IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
R. v. Anderson et al, |
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2005 BCSC 1681 |
Date: 20051208
Docket: 76644
Registry: Kamloops
Between:
Regina
And
James Allen Anderson
Robert Aaron Archibald
Anthony Nathaniel Brown
Eric Shimout Gilbert
Before: The Honourable Madam Justice D. Smith
Reasons for Judgment
| Counsel for the Crown: |
I. Currie |
| Counsel
for the Accused
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S. Tate |
| Counsel for the Accused Gilbert: |
F. Kaatz
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Date and Place of Trial/Hearing: |
November 7, 2005 |
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Kamloops, B.C. |
[1] On September 30, 2005, a jury convicted each of the four accused of the offences with which they were charged in a single indictment. In particular, James Anderson was convicted of one count of committing mischief to property over $5,000 (s. 430(3)) and one count of taking part in a riot (s. 65). Robert Archibald, Anthony Brown and Eric Gilbert were each convicted of one count of committing mischief to property over $5,000 (s. 430(3)), one count of taking part in a riot (s. 65), and, one count of arson to property having disregard for human life (s. 433(a)). All four accused are before the court on this date for sentencing.
[2] The Criminal Code provides a maximum penalty of ten years imprisonment for mischief over $5,000, two years imprisonment for taking part in a riot, and life imprisonment for arson having disregard for human life.
[3] The 14-day trial of these four offenders was the first, and to date only trial, of 13 inmates charged with various offences as a result of a prison riot on January 3, 2005, at the Kamloops Regional Correctional Centre (“KRCC”). Since the incident, five inmates have pled guilty to a number of charges and have been sentenced. Others remain awaiting trial at this time.
[4] The trial provided a unique opportunity to view, frame by frame, the 37-minute videotape of the riot. That, in turn, permitted a careful review of each inmate’s involvement in the incident. No audio accompanied the videotape.
Circumstances of the offences
[5] The incident that gave rise to the charges occurred on the holiday Monday following New Years. On that date KRCC was short staffed because of the holiday.
[6] The living unit where the riot occurred housed 23 inmates, including the four offenders. When the riot started, the three security guards in the unit, fearful for their personal safety, locked themselves inside the staff office situated within the unit. During the ensuing rampage, inmates started a fire in front of the staff office. They fuelled the fire with pieces of property they had ripped apart and from loose items of property taken from their cells. About six inches of water from the overhead sprinklers rained down into the unit. Black smoke billowing from the fire covered the area. Eventually the smoke obscured all vision from the surveillance cameras.
[7] In total, the riot caused approximately $80,000 in damage. That estimate does not include the cost of overtime for cleaning and repairing the unit. Nor does it include the emotional cost in the loss of morale to the staff who had developed a relatively high degree of trust with the inmates as a result of working closely with them in the open-setting environment.
[8] The incident continued for at least an hour before the emergency response team (the “ERT”) charged the living unit and brought it under control. During that time the prisoners hurled a rain of objects about the room. Through the office Plexiglas window the guards observed several inmates kicking and throwing objects at the office window and door in an attempt to breach its entrance and gain access to them. Four-by-fours, chairs, pieces of the tables that had been ripped apart, and other loose debris were thrown at the office. Inmates threw themselves kicking at the window. The staffing station just outside the office was destroyed. The staff desk was pulled over and torn apart, along with the computer monitor and the tower for the computer. The latter item was used as a battering ram against the office door.
[9] Inside, the guards could feel the vibrations from the objects as they hit the window. Not only did the guards fear for their own lives, but they feared that the inmates might kill one another in the frenzy.
[10] Elsewhere in the unit the inmates smashed and ripped apart the microwave, the refrigerator, the phones, one of the surveillance cameras, and all of the tables and chairs. During the chaos, inmates issued death threats and threats to smoke out the guards locked inside the office. Fearful for their lives, the guards retreated further into a small windowless bathroom adjoining the office. They took with them a fire extinguisher and barricaded themselves inside the tiny bathroom by propping a chair against the door. While inside the bathroom they could not see what was happening in the unit but could hear the crackling of the fire and could smell the smoke. By then, the fire had grown to a significant size.
[11] Acting out of self-preservation, the guards soaked paper towels with water which they stuffed under the office door and inside the grate in order to keep the smoke from escaping into the bathroom. They described the noise of the riot from inside the bathroom as deafening. They remained trapped inside until the ERT regained control of the unit. During that time, the guards believed the office window had been breached. In fact, unbeknownst to them, the window had withstood the assaults upon it. Although the guards remained in radio communication with the control staff and supervisor, for the period of time that it took the ERT to arrive, they were terrified and correspondingly terrorized by a number of inmates.
[12] Each of the guards spoke of the extreme fear he experienced from the inmates’ threats and attacks on the office. Following the incident, one of the guards was tragically killed in an unrelated accident. However, before his death he provided a written account of the incident, and the consequences he continued to suffer from it, to the investigating police officers. The two other guards testified at the trial. They too continue to suffer varying degrees of post-traumatic stress as a result of their experience. All three had no doubt that if the inmates had gained access to them they would have been killed. Indeed, one of the leaders in the riot, who has since pled guilty and been sentenced, told the investigating police officers that he would have killed the guards had he succeeded in reaching them.
[13] It was apparent from the 37-minute videotape that a degree of planning had gone into the incident before the riot started. One of the offenders who testified at trial confirmed that before January 3, 2005, there had been talk of “smashing things up”. That morning there had been an envelope of human feces left on the security guards’ desk. Also that morning an inmates’ meeting was held in the TV room situated within the unit. Another offender who testified at trial confirmed that during the meeting there was discussion about smashing things up. Both offenders who testified stated that none of the four offenders in this trial participated in any of the discussions about the planning of the riot.
[14] After the meeting the inmates exited the TV room. They returned to their cells where they retrieved sheets, blankets, and towels which they took back to the TV room. When they next left the TV room some inmates were masked. A microwave and kettle were taken out of a cupboard and positioned on the counter.
[15] The riot erupted ostensibly over dissatisfaction about the food. Food issues had been a daily problem. On that day there were complaints over the size and number of the pancakes served at an 11:00 a.m. brunch, some 17 hours after their previous supper meal. One of the guards tried to address the complaints by ordering more pancakes. They were provided in a timely manner. For his efforts he was yelled at and told that the food cart would be held hostage until the inmates’ demands were met. As the situation became more intense the guards arranged for a senior director of the institution (who was then off-site) to attend and speak with the inmates about their complaints. Before his arrival, however, the riot was triggered by an inmate throwing the kettle at a wall closest to where the guard who was trying to resolve the complaints was standing. This act marked the leadership’s decision to destroy the unit.
[16] The Crown does not allege that any of the four offenders took a leadership role in the incident. Indeed, in his opening address to the jury, Crown counsel stated that he was not alleging that the four accused played a major role in the incident. Crown also acknowledges that none of the four offenders were, what was described during the trial as, one of the “heavies”.
[17] Mr. Anderson and Mr. Archibald testified that they participated in the incident out of duress and fear for their personal safety. They stated that they believed that if they did not comply with directions given by the “heavies” they would be physically harmed or killed. They talked about the “con code”, which included threats of physical harm to those inmates who did not follow the directions of the “heavies” or leaders in the unit, and to inmates who “ratted” on those who did participate. In support of their defence of duress they called Professor Michael Jackson of the University of British Columbia Faculty of Law. He gave opinion evidence on the subject of prison subculture, the power structure within an inmate population and the potential consequences to an inmate who breaks the prisoners’ code of conduct.
[18] The jury did not accept the defence evidence called by Mr. Anderson and Mr. Archibald, as evidenced by the guilty verdicts. Since the incident Mr. Anderson and Mr. Archibald report that they have suffered significant repercussions for having testified at trial. Mr. Brown and Mr. Gilbert have also indicated through their counsel that they did not testify at trial out of fear over potential repercussions they would suffer if they breached the “con code”.
[19] However, where the defence of duress fails to raise a reasonable doubt in regard to an offender’s actions, a claim of duress may not be considered as a mitigating factor when determining an appropriate sentence. The difficulties of prison culture, as challenging as they may be at times, are insufficient to negate an offender’s individual responsibility for his actions.
The Offenders
[20] The Crown characterized each accused’s participation along a continuum of moral culpability, with Mr. Archibald’s actions as being the most culpable, Mr. Gilbert’s the least, and Mr. Anderson’s and Mr. Brown’s as somewhere between the two.
1. Mr. Anderson
[21] Mr. Anderson, age 40, is married with five children, one who is an adult and four who remain at home and are between the ages of 12 and 18. He was in the unit about three-to-four weeks before the incident and had a statutory release date of February 9, 2005. He was well known at KRCC, where he had been a regular inmate over the previous nine years. Mr. Anderson has a lengthy criminal record, dating from 1983 with 39 convictions, largely for property-related offences.
[22] Mr. Anderson denied any involvement in the planning of the riot. He testified that he only became involved in order to avoid retribution based on the “con code”. The videotape of the incident, however, showed him motioning inmates to attend the meeting in the TV room before the riot, closing the doors to the first-tier cells after exiting the TV room the first time, and wearing a mask when exiting the TV room the second time. He said that he was directed to do these things by those who had planned the riot and denied he closed the cell doors in order to prevent inmates from returning to their cells in the event of a lock down. There never was a lock down during the riot and so inmates were free to come and go from their cells. Indeed, a few chose to remain in their cells and not to participate in the riot.
[23] Moreover, when Mr. Anderson exited the TV room the second time, wearing a towel over his head which masked his face, the towel had cut-out eyeholes and a mouth opening, indicating a degree of preparation for the event. Again, Mr. Anderson denied that he had cut out the openings and said that another inmate had put the towel over his head. Several other inmates were also masked. Mr. Anderson said that they were told to “mask up” as it was believed the guards would be coming in with pepper spray. However, none of the guards inside the unit were armed and immediately before the riot had tried to address the inmates’ complaints.
[24] When matters escalated, Mr. Anderson removed the towel from his head. He said that he did not want to appear to be disguised. He said that he and others were directed to get involved and wreck the place or they would be stomped on or beaten up by the “heavies”. When the riot started Mr. Anderson pushed over the fridge, assisted in pulling apart two tables, took his mattress out of his cell and carried it to the back of the stairwell where he placed it against a door accessing the unit. He was seen in the videotape to be cheering, high-fiving, punching fists, and otherwise encouraging the inmates to participate. Later in the videotape he appeared to be directing certain inmates in the riot although at trial he denied that he did so and said that it was he who was directed by the “heavies”. In total, he actively participated in the riot for only the first eight minutes of the 37-minute videotape. Thereafter, he merely wandered around and appeared to encourage others. Nor was he involved in any attack on the staff office or in fuelling the fire.
[25] Mr. Anderson has suffered repercussions for his involvement in the incident and for having testified at the trial. Upon his arrest, he was taken to the RCMP detachment in wet clothes, which he said he remained in for three days. He states that while at the detachment he was refused a blanket, was taunted by the guards who repeatedly called him “scum”, and was refused medical treatment after having experienced breathing difficulties from smoke inhalation. For two-and-a-half months following the incident he was kept in the “hole” (protective custody) on 23-hour lock up. Thereafter, he was transferred to Prince George for five months, away from his family, where he was placed in the “hole” on 23-hour lock up for one-and-a-half months. At the time of this sentence he will have been in pre-sentence custody on these offences for ten months.
[26] In his statement to the investigating police officers he expressed concern about the safety of the guards as well as considerable remorse about what had occurred. He repeatedly stated that he was not a violent man. Both at trial and during the sentencing hearing he was tearful and appeared emotionally drained by the fallout from the incident.
2. Mr. Archibald
[27] Mr. Archibald is 21 years old and single. This was his first time at a provincial institution. He was placed in the unit only ten days before the incident. Mr. Archibald was described by one of the guards as a quiet and pleasant inmate who enjoyed joking around with his peers. He was also said to have posed no problem for the staff and maintained a clean unit. His criminal record includes two convictions for drug trafficking, three convictions for failing to appear, and two convictions for breach of probation. At the time of these offences he was serving a four-month custodial sentence that was imposed on December 23, 2004. Prior to these offences, his statutory release date was April 20, 2005.
[28] Mr. Archibald was new to prison culture and did not interact much with the inmates. He denied associating with any of the “heavies” before the incident and said he kept to himself. He said that neither he nor any of his co-accused spoke at the inmates’ meeting but when he left the meeting he knew that something was going to happen because the inmates at the meeting were very angry. He stated that during the meeting there was some discussion about smashing things up. In the days before he said that there had also been talk about doing something. When he left the TV room for the second time he put a toque on his head, he said, in order to protect himself because he believed the inmates would be pepper sprayed by the guards. He did not wear a mask but eventually wetted down the toque after the fire was started.
[29] After leaving the TV room, Mr. Archibald sat down at a table. However, within seconds of the riot starting he became actively involved. He pulled out the paper towel dispenser. He assisted in pulling tables out of the floor and ripping them apart. He repeatedly kicked at and threw objects, including a piece of plywood, a chair, a stick, and other debris at the staff office where the guards were locked inside. He assisted in pulling apart the staff desk outside the office, as well as the phone. He boosted up an inmate in order to assist him in dismantling one of the cameras. He took the mattress from his cell and placed it as a barricade against a door to the living unit. He took a sheet from his cell, lit it on fire, and placed it at the foot of the office door, albeit in water which extinguished the fire. Throughout his involvement he could be seen cheering, shoulder-shoving, and encouraging other inmates in the rampage.
[30] Mr. Archibald remains anxious over retribution from both staff and inmates for having testified at trial. He states that he continues to be taunted by the inmates for that decision. After the incident, he was placed in the “hole” on 23-hour lockup for two weeks.
[31] The corrections staff report that he is a model inmate who has taken this time to upgrade his education, to complete a work experience course for which he achieved a 91% grade, and to reconnect with his faith. He has also contacted several support agencies that would be available for him when he is released from custody. He is supported in his endeavours by his mother. Through his counsel, Mr. Archibald states that his actions in these offences were out of character and precipitated by his fear of repercussions if he did not participate. He made these comments and expressed concern over the safety of the guards to the investigating police officers.
3. Mr. Brown
[32] Mr. Brown just turned 21 years old and is single. He was in and out of the living unit for about three months before the incident. He shared a cell with Mr. Archibald. He was described by one of the guards as “personable” and not posing any problems in the unit. His criminal record began in 2002 with a youth court conviction for possession of stolen property and possession of break-in instruments. His adult record includes a 2003 conviction for mischief under $5,000, and 2004 convictions for break and enter, breach of probation, two counts of theft, and one count of assault. He was sentenced on this last conviction on October 28, 2004, for a custodial period of six months to be followed by a one year period of probation. His statutory release date, before these offences, was February 26, 2005.
[33] The videotape showed that Mr. Brown covered his face at the outset of the riot but remained uninvolved for about the first six minutes. He then obscured one of the surveillance cameras with a wet paper towel and thereafter became more actively involved in the riot by assisting in ripping apart tables, pulling apart the staff desk, ramming pieces of the staff desk at the office door and window, throwing a cube table at the office window, repeatedly kicking at the staff door, covering a window to the common room, carrying his mattress to a door at the back of the stairwell, as well as lighting a sheet on fire and placing it near the staff desk. While participating in the riot, Mr. Brown was seen to be cheering and encouraging others.
[34] Mr. Brown is supported by his family. His stepmother was present in court during the sentencing hearing. His mother and stepfather believe he has a learning disability and because of that handicap is easily influenced by his peers. In their view this disability has always affected his judgement. They suggest that Mr. Brown’s delayed involvement in the riot is reflective of his having been easily drawn into the mayhem by the sheer force of the noise and activity about him. However, no evidence was presented on this issue. In his statement to the investigating police officers Mr. Brown said that he was intimidated by the court proceedings. He did not testify at trial.
[35] Immediately after the incident Mr. Brown was placed in the “hole” on 23-hour lockup for two weeks. He has remained in continuous custody since October 28, 2004, when he was last sentenced before these offences.
4. Mr. Gilbert
[36] Mr. Gilbert, age 37, is an Inuit native from Churchill, Manitoba. He was adopted when he was three years old. He acknowledges that he had a good childhood, which included a number of native friends, but regrettably became involved in alcohol and drugs, and in particular cocaine, at an early age. His substance abuse problem has fuelled most of his criminal activity. He was placed in the living unit on December 22, 2004.
[37] Mr. Gilbert’s criminal record dates from 1987. It includes four property-related offences, two impaired driving offences, one count of extortion, and a number of convictions for failing to appear, failing to attend court, and breaches of probation. On June 16, 2004, he was sentenced to six months imprisonment and 18 months probation for an assault. Since December 10, 2004, he has also been in custody on two outstanding robbery charges, which are scheduled for disposition on December 21, 2005. He was placed in the unit on December 22, 2004, when he was sentenced to seven days for breach of probation, presumably related to his arrest on charges of robbery. He states through his counsel that he was high on drugs at the time of those offences. Following this incident he was placed in lockup for 21 days.
[38] Mr. Gilbert was perhaps the smallest inmate in the unit at 5’6” and 130 pounds. He kept mostly to himself, and was quiet and accommodating. He was described as polite, respectful of authority, and compliant. For the most part he was “invisible” in the unit. During much of the riot he remained detached from the chaos taking place around him by sitting at a table or by standing beside his cell door. Indeed, he only became involved in the last few minutes of the riot as captured by the videotape and that involvement appeared to be as a result of being directed by one of the “heavies” to do so. His subsequent actions went virtually unnoticed by both the guards inside the office and the inmates. He removed the mattress from his cell and carried it to the door at the back of the stairwell. He assisted others in tipping over the staff desk and pulling its top off. He lit a piece of paper on fire and threw it, along with some other minor objects, into the fire. The Crown submits that Mr. Gilbert’s actions, in the circumstances of this case, were the least morally blameworthy of the four offenders.
[39] During the police investigation, Mr. Gilbert declined to identify the participants in the riot. His counsel advises that he did so as an act of self-preservation. He continues to be in custody, may have a further custodial sentence to serve on the outstanding robbery charges, and fears repercussions from other inmates if he breaches the “con code” that punishes those who “rat” on a fellow inmate. His counsel states that his fear of physical harm is grounded by the admission of another inmate, who acknowledged to the investigating officers that he would have killed the guards had he gained access to them, and by the comments of the guards themselves, who feared that certain inmates might kill others during the peak of the riot.
Position of Crown
[40] The Crown seeks federal sentences in the range of two to four years, with Mr. Archibald at the highest end of the range, Mr. Gilbert at the lowest end, and Mr. Anderson and Mr. Brown somewhere in between. Counsel submits that this range accords with the sentences already imposed on the other inmates who have pled guilty on charges arising from their involvement in the incident.
[41] Crown counsel relies on the sentences in R. v. Stephens (11 February 2005) Kamloops 76569-1 (B.C.P.C.) (five years imprisonment reduced to four years for a guilty plea); R. v. Shanks (22 March 2005) Kamloops 76569-2 (B.C.S.C.)(four years imprisonment following a guilty plea); and R. v. Paulin (18 May 2005) Kamloops 76640-2 (B.C.S.C.)(three-and-a-half years imprisonment following a guilty plea) as a benchmark for the appropriate range of sentences for these four offenders. Mr. Stephens and Mr. Shanks were described as the instigators of the incident. They, along with Mr. Paulin, were considered to be the leaders in the unit and had played a major role in the planning and organization of the riot. While Mr. Paulin’s involvement was not as extensive as the two other inmates, he had a very significant criminal record that included a number of offences for violence and two prior convictions for arson. Each of these three offenders had also been convicted of the very serious offence of unlawful confinement of the guards.
[42] Provincial sentences were imposed in R. v. Flavel (30 June 2005) Kamloops 76644-1 (B.C.S.C.) and R. v. Yonkman (5 November 2005) Kamloops 76569-3 (B.C.S.C.). Both of these offenders pled guilty to the charge of taking part in a riot. In Flavel, the court imposed an effective sentence of two years less a day following a guilty plea. He received double credit for his pre-sentence custody resulting in an actual sentence of 19 months. Mr. Flavel, age 20, was the second aboriginal inmate in the unit (the other being Mr. Gilbert). He was found to have had less involvement in the incident than the other three inmates. He also did not face a charge of unlawful confinement. However, according to the sentencing judge, Mr. Flavel had a significant record that reflected a tendency to become involved in more serious offences over time.
[43] In Yonkman, the court concluded that Mr. Yonkman was not an instigator, but participated in the early stages of the riot by throwing objects at the office door, by attempting to disable one of the surveillance cameras, and by attempting to conceal his identity from the cameras by donning a toque and changing his shirt from the one he had been wearing when the riot broke out. Mr. Yonkman was sentenced to an effective sentence of 18 months, but given double credit for his pre-sentence custody of 22 months which arose out of unique circumstances. He received an actual sentence of time served.
[44] Given these benchmark decisions, Crown seeks a sentence of three-and-a-half years for Mr. Archibald. Counsel relies on Paulin as the appropriate comparator based on a similar degree of involvement in the incident. He seeks a sentence of two years for Mr. Gilbert based on Flavel as a comparator, whose conduct, he submits, was similar to that of Mr. Gilbert’s. Lastly, the Crown seeks a federal sentence for Mr. Anderson and Mr. Brown of between two and three-and-a-half years. These suggested sentences, however, do not take into account the extent of the offenders’ criminal record, pre-sentence custodial time served or any rehabilitation efforts achieved since the incident.
Position of defence
[45] Counsel for Messrs. Anderson, Archibald and Brown submits that the appropriate range of sentence for these offenders falls within provincial time. He further submits that given the length of pre-sentence custodial time each has served beyond their statutory release date, the hard time they have served in the “hole”, and the repercussions Mr. Anderson and Mr. Archibald have suffered as a result of having testified at trial, that their sentences should be limited to the time they have served to date. He also points to the support each has from their families which will assist them in making the transition from the custodial setting to the community.
[46] Defence counsel relies on R. v. McLaren, [1985] B.C.J. No. 1920 (C.A.) (Q.L) in support of his submission that the time spent by the offenders in the “hole” should be considered a mitigating factor. In McLaren, the offender received a sentence of two years and six months imprisonment on a conviction for arson during a riot at the Matsqui Institution. In upholding the sentence, Craig J.A. at ¶8 referred to the comments of the sentencing judge, who found that the disciplinary action against the offender who had been placed in dissociative (protective) custody for five months, was a mitigating factor in calculating the sentence.
[47] Counsel for Mr. Gilbert submits that an appropriate sentence for his involvement in the incident would be six months. He reiterates that Mr. Gilbert’s time in the “hole” should be considered as a mitigating factor in sentencing. He further submits that even though Mr. Gilbert did not testify at trial, it was apparent from the videotape that Mr. Gilbert only became involved in the incident after he was directed to do so by one of the “heavies”. He states that Mr. Gilbert acted out of fear for his personal safety if he did not do as he was directed, given that he will undoubtedly have further custodial time to serve if he is convicted on the outstanding robbery charges.
Discussion
[48] The Criminal Code provides that similar sentences be imposed for similar offenders convicted of similar offences. It is also common ground from the authorities provided by both the Crown and defence that general deterrence is the paramount principle of sentence in cases involving offences of this nature. That principle was underscored in the sentences imposed in Stephens, Shanks, Paulin Flavel and Yonkman.
[49] The range of sentence for those who assume leadership or major roles in such offences would seem to be between three and five years. In addition to the federal sentences imposed in the above cases, the court in R. v. Mickey (2002), 256 N.B.R. (2d) 198, imposed a sentence of three years and six months for an offender who was convicted of taking part in a riot and committing mischief to property over $5,000, which included lighting fires. A distinguishing feature in the federal sentences imposed for this incident was the conviction of those three offenders for unlawful confinement of the three guards. The seriousness of that offence is reflected in the maximum penalty of life as provided for in s. 270(2) of the Criminal Code.
[50] For those who participate to a lesser degree in these types of offences, the authorities indicate that the principle of general deterrence may also be satisfied by a sentence that falls within provincial time. See R. v. Carpenter [1984], B.C.J. 1625 (C.A.) (Q.L.) (15 months imprisonment for taking part in a riot and committing mischief over $5,000); R. v. Felix [1992], N.W.T.J. No. 40 (S.C.)(Q.L.) (12 months imprisonment for committing mischief over $5,000 during a prison riot); R. v. Pace, [1996] N.B.R. (2d)(Supp.) No. 86 (Q.B.T.D.) aff’d (1997), 194 N.B.R. (2d) 41 (C.A.) (18 months imprisonment for taking part in a riot and committing mischief over $5,000 – he was the main instigator and significantly involved); R. v. MacWilliams, (1998) 204 N.B.R. (2d) 249 (Q.B.T.D.) (12 months imprisonment following a guilty plea to rioting in a prison); and, R. v. Loewen [1992], B.C.W.L.D. 1753 (C.A.) (six months imprisonment and one year probation for taking part in a riot).
[51] With respect to this incident, in Flavel and Yonkman, each of the offenders received a provincial sentence for taking part in a riot. Mr. Flavel was found to be a bystander for much of the incident, not participating actively, but choosing part way through the riot to become actively involved. The determining factor for his effective sentence of two years less a day appeared to be his significant criminal record, which indicated to the sentencing judge a tendency toward more serious offences over time, in large part driven by a substance abuse problem. The determining factors for Mr. Yonkman’s effective sentence of 18 months appeared to be his lengthy criminal record that went back a number of years and his attempt to mask his identity and conceal his involvement.
[52] In this case, while the offenders’ participation was significantly less than the offenders in Stephens, Shank and Paulin, a number of aggravating circumstances were present. The security guards who worked side by side with the inmates in an open custodial setting, who had no control over the administration of the prison, who attempted to address the inmates’ complaints, and who were unarmed, were repeatedly subjected to attacks by Mr. Archibald and Mr. Brown on the staff office wherein the guards had locked themselves out of fear that they would be physically harmed. The intensity of those inmates’ actions could only have been driven by a desire to terrorize the guards. In my view, a high degree of moral culpability attaches to their actions. Mr. Archibald and Mr. Brown, along with Mr. Gilbert, also participated in fuelling the significant fire. Those actions showed a cavalier disregard for the risk to the guards’ lives as well as the lives of their fellow inmates. However, Mr. Gilbert’s participation in the arson was less than that of Mr. Archibald’s and Mr. Brown’s, and appeared to be reluctantly undertaken after he had attempted to remain detached from the incident. Mr. Anderson’s actions by his acts of wearing a mask with cut-out eye holes and mouth opening, and of closing the cell doors before the riot started, while less culpable than that of Mr. Archibald’s and Mr. Brown’s, suggested some involvement in the planning of the event and also an intent to intimidate the guards.
[53] Although the principle of general deterrence is the paramount consideration, the court must also consider the other principles of sentence including the principles of rehabilitation, the special circumstances of Mr. Gilbert’s aboriginal heritage, and the overriding principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. An appropriate sentence for each offender must reflect not only the extent of his moral culpability in the incident but also take into account his personal circumstances including his age, criminal record, evidence of rehabilitation, and any other special features of his life. In short, each sentence must be tailored to reflect the unique circumstances of both the offence and the offender.
[54] There are some mitigating circumstances in regard to each offender. Pre-sentence custody must be considered, for which double credit has been given to certain offenders already sentenced. Mr. Anderson has spent ten months in pre-sentence custody that has been “hard” time, including about four months in the “hole”, five months away from his family and repercussions from fellow inmates for having testified. Mr. Archibald and Mr. Brown are both very young. They too have served some “hard” time since the incident. Mr. Archibald has made considerable efforts at rehabilitation. Mr. Brown has the added support of his family. Both of these offenders are more vulnerable to the pressures of prison culture because of their age and their limited experience with that culture. Mr. Gilbert is an Inuit aboriginal whose criminal activity has been largely driven by a substance abuse problem. Like the others, he has served some “hard” time since the incident and if convicted on his outstanding charges, is likely to face a further custodial sentence. Nevertheless, while important considerations, these mitigating factors cannot diminish the weight to be given to the principle of general deterrence because of the very serious consequences such offences have on the orderly administration of the prison by staff who are vulnerable to attacks from inmates in such a setting.
[55] In all of the circumstances, having considered the principles of sentence, as well as the aggravating and mitigating factors of each offender, I have concluded that the following sentences are appropriate.
[56] Mr. Anderson, you are an experienced inmate who is knowledgeable about the operation of the prison. As such, you are able to provide some leadership for those inmates who are new to the system. You participated in the riot, albeit to a limited degree at its outset, and did not become involved in fuelling the fire. Your actions, however, in masking yourself and closing the cell doors, at least to the other inmates, displayed an active support for the planned event and in that regard provided encouragement for others to become involved. Objectively viewed, their purpose could only have been to intimidate the guards. You have served ten months in pre-sentence custody, much of that “hard” time, for which you shall receive double credit, or 20 months. In my view an appropriate sentence is 27 months on count one (mischief over $5,000) and 20 months on count two (taking part in a riot) to be served concurrently, for an effective sentence of 27 months. After granting you double credit for your pre-sentence custody, you are hereby sentenced to a further seven months on these offences.
[57] Mr. Archibald, while this was your first time in a provincial institution, you made a choice to become actively involved in the riot. You were involved in the attack on the security guards’ office, which acts contributed to the terrorizing of the guards. You also participated in fuelling the fire, which showed a disregard for the risk that such an act had, not only for the guards, but also for your fellow inmates. I have also taken into consideration your young age, your significant rehabilitation efforts since the incident, and your pre-sentence custody of seven-and-a-half months, which included two weeks in protective custody. In my view, an appropriate sentence for your involvement is 33 months on count one (mischief over $5,000), 24 months on count two (taking part in a riot) and 33 months on count three (arson having disregard for human life), to be served concurrently, for an effective sentence of 33 months. After granting you double credit for the seven-and-a-half months you have spent in pre-sentence custody, you are hereby sentenced to a further 18 months.
[58] Mr. Brown, you were similarly engaged in an active way through repeated attacks against the staff office and in fuelling the fire. I have also considered your young age, as well as your pre-sentence custody of about nine-and-a-half months. I have concluded that an appropriate sentence for your involvement is 30 months on count one (mischief over $5,000), 24 months on count two (taking part in a riot) and 30 months on count three (arson having disregard for human life), to be served concurrently, for an effective sentence of 30 months. After granting you double credit for the nine-and-a-half months you have spent in pre-sentence custody, you are hereby sentenced to a further 11 months.
[59] Mr. Gilbert, you remained uninvolved for the better part of the riot but eventually succumbed to pressure and participated in the property damage and in fuelling the fire. However, you did not participate in the attacks on the guards’ office and your participation in fuelling the fire was relatively minor. In these circumstances, I am satisfied that your moral culpability is less than that of Mr. Archibald’s and Mr. Brown’s who were charged with the same offences. I have also considered your aboriginal background and the requirement of s. 718.2(e) of the Criminal Code. I have concluded that an appropriate sentence on count one (mischief over $5,000) is 12 months, on count two (taking part in a riot) is 6 months, and on count three (arson having disregard for human life) is 12 months, to be served concurrently. You have no pre-sentence custody on these offences as you were detained pending your trial on the outstanding robbery charges. Therefore your actual sentence is 12 months.
[60] Each of these sentences shall be consecutive to any sentences the offenders may be currently serving.
[61] The victim fine surcharge shall be waived.
[62] There will be an order against Mr. Archibald, Mr. Brown, and Mr. Gilbert on count three, requiring each to provide DNA samples pursuant to s. 485.051(b) of the Criminal Code.
[63] There will be a further order against Mr. Archibald, Mr. Brown, and Mr. Gilbert on count three, prohibiting them from possession any firearms or weapons for a period of ten years.
“D. Smith, J.”
The Honourable Madam Justice D. Smith