the letters marked as Ex. 9B and 9C that Mr. Henry made a favourable impression upon those under whose supervision he worked.He was said to have demonstrated empathy, maturity and hard work. [17] I have read various character letters authored by his mother, his father, his uncle and his uncle’s partner, who has alsoserved as his surety, and family friends. Those letters have been marked as Ex.’s 4A, 4B, 5A, 5B, 6A, and 6B.

The authors variouslydescribe Mr. Henry as “joyous”, “easy-going”, “loving and affectionate”, “artistic”, “curious”, “funny”, “energetic”, “sensitive”,possessing a “wonderful spirit”, and as “an impressive and intelligent young man”. As a child he would intervene to protect others whowere being bullied. He is an individual who has self-identified as “Straight Edge” in that he neither drinks alcohol, takes illegal drugs norengages in promiscuous behaviour.

He was also described as a “square peg in a round hole” and as someone who “has looked at theworld through a different set of lenses than most of the population”. The following excerpt from Ex. 6A, a letter written by Sally Cozens,seems to accurately sum up Mr. Henry: …Robin is one of those remarkable young people for whom special gifts are a challenge in the early years, but who have the ambition,talent and innate moral character to grow into community leaders.” Ms.

Cozens goes on to write: I believe that Robin Henry made a mistake by underestimating the power of the mob mentality and overestimating his own capacity tomake good judgements in an unfamiliar situation. He is someone for whom forgiveness and redemption will be repaid in good works forthe rest of his life. I believe in Robin, and see in him the potential to be an exemplar with both local and international levels ofcommunity… [18] It is clear that in the eyes of friends and family who know him well, Mr. Henry’s behaviour in June 2010 was very muchout of character.

It is equally clear that these people will continue to support him in any way that they can, largely because they believein him. IV. Relevant Sentencing Principles [19]

Section 718 of the Criminal Code provides that the fundamental purpose of sentencing an adult offender is to contribute,along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing justsanctions that have certain objectives. [20] It is common ground between the parties that the relevant sentencing objectives in this case are to denounce Mr. Henry’sunlawful conduct, to deter like-minded individuals from engaging in such conduct and to rehabilitate Mr. Henry.

Those sentencingprinciples must inform the nature, composition and length of the sentence I impose in this case. I will now turn to a brief discussion ofeach of those sentencing objectives and how they apply to the positions advanced by the parties. [21] The objective of denunciation requires that a sentence communicate society’s condemnation of the offender’s conduct.This concept was best explained by the Supreme Court of Canada in R. v. C.A.M., (SCC), [1996] S.C.J.

No. 28 at ¶ 81: In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should bepunished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law. As Lord Justice Lawtonstated in R. v. Sargeant (1974), 60 Cr. App.

R. 74, at p. 77: “society, through the courts, must show its abhorrence of particular types ofcrime, and the only way in which the courts can show this is by the sentences they pass”. [22] The Supreme Court went on to explain: The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply avast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear incommitting an enumerated offence. Our criminal law is also a system of values.

A sentence which expresses denunciation is simply themeans by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour,judicial sentences should also be imposed in a manner which positively instils the basic set of communal values shared by all Canadiansas expressed by the Criminal Code. [23] By reason of its purpose, denunciation necessarily focuses on the impugned conduct and not the circumstances of theoffender.

However, the focus cannot simply be on the delict which satisfies the essential elements of the offence: instead, to bemeaningful, the inquiry must consider the context of the offence. Surely, for example, mischief to property which is the product ofreckless abandon or intoxication would merit one type of denunciatory sentence while the same offence arising in the context ofdeliberate destruction in the name of political expression would compel another in communicating society’s condemnation of therespective conduct. [24] The objective of a deterrent sentence is its operational value.

A sentence focused on general deterrence operates todiscourage like-minded members of the community, as distinguished from the particular offender who is being sentenced, from engaging in the proscribed conduct. As noted in Sentencing, 7th Ed. by Clayton Ruby, et al. at page 7, § 1.21, “the assumption underlyingdeterrence as a goal of sentencing is that the threat or example of punishment discourages crime.” I have been mindful, however, that theSupreme Court of Canada in R. v. Proulx, 2000 SCC 5 , [2000] S.C.J.

No. 6 has cautioned against over-reliance on deterrence asa principle of sentencing, and has recognized that the deterrent value of sentencing is somewhat speculative. [25] As noted in R. v. Gladue, (SCC), [1999] S.C.J. No. 19 at ¶ 57, although imprisonment is intended to

serve the goals of denunciation, deterrence, separation and rehabilitation, “there is widespread consensus that imprisonment has not beensuccessful in achieving some of these goals”. Further, I have borne in mind that the Criminal Code requires that the sentencing judge notonly consider, but also impose, a non-custodial option when it would satisfy the relevant sentencing goals, including deterrence anddenunciation. Paragraph 718.2(

d) of the Code states that “an offender should not be deprived of liberty, if less restrictive sanctions maybe appropriate in the circumstances”. Further, ¶ 718.2(

e) of the Code states, in part, that “all available sanctions other than imprisonmentthat are reasonable in the circumstances should be considered for all offenders…” [26] This Court must inevitably confront the question of whether a suspended sentence and probation is capable, as thedefence contends, of satisfying the sentencing objectives of denunciation and general deterrence in cases of wilful property destruction inthe context of political expression, such as this one. [27] Though clearly not a custodial sentence, a suspended sentence and probation can be replaced by a custodial sentencewhere the offender, while serving out the probation in the community, is convicted of a new offence, including the offence of failing tocomply with the original probation order.

See: § 732.2(5) of the Criminal Code. In these circumstances, the offender is brought backbefore the judge who originally suspended the passing of sentence and placed the offender on probation and that judge resentences theoffender. This idea was aptly explained by the Nova Scotia Supreme Court, Appellate Division, in R. v. Thompson, (NS CA), [1983] N.S.J. No. 414 where, at ¶ 7, Hart J.A., wrote: …Although the general deterrence of a period of imprisonment does not appear on the surface of this arrangement it must always beremembered that it is there.

The offender who chooses to avoid the controls chosen for his rehabilitation may very well end up in prison,and as long as the public is assured of this then all of the proper elements of sentencing are there. [28] I further note that in R. v. Proulx, supra, at ¶ 27 the Supreme Court of Canada has held that “the penalty for breach ofprobation is potentially more severe than that for breach of a conditional sentence.” By “conditional sentence”, the Court was referring toa conditional sentence of imprisonment.

The Court went on to explain that: …In the case of a breach of probation, the offender is subject to the revocation of the probation order and can be sentenced for theoriginal offence (in cases where a suspended sentence was rendered): see s. 732.2(5). By contrast, in the case of breaches of conditionalsentences, the maximum punishment available is incarceration for the time remaining of the original sentence (s. 742.6(9))… [29] The principles of denunciation and general deterrence must be balanced with that of rehabilitation. Mr. Henry is ayouthful first offender.

As such, I must ensure that any sentence I impose conforms with the Ontario Court of Appeal’s direction in R. v.Priest, (ON CA), [1996] O.J. No. 3369, where the Court held at page 8: The primary objectives in sentencing a first offender are individual deterrence and rehabilitation.

Except for very serious offences andoffences involving violence, this court has held that these objectives are not only paramount but best achieved by either a suspendedsentence and probation or a very short term of imprisonment followed by a term of probation… With respect to the approach to be taken in respect of youthful first offenders whose crimes must attract a custodial sentence, the Courthad the following to say at page 11 of its decision: Even if a custodial sentence was appropriate in this case, it is a well-established principle of sentencing laid down by this court that afirst sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather thansolely for the purpose of general deterrence… [30] Rehabilitation as a sentencing objective is aimed at treating and hopefully curing an offender of the risk factors thatcaused him or her to engage in the criminal conduct in the first place.

The goal of rehabilitation is generally best achieved through theimposition of probation whereby the offender is supervised within the community and has ready access to support systems and otherresources, which can include counselling programs, designed to address the offender’s criminogenic factors. The Supreme Court ofCanada in R. v.

Proulx, supra, at ¶ 23 recognizes that a suspended sentence and probation is, primarily, a rehabilitative sentencing tool. [31] As an alternative sentence, the defence has submitted that if I conclude that nothing short of a sentence of imprisonmentwould be adequate to address the principles of denunciation and general deterrence in this case, then I ought to impose a conditionalsentence of imprisonment. It is a form of punishment whereby the offender is imprisoned within his or her home, and not a traditionalcustodial facility.

The deprivation of liberty generally manifests itself through the imposition of house arrest and not simply a curfew. Iffound in breach of the house arrest condition, or any other term of the sentence, without reasonable excuse, there is a presumption thatthe offender serve the remainder of his or her sentence in a provincial reformatory. See: R. v. Proulx, supra, at ¶ 39. [32] Eligibility for a conditional sentence of imprisonment is dependent upon certain statutory prerequisites enumerated in §742.1 of the Criminal Code.

Those prerequisites are as follows: (1) the predicate offence is not a serious personal injury offence as defined in § 752 of the Code, a terrorism offence or a criminalorganization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more; (2) the predicate offence is not punishable by a minimum term of imprisonment; (3) the Court imposes a sentence of imprisonment of less than two years; (4) the Court is satisfied that service of the sentence in the community would not endanger the safety of the community; and (5) the Court is satisfied that a conditional sentence would be consistent with the fundamental purpose and principles of sentencing setout in § 718 to 718.2.

[ 33 ] The decision in R. v. Proulx , supra , has set out, inter alia, the following principles about the nature and appropriateness of a conditional sentence of imprisonment for eligible cases at ¶ 127:

(1) The conditional sentence of imprisonment was enacted both to reduce reliance on incarceration as a sanction and to increase the use of principles of restorative justice in sentencing.

(2) A conditional sentence should be distinguished from probationary measures. Probation is primarily a rehabilitative sentencing tool. By contrast, Parliament intended conditional sentences to include both punitive and rehabilitative aspects. Therefore, conditional sentences should generally include punitive conditions that are restrictive of the offender’s liberty. Conditions such as house arrest should be the norm, not the exception.

(3) No offences are excluded from the conditional sentencing regime except those with a minimum term of imprisonment, nor should there be presumptions in favour of or against a conditional sentence for specific offences.

(4) The requirement in ¶ 742.1(

a) of the Criminal Code that the judge impose a sentence of imprisonment of less than two years does not require the judge to first impose a sentence of imprisonment of a fixed duration before considering whether that sentence can be served in the community. Although this approach is suggested by the text of ¶ 742.1(a), it is unrealistic and could lead to unfit sentences in some cases. Instead, a purposive

interpretation of ¶ 742.1(

a) should be adopted. In a preliminary determination, the sentencing judge should reject a penitentiary term and probationary measures as appropriate. Having determined that the appropriate range of sentence is a term of imprisonment of less than two years, the judge should then consider whether it is appropriate for the offender to serve his or her sentence in the community.

(5) As a corollary of the purposive

interpretation of ¶ 742.1(a), a conditional sentence need not be of equivalent duration to the sentence of incarceration that would otherwise be imposed. The sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence.

(6) The requirement in ¶ 742.1(

b) that the judge be satisfied that the safety of the community would not be endangered by the offender serving his or her sentence in the community is a condition precedent to the imposition of a conditional sentence, and not the primary consideration in determining whether a conditional sentence is appropriate. In making this determination, the judge should consider the risk posed by the specific offender, not the broader risk of whether the imposition of a conditional sentence would endanger the safety of the community by providing insufficient general deterrence or undermining general respect for the law.

Two factors should be taken into account: 1. the risk of the offender re-offending; and 2. the gravity of the damage that could ensue in the event of re-offence. A consideration of the risk posed by the offender should include the risk of any criminal activity, and not be limited solely to the risk of physical or psychological harm to individuals.

(7) Once the prerequisites of § 742.1 are satisfied, the judge should give serious consideration to the possibility of a conditional sentence in all cases by examining whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in § 718 to 718.2. This follows from Parliament’s clear message to the judiciary to reduce the use of incarceration as a sanction.

(8) A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be. There may be circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct or to deter similar conduct in the future.

(9) Generally, a conditional sentence will be better than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and the community, and promotion of a sense of responsibility in the offender and acknowledgement of the harm done to the victim and the community.

(10) Where a combination of both punitive and restorative justice objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration. Where objectives such as denunciation and deterrence are particularly pressing, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative justice goals might be achieved.

However, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of lesser importance, depending on the nature of the conditions imposed, the duration of the sentence, and the circumstances of both the offender and the community in which the conditional sentence is to be served.

(11) A conditional sentence may be imposed even where there are aggravating circumstances, although the need for denunciation and deterrence will increase in these circumstances. [ 34 ] With one notable exception, the parties agree that all of the statutory pre-requisites have been satisfied.

Where they depart is on the issue of whether a conditional sentence of imprisonment would be consistent with the fundamental purpose and principles of sentencing. [ 35 ] In addition to the sentencing objectives set out above, I must also bear in mind that the sentence I impose in this case be proportionate to the gravity of the offence and the degree of responsibility of the offender. This requires a consideration of both the gravity of the offence and the moral blameworthiness of the offender. V.

Summary of Aggravating and Mitigating Factors [ 36 ] Counsel for the parties have proposed a range of sentence. I agree that a fit and just sentence that would meet all of the relevant sentencing principles falls somewhere within the proposed range. Where within that range the sentence ought to fall is, in part, a function of the aggravating and mitigating factors presented by the circumstances of the offence and of the offender. Aggravating factors are those that push the appropriate sentence towards the higher end of the range. Mitigating factors are those that push the appropriate sentence towards the lower end of the range.

[ 37 ] I will begin with a review of the aggravating factors:

(1) Mr. Henry engaged in brazen and wilfully destructive behaviour which resulted in a significant direct cost to his victims and, coupled together with the actions of others engaged in Black Bloc techniques, caused tremendous inconvenience and shame to those who lived near the epicentre of the unrest. It is most fortunate that no bystanders were injured as a result of his reckless actions;

(2) Mr. Henry did not perpetrate a single act of destruction. Instead, he embarked upon a pattern of rampage, damaging at least two businesses. It is of concern to this Court that the experience of the first incident did not discourage him from participating in subsequent ones; and

(3) Mr. Henry’s actions served to diminish the legitimate exercise of political expression by those protestors who chose not to engage in criminal conduct. In so doing, he, and like-minded individuals, deprived them of their right to be properly heard. [ 38 ] To be fair to Mr. Henry, it is important to point out the absence of aggravating factors in this case. I note, for example, that no one suffered any injury as a result of Mr. Henry’s actions. [ 39 ] I will now turn to the mitigating factors. They may be summarized as follows:

(1) Mr. Henry has pled guilty to these offences, thereby taking responsibility for his actions. I accept that he is genuinely remorseful for his actions. That remorse finds expression not simply in his plea of guilt, but also through his words to the Court, his family, and through his post-offence volunteer work where he has endeavoured to make amends for his actions;

(2) Mr. Henry has no previous criminal antecedents. Indeed, by all accounts he has led a pro-social life up to the events which comprise the charges before the Court;

(3) He has gained insight into his actions. The following excerpts from Ex. 2 are telling in this regard: “…I do not want to give you the impression I am at all proud of my actions that day. I am in fact astounded that I was capable of doing what I clearly did. I was in a mob mentality and behaved like a thug. I acted in a way that cuts across what I believe is right and correct…Each day that passes, I realize that my choices at the protest were the worst choices I have ever made. Not because I got caught, that has nothing to do with it.

I made bad choices and I wouldn’t respect that behaviour in anyone and I especially hate that it was me who did it…I realize that my actions did more harm than good. People who had been sympathetic to the protestors changed their views after the violence and destruction. In no way did my actions move forward an agenda of a more peaceful and caring society.” It is clear from these excerpts that he has distanced himself from those individuals who, and those ideas which, contributed to his criminal conduct;

(4) The constellation of factors present in Mr. Henry’s life, prompting him to act out as he did on June 26, 2010, are no longer present. He has rejected the troubling aspects of his former life. He has surrounded himself with pro-social individuals, and he is immersed in employment, school and volunteer work. He has availed himself of counselling which, I would hope, will assist him in realizing that he is not an outsider. Accordingly, I am prepared to conclude that his risk for reoffending is minimal if existent at all;

(5) As noted above, Mr. Henry has worked towards making amends for his criminal conduct through local community service and volunteer work abroad;

(6) Since his release from custody, he has performed well under supervision. There has been no suggestion that he has not complied strictly with the terms of his bail conditions;

(7) Mr. Henry spent two days in pre-trial detention. This time in custody, no doubt, had a deterrent effect upon him; and

(8) Mr. Henry has been the subject of strict terms of judicial interim release which have curtailed his liberty. Since December 2010, he has been subject to a 10:00 p.m. curfew with very limited exceptions. That curfew was lifted for about a month to allow him to travel to Africa to perform volunteer work. I understand that the curfew has rendered it very difficult for him to pursue his musical interests as a performer. While I have not placed a great deal of weight on this particular factor I am still prepared to regard it as one that mitigates sentence. [ 40 ] In sum, Mr.

Henry has shown tremendous potential for rehabilitation. VI. Conclusion [ 41 ] Our community must steadfastly protect the right to freedom of political expression. It is the foundation on which we progress as a community through the respectful exchange of ideas. Our laws must operate to promote it. However, with that right comes the responsibility of exercising it in such a way that our words and actions do not unreasonably encroach upon the legally protected rights of others. While the specific acts of destruction committed by Mr.

Henry were not, in and of themselves, a form of political expression, he, nonetheless, attended the G20 protests as part of a group apparently intent on engaging in what can only be described as destruction dressed up as political protest. Accepting that the views expressed by that sub-group during the currency of the protest have value within the forum of political debate, the manner in which they were expressed do not and such behaviour cannot be condoned. It is clear that Mr. Henry was swept up by the swell of destruction and was a willing participant in it. I adopt the sentiments expressed in R. v.

Fuller , [1995] Q.J. No. 3127 (Mun. Ct.) at ¶ 48 where the learned sentencing judge, referencing behaviour during the course of a riot, noted, “[the accused’s] actions have a direct impact on the multitude. His acts encourage others to take

part in the riot. It contributes to the excitement, fervour, intimidation and dangerousness of the unlawful assembly.” [ 42 ] The sentence that I impose must denounce such behaviour and operate to deter like-minded individuals from engaging in the future in the wilful destruction of property in the name of political expression. To do otherwise would be to diminish the democratic values upon which this city, this province and this country have been built. That Mr. Henry committed these offences while disguised suggests that he knew what he was doing was wrong.

Frankly, had he been confident in the moral and legal legitimacy of his actions, he would have had no need to mask his identity. I am satisfied that he donned a mask not simply to protect himself against tear gas, but also

to hide from detection. In this respect, Mr. Henry’s actions, and other examples of Black Bloc techniques evident during the protests, are distinguishable from that which comprises bona fide civil disobedience where the offender makes no effort to conceal the commission of the offence, or his or her identity, or attempts to escape apprehension for the offence. That person is prepared to be held accountable for his or her actions at the very point they occur. [ 43 ] Sentencing is a complex process, largely because it must strike a balance between competing principles.

Though it must advance societal-focused principles of sentencing such as denunciation and deterrence, it must also be responsive to the unique background and needs of the individual who is being sentenced. To simply make an example of an offender’s conduct through punishment is to ignore other well-developed principles of sentencing in this jurisdiction, including rehabilitation, reintegration and restorative justice.

It is well accepted in Canadian law that a sentence that is responsive to a particular offender is also in the public’s long term interests, particularly where that offender is a youthful, first offender. [ 44 ] The aggravating factors in this case are such that a sentence which does not include a component of imprisonment would be insufficient to advance the fundamental sentencing principles of denunciation and general deterrence. The underlying offences are serious and Mr. Henry’s degree of moral blameworthiness is high. To conclude that Mr.

Henry engaged in mere property offences, behaviour which normally does not attract a custodial sentence in the case of a youthful first offender, is to ignore the context of his behaviour. This was not simply the product of youthful and/or intoxicated exuberance. Instead, it arose in the context of destructive political expression, the effect of which was to detract from the value of those in attendance engaged in respectful political expression and to cause tremendous embarrassment and cost to our city and the businesses which support its inhabitants. Mr.

Henry did not perpetrate an isolated, minor act of destruction; rather, he embarked upon a path of destruction, aided by objects of which he took possession, and leaving considerable damage in his wake. The principles of general deterrence and, particularly, denunciation require that Mr. Henry’s sentence include some form of imprisonment. [ 45 ] I have given careful consideration to the Crown’s arguments in favour of a custodial sentence in the range of 9 to 12 months and, in so doing, have considered the cases advanced by the Crown in support of that position. [ 46 ] The unreported decisions of R. v.

Catenacci , dated May 13, 2011 and R. v. Loughrin , dated February 2011, both of this Court, relate to the prosecution of offences associated with the G20 protests. In Catenacci , Weinper J. imposed a 17-month custodial sentence, followed by probation, for one count of arson and one count of failure to comply with a probation order. The object of the arson was a police car. Mr. Catenacci lit a piece of paper and threw it inside of the vehicle. The car was ultimately engulfed by flames. There were hundreds of people around at the time. It was not suggested that he was engaged in Black Bloc techniques.

As revealed by Weinper J.’s Reasons for Sentence, Mr. Catenacci has a record comprised of 17 entries and, indeed, was on probation when he damaged the police car during the protests. The evidence heard by Weinper J. supported the inference that his response to community supervision has been poor. Mr. Catenacci has a long history of drug abuse. There was nothing in the Reasons to suggest that he had made any efforts toward post-offence reparation.

In my view, these facts are highly distinguishable from those before me in this case. [ 47 ] In Loughrin , Bigelow R.S.J. imposed a six-month conditional sentence of imprisonment, followed by a period of probation, for one count of mischief to property of a value over $5,000. The object of the damage was, once again, a police car. Mr. Loughrin jumped on it and participated in tipping it over. He also was seen to encourage others to join in. The resultant damage to the vehicle was approximately $34,000. Mr.

Loughrin had demonstrated involvement in community service work and was enrolled in post- secondary education. He came before the court as a youthful first offender. I have found this case to be somewhat analogous to the facts before me. [ 48 ] Ms. Rhinelander drew to my attention two other cases for my consideration. The first is R. v. Fuller , supra . In Fuller , the presiding judge imposed a six-month custodial sentence, followed by probation, for one count of mischief of property under and theft under in relation to a street sign. The offences arose out of what may be referred to as the “Stanley Cup Riot”.

At ¶ 32 of the Reasons, it is noted that “it is clear in many of the decisions involving riots from the various provinces, that the principle [sic] objective of a sentence in such cases is one of general deterrence”. The learned sentencing judge goes own to point out that normally such offences must attract a custodial disposition. I have placed limited weight on this case, in large part because it pre-dates Bill C-41, the amendment to the Criminal Code which, in effect, directed sentencing judges to work towards reducing the rates of incarceration. I also note that Mr.

Fuller did not evince his remorse through the entering of a guilty plea and came before the Court with a prior entry on his criminal record. [ 49 ] Finally, Ms. Rhinelander drew to my attention the decision of R. v. Oerde , [2002] O.J. No. 4610 (Ct. Just.) . In that case, Chilcott, J. imposed 60 days of imprisonment, on each count, to be served concurrently, for one count of resisting a peace officer and one count of possession of a weapon for a purpose dangerous to the public peace. The charges arose from Mr. Oerde’s participation in a violent demonstration outside of the Turkish Embassy in Ottawa. Mr.

Oerde came before the Court as a first offender, though he was not “youthful”. Indeed, Chilcott J. pointed out at ¶ 26 of the decision that, “…the accused is not an over zealous or over enthusiastic student who has gotten carried away in the exhilaration of the moment, but rather a married man who, in my opinion, should had the good sense to withdraw or leave when the demonstration got ugly. He did not.” In this respect the facts in Oerde are distinguishable from those in the instant case. Furthermore, Mr.

Oerde was being sentenced for behaviour beyond property damage. [ 50 ] In neither of these two “non-G20” decisions was there any indication of post-offence reparation as is the case here. [ 51 ] Having regard to the mitigating factors in this case, particularly Mr. Henry’s post-offence efforts towards rehabilitation, together with his status as a youthful first offender, I have concluded that the nature of imprisonment sought by the Crown is excessive. [ 52 ] The circumstances of the offences and of the offender are such that they call for a sentence which promotes restorative justice goals.

As confirmed by the Supreme Court of Canada, a conditional sentence of imprisonment is, by its nature, well-suited to address the combined principles of denunciation, general deterrence and reparation. It restricts the offender’s liberty, supports ongoing rehabilitation and enables restorative justice. Since his arrest in this matter, Mr. Henry has demonstrated that he can respond to supervision in the community and is prepared, and able, to make amends for his actions. He is young, impressionable and has strong social justice values which can be re-directed towards a more productive outcome. As Mr.

Henry put it in Ex. 2, “I know what I did was

wrong and in the future I will find a creative positive way to exercise my opinions.” Having regard to the material before me, I accept that he is capable of reaching that goal. In the circumstances of this case, a conditional sentence of imprisonment would be consistent with the relevant principles of sentencing. Further, in my view, a conditional sentence of imprisonment, combined with a lengthy period of probation, would not cause a reasonable member of our community, well-informed as to the circumstances of the offences and of the offender, to lose confidence in our administration of justice.

Surely that must be the goal of each sentence imposed by the courts. [ 53 ] In my respectful view, a global sentence comprised of a twelve-month conditional sentence of imprisonment, followed by 24 months of probation, is the least restrictive sentence which would adequately address the relevant sentencing principles in this case. In reaching my decision as to the total length of sentence, I have been mindful of what may be referred to as the totality principle. I must ensure that the cumulative sentence imposed does not exceed Mr. Henry’s overall culpability.

Further, the overall sentence must not be so crushing such that it is not in keeping with Mr. Henry’s lack of criminal record and future prospects of rehabilitation.

It also must not be excessive such that the purposes of deterrence and denunciation lose their value. [ 54 ] The sentence will be broken down as follows: a four-month conditional sentence of imprisonment for each count of mischief to property of a value over $5,000, to be served consecutive to one another, together with a four-month conditional sentence of imprisonment, to be served consecutive to the sentences for the first two counts, for the count of wear disguise with the intention of committing an indictable offence.

The conditional sentence of imprisonment will be followed by 24 months of probation in relation to each count, to be served concurrently on each count. [ 55 ] The terms of the 12-month conditional sentence will be as follows: In addition to the mandatory conditions imposed by § 742.3(1) of the Criminal Code , Mr. Henry will be subject to the following terms: 1. Reside at an address approved of by your conditional sentence supervisor; 2. Remain in your place of residence at all times, except: (

a) for the purposes of employment; (

b) for the purposes of education or training; (

c) for the purposes of attending treatment and/or counseling; (

d) for your own medical emergency or that of an immediate family member; (

e) each Saturday for two hours, for the purposes of attending to the necessities of life; (

f) for the purposes of complying with the terms of your conditional sentence of imprisonment; (

g) for any purpose, with the prior, written permission obtained from your conditional sentence supervisor; and (

h) for the purposes of travel directly to and from the destinations reflected in the above-noted exceptions; 3. Make reasonable efforts to attend school and/or seek and maintain employment; 4. Abstain from attending at 184 Yonge Street and 444 Yonge Street, Toronto; 5. Write a letter of apology to the store managers of Starbucks at 184 Yonge Street, Toronto and of Bell Mobility at 444 Yonge Street, Toronto; 6. Make restitution in favour of Starbucks Coffee Company in an amount that does not exceed $5,000. That restitution will be paid in accordance with a

schedule fixed by your conditional sentence supervisor, having regard to your income and expenses; 7. Take counseling and/or participate in a rehabilitative program, as recommended by your conditional sentence supervisor, particularly in the following areas:

(

a) Managing your depression; and (

b) Self-esteem. Sign the necessary authorizations that will allow your conditional sentence supervisor to monitor your progress in counselling. [ 56 ] Following the completion of your conditional sentence of imprisonment, Mr. Henry will be on probation for two years. The conditions of that probation order are as follows: In addition to the mandatory conditions imposed by § 732.1(2) of the Criminal Code , Mr. Henry will be subject to the following terms: 1.

Report within two business days following the conclusion of your conditional sentence of imprisonment to a probation officer and thereafter, when required by your probation officer and in the manner directed by your probation officer; 2. Reside at an address approved of by your probation officer; 3. Make reasonable efforts to seek and maintain employment and/or attend school or a training program; 4. Abstain from attending at 184 Yonge Street and 444 Yonge Street, Toronto; 5.

Take counseling and/or participate in a rehabilitative program, as recommended by your probation officer, particularly in the following areas: (

c) Managing your depression; and (

d) Self-esteem. Sign the necessary authorizations that will allow the probation officer to monitor your progress in counselling; 6. Within the first 18 months of this order, perform 240 hours of community service, commencing within two months of the date of this order and at a rate to be fixed by your probation officer; and 7. If restitution has not been fully paid during the conditional sentence of imprisonment, make restitution in favour of Starbucks Coffee Company in an amount that does not exceed $5,000. That restitution will be paid in accordance with a

schedule fixed by your probation officer, having regard to your income and expenses. This amount represents the total loss incurred by Starbucks and which forms the subject matter of the restitution order made pursuant to § 738 of the Criminal Code . [ 57 ] Mr. Henry has clearly indicated that he wishes to make full restitution in this matter. In the event that, for financial reasons, that cannot be completed during the currency of his sentence, I will make a stand alone restitution order, pursuant to § 738 of the Criminal Code .

It will be in the amount of $5,000 in favour of Starbucks Coffee Company. [ 58 ] What remains is my consideration of whether Mr. Henry ought to be ordered to pay a victim-fine surcharge in this matter. Having regard to the fact that, as a student, he is of limited means, and that it is the Court’s intention that any money he does earn go towards the payment of restitution, I have determined that the surcharge will be waived in this case. Released: September 28, 2011

Signed: “Justice A. Tuck-Jackson”