R. v. Morano, 2014 ONCJ 79

Court Information

Court File No.: Toronto

Date: February 3, 2014

Ontario Court of Justice – Old City Hall, Toronto Region

Parties

Between:

Her Majesty the Queen

— And —

Richard Morano

Judicial Officer and Counsel

Before: Justice Zuker, M.A.

Reasons on Sentencing: February 3, 2014

Submissions: January 14, 2014

Counsel:

• Elizabeth Nadeau, for the Crown
• Scott Bergman, for the accused Richard Morano

ZUKER, J.:

INTRODUCTION

1On June 26, 2010, during the G-20 Summit in Toronto, crowds gathered to engage in a peaceful protest in the downtown core. Among the peaceful protestors, members of the "Black Bloc". The Black Bloc used the peaceful protest as a shield in which to travel to their targets and to shield themselves from police. The potential violence and danger to innocent protestors was high. These individuals engaged in pre-meditated wilful destruction of public and private property, ranging from breaking business windows to vandalizing police vehicles and lighting them on fire. The crowd numbered in the thousands, and the actions of the Black Bloc appear to have incited others to riot. In all there were 118 occurrences of criminal activity, including arson, assault, break and enter, mischief to property, and robbery. The cost of the property damage was estimated at $2,000,000.

2Demonstrations moved from Queen's Park to the Toronto Eaton Centre along University Avenue and Queen Street West.

3A larger protest was scheduled for June 25 in Toronto, the day the 36th G8 summit began in Huntsville, Ontario. Protesters attempted to enter the security zone, but were later forced to return by police officers. By evening, protesters set up a tent city at Allan Gardens and stayed overnight to resume protests the following day, the opening of the G-20 summit.

4As the G-20 leaders arrived in Toronto after the 36th G8 summit in Huntsville, Ontario wrapped up, a large group comprising as many as 10,000 people protested downtown during the afternoon of June 26.

5According to accounts, about 200 marchers broke away from the protest route on Queen Street headed south on Bay Street towards the convention centre, through Financial District. The media would describe the break-off as led by the black bloc, with demonstrators covering their bodies and faces in black clothes. Individuals using the same black bloc tactics have been suspected of being responsible for confrontations in other international summit protests. Protesters dispersed to damage buildings and vehicles. The intent as interpreted by some media was to distract police forces from the security zone so that other protesters could break in, but police maintained their blockades, protecting the fence. Vandals smashed the windows of various office buildings and stores along Yonge Street, Queen Street West and College Street using hammers, flag poles, umbrellas, chunks of pavement and mailboxes.

6After a few hours, many black bloc demonstrators changed into civilian clothes and dissolved into the larger crowd as security forces began to increase in presence.

7The first property reportedly damaged was a Nike clothes store. Toronto Police Headquarters was damaged. Media vehicles of the Canadian Broadcasting Corporation and CTV Television Network were damaged and Toronto Police Service cruisers were smashed and set ablaze in various locations. American corporations, such as Starbucks, appeared to be the targets of vandalism. Other targets were Foot Locker, Sears Canada, McDonald's Canada, Tim Horton's, Urban Outfitters, Pizza Pizza, Subway, Swiss Chalet, and the Zanzibar Tavern. An American Apparel store was damaged; the mannequins on display were taken out and used to further damage nearby stores. Branches of Scotiabank, Canadian Imperial Bank of Commerce (CIBC), and the Toronto-Dominion Bank (TD) were also damaged. Toronto Police Headquarters, Toronto Eaton Centre, Sheraton Centre, Delta Chelsea and some buildings in Yonge-Dundas Square were put in lockdown mode, and three people were confirmed by the Toronto EMS to be injured during the protests. Hospitals along University Avenue, which includes Mount Sinai, Toronto General, Princess Margaret and The Hospital for Sick Children, were put into lockdown mode by police. Toronto Transit Commission (TTC) bus and streetcar routes were halted in Downtown, as well as subway service between Bloor-Yonge and St. George stations.

8Tear gas was used for the first time in the history of Toronto, being deployed in a few locations by muzzle blasts. Rubber bullets and pepper spray were also used against many protesters.

AGREED STATEMENT OF FACTS (Exhibit One)

9In June of 2010 the City of Toronto hosted world leaders at the G-20 summit. Tens of thousands of people came to the downtown core to demonstrate for a variety of causes. On June 26, the peaceful protests were drowned out by rioting and property damage in the downtown core of Toronto. Those responsible for the bulk of the damage were disguised in mostly black clothing and were referred to as "Black Bloc" members or as using "Black Bloc" tactics. The G-20 Investigative Team was created to investigate the criminality perpetrated largely on June 26th, 2010. The team reviewed over 60,000 images and videos of the day's events in an effort to identify those responsible.

10Mr. Morano was one of those individuals identified as causing property damage on June 26th, 2010. Investigators learned Mr. Morano resided in Pennsylvania and he was extradited earlier this year and released on bail.

11Protests were organized throughout the week; the largest was scheduled for June 26th. The protest moved slowly making its way south from Queen's Park towards Queen Street. At approximately 3 p.m., as the end of the march arrived at Spadina Avenue and Queen Street, a number of protesters, including Mr. Morano, engaged in "black block" tactics when they donned black disguises preparing for planned actions which began when a red flare was ignited in the area.

Count 2 – Mischief over (Scout #766)

12Staff Sergeant Graham Queen of the Toronto Police Service was driving a marked police vehicle following a group of G-20 protesters to assist with traffic safety. Without warning, the "black bloc" group swarmed the vehicle. There were two police cruisers on the street but Car 766, which contained S.S. Queen, was the only one attacked by this group. Some of the group who had already passed the vehicle turned around and returned to it to join in the attack (Mr. Morano was not one of the individuals that turned around). The officer was wearing a bright yellow jacket at the time. The officer was forced to stop his vehicle and discontinue his duties because of the violence perpetrated on him and his vehicle. He was trapped in his vehicle. Shards of glass were sprayed at the officer as a result of the glass smashing and he was struck in the back of the head with a blunt object causing injury not requiring further medical treatment. The officer narrowly avoided serious injury. The group ran on and a team of officers extracted S.S. Queen as soon as it was safe to do so. Both police cars were eventually damaged beyond repair and set on fire.

13Mr. Morano ran with this group and threw a rock as he passed the car, cracking the windshield of the police vehicle. While it is clear that some members of the group would have known that S.S. Queen was in the motor vehicle at the time of the attack, there is no evidence that Mr. Morano knew that there was an officer in the vehicle at the time he threw the rock. After he threw the rock toward the police vehicle, which had already been significantly damaged, Mr. Morano immediately ran down the street and did not return to the area.

14The group ran east on Queen St. damaging businesses and throwing objects at police along the way. They continued to Bay Street and turned south to King Street. Police vehicles were damaged and set on fire at this location and then the group headed east to Yonge Street where they turned north.

Count 6 – Mischief Endanger Life – American Apparel

15Mr. Morano had in his hand a large piece of lumber. He is seen in photographs using this wood to smash the window of the American Apparel Store located at 338 Yonge Street. The store was occupied by employees at the time who could have been injured by the smashing of the glass.

Count 7 – Mischief Over – All Leather Store

16Mr. Morano moved up the street with the crowd of masked individuals. He, along with others carried a large metal construction fence taken from a nearby construction site. He helped smash the large front window of the All Leather Store located at 399 Yonge Street. The store was occupied by employees at the time of the attack.

Count 10 – Mischief Over – Tim Horton's

17Mr. Morano moved up the street with the crowd to the Tim Horton's at 444 Yonge Street, College Park. At this location, in the company of others who smashed a large glass window, Mr. Morano reached in through the broken window and stole a tall chair. In doing so, he broke the window further.

Count 11 – Attempt Mischief Over (Starbucks)

18Mr. Morano attacked the Starbucks Coffee Shop located at 450 Yonge Street. He attempted to use the tall chair that he stole from the Tim Horton's to smash a large glass display window, however he was unsuccessful in doing so. Employees fled the store to seek refuge.

Count 13 – Mischief Over (CIBC)

19Mr. Morano moved, still with a large crowd of "Black Bloc" style protestors, west along College Street to the CIBC Bank located at 790 Bay Street. Here, he used an aluminum chair from the W. Burger Bar Restaurant, located across the street, to smash a floor to ceiling glass window of the Bank.

Count 14 – Wear Disguise

20Mr. Morano attended this large protest in full disguise. He wore black clothing including a black face covering to avoid being identified.

21The accused came into Canada June 21, 2010. He left June 28, 2010. The Crown submits that it was Mr. Morano's intent as a member of the "Black Bloc" to wear disguises as a means to create even more fear, more power, and more muscle to terrorize the people of Toronto by using what had been peaceful protests into chaos. There is no innocence of the motive of the "Black Bloc". The calculation was very simple, to promote public disorder and to promote public disorder by physical force.

22Promotion of hostility, promotion of hatred and contempt was part of their intent.

23Freedom in thought and speech and disagreement in ideas and beliefs, on every conceivable subject, are of the essence of our life. Lawlessness by hoodlums is unacceptable. Representative democracy, as we know it, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection.

24Chaos was the plan of the "Black Bloc".

25Mr. Bergman submits on behalf of Mr. Morano that Mr. Morano was a youthful 19 year old at the time of the G-20 riots. Once disclosure was made Mr. Morano was prepared to plead guilty. He is remorseful. He is apologetic. He consented to his extradition. He has no criminal record. He has strong family and community support. He has a job and hopes to eventually go to College. He spent some 14 days in custody prior to being released.

26Mr. Morano accepts responsibility for the damages he himself caused. He submits he was not a leader but a follower. He does not acknowledge using a red flare. He dealt with "only" one police vehicle. He did not attack anyone directly.

27Tab 1 of the "Materials on Sentencing" filed as Exhibit is an "apology letter from Richard Morano dated January 13, 2014".

Apology Letter from Richard Morano

January 13, 2014

Residents of Toronto

c/o Mayor Rob Ford

Toronto City Hall

100 Queen Street W.

Toronto, ON M5H 2N2

Dear Residents of Toronto:

My name is Richard Morano. I am an American citizen and one of the many people that came to Toronto to protest the G20 Summit in June 2010. I had travelled from Pennsylvania, USA, to take part in a protest of the G20 Summit. This was the first time I had visited Toronto.

I am writing to you, the residents of Toronto and the Greater Toronto Area to apologize and express my sincere regret and remorse for my disgraceful actions which, on June 26, 2010, caused significant damage to property, the reputation and sense of safety throughout the City of Toronto and its residents.

While not my original intention beforehand, I am ashamed to admit that during the protest I wore black clothing and while disguised, I was part of a group of people who vandalized a number of businesses in downtown Toronto, including retail stores, coffee shops and bank. I am responsible for breaking a number of windows at these street side businesses. I also threw a rock at a police vehicle which I only recently learned was occupied by a Toronto Police officer at the time. I know my actions that day contributed to the escalation of the G20 riot and the terrifying feeling of helplessness that the police officer in that car must have been experienced.

Although at the time I never meant to hurt, intimidate or scare anyone at the protest, I realize now that my actions did precisely that. I am pained by and deeply aware of the fact that through my actions, some store employees and other members of the public, as well as some police officers, were all placed in harm's way and were fearful for their safety. While I personally did not actually cause injury to anyone, I realize and deeply regret the fact that my actions may have encouraged or prompted others in the commission of vandalism and violence against other businesses and people, including police officers.

I recognize also that the damage I caused resulted in significant cost to the various businesses. I also understand and apologize for the fact that my actions caused very significant harm to the City of Toronto, both with respect to the reputation of your city and the disruption of the day-to-day lives of Torontonians and those living in the surrounding areas.

I am deeply troubled by the fact that my personal decisions and actions on June 26, 2010 contributed in tarnishing Toronto's otherwise excellent reputation on the local, national and international stages. My thoughtless and selfish actions created a black mark on the image of Toronto and as each and every person ought to do in the face of such embarrassing conduct, I take full responsibility for the harm I caused.

In addition to the effects this has had on the City of Toronto and its residents, I have also caused harm and difficulties for my family and friends. My actions have shocked and embarrassed them. Prior to my involvement during the G20 protest, I had never been arrested or involved with the criminal justice system in Canada or where I live, in the United States. I was arrested by a number of FBI agents, in front of countless people me and my family know very well, while I was working in my home town. Everyone watched as I was placed in handcuffs by FBI agents, taken into custody and ultimately driven off to the airport and taken by police escort to Pearson International Airport where I was greeted and taken into custody by Toronto Police Service officers. The feelings of shame and humiliation were overwhelming.

I was and continue to be a contributing member of my community. I value my community very much and I know that others must feel very much the same about their community. Unfortunately, my actions on June 26, 2010 have changed the way me and my family are perceived in our community and it has obviously negatively changed the way Torontonians perceive their city.

I would never want anyone from outside the community to visit and cause the type of disturbance and damage I caused in Toronto. For this, I deeply wish I could take back what I know cannot be undone. Sadly, all of this could have been avoided if I did not make the awful decisions I did on June 26, 2010. The sense of regret and shame I carry with me every single day is tremendous and profound.

My actions on June 26, 2010 in Toronto were unacceptable, reckless, irresponsible and harmful to you, the residents of Toronto. While there is no excuse for my behavior, I hope that this letter conveys my deep sense of remorse, shame and embarrassment.

I am deeply sorry for everything I did and I am prepared to accept whatever punishment the court determines is most appropriate.

Very sincerely,

Signed, "Richard Morano"

28Tab 2 and following of Exhibit 3 are letters in support of Mr. Morano including those by his parents. With respect to the "Crown Sentencing Materials", Exhibit 2 the Index of same is set out as follows:

CHART OF CHARGES

Charge	Date	Damage	Total Cost
Mischief over $5,000 (TPS Car 766)	2010-06-26	Car eventually burned Receipt included	$33,733.00
Mischief Endanger Life (American Apparel)	2010-06-26	Front windows and door smashed - window display ruined Receipt included	$23,359.77
Mischief Over $5,000 (All Leather Store)	2010-06-26	Front windows smashed and looting Receipt included	$27,955.76
Theft Under $5,000 (Tim Horton's)	2010-06-26	Chair Stolen – window smashed No Receipt	N/A
Mischief Endanger Life $5,000 (Starbucks-College)	2010-06-26	Front windows and doors smashed Receipt included	$38,500.00
Mischief Over $5,000 (CIBC Bank)	2010-06-26	Bank machine damage and smashed windows - Receipt included	$107,163.83
Total Damage cost			$230,712.36

VICTIM IMPACT STATEMENTS

Staff Sergeant Graham Queen – Emotional Loss

35Tab 2 in part is a "Victim Impact Statement" of P.C. Graham Queen dated December 7, 2010. In part:

36I have been a police officer in the city of Toronto for 22 years. This incident has been one of the most difficult to come to terms with. I, along with Staff Sergeant Don Hale of 55 Division were assigned as rear markers for the Ontario Federation of Labour parade scheduled for a 1:30 p.m. start on Saturday June 26th, 2010. My function on the day the police vehicle and myself were attacked was to protect the people in the parade, to ensure their safety and allow their right to peacefully protest.

37I had just entered my vehicle when I saw three males dressed completely in black race from the crowd. One male jumped on the hood of the vehicle and landed on the windshield, partially caving it in. I saw a male on the passenger side of the vehicle. At the same time a male was at my driver's door. They both were armed with wooden poles. They began smashing furiously at the windows of the vehicle. I put over the police radio a 10-33 distress call. This was the second time in my police career that I had felt the need for urgent police assistance. The male on the hood of the car moved to the rear of the vehicle. The male at the driver's door smashed the window and looked directly at me. He continued swinging the pole, striking me on the back of the head. At this time I was wearing a bright yellow police jacket with police patches on the shoulder and black police markings on the front and back. I attempted to turn on the ignition of the vehicle but soon realized that the rear view mirror was now facing the ground and the side view mirrors had been smashed. I felt by driving away that I would strike either citizens or police officers. During the attack I did not hear any of the suspects speak. I could only see their eyes through their masks. I could establish that they were males.

38During the attack I experienced several emotions. Initially I felt fear as the situation seemed completely out of control. After being assaulted I was extremely concerned for my safety. I was disoriented and felt another blow would render me unconscious. I believed that I could be killed if these males were able to get me out of the vehicle. I felt that I could not afford to take another hit to the head. I was prepared to use any level of force necessary to protect myself.

Physical Injury

39During this event I received a blow to the back of the head with a wooden pole. The blow to the head caused pain and pronounced disorientation for an extended period of time. I suffered from headaches for the next two days after the assault. I attended the Toronto General Hospital Emergency department, receiving tests for a possible concussion. Once the tests were completed, I was cleared to return to duty.

Financial Impact

40During the attack and the resulting aftermath, the following property was damaged, stolen or destroyed: Personal: Prescription Bifocal Eyeglasses, Replacement cost: $312.00. Reimbursed by Toronto Police Service. Police: Scout Car 766, MWS and related computer equipment, Radio System, trunk contents. Sensitive documents related to the G-20 Summit, including personal information regarding numerous police officers. Scout Car 3251 and all of the contents. Due to the burning of Scout 3251 the storefront at 415 Queen Street West was damaged.

American Apparel – Victim Statements

41Tab 3 of Exhibit #2 provides Victim Statements by Robert Bergon on November 5, 2010, District Manager of American Apparel and Samantha Young, also on November 5, 2010 who was the Manager for Toronto.

42Robert Bergon in part:

• I was standing at the cash – heard banging on windows – I couldn't see because of window display.
• Heard banging at front door.
• Glass smashed and some of it hit me.
• I stepped back (not hurt).
• Male stepped through the glass.
• He came in with pipe in his hand.
• I was pretty frightened.
• He pulled down a mannequin and tried to drag it through the door.
• Others were at the back – they were screaming for me to go there as well but I stayed at the cash.
• Feces all over the store and on the mannequins and clothing and on the floor and sidewalk.
• Mannequins were stolen and they used our mannequins' arms and legs to smash Pizza Pizza.
• My staff was also frightened – they are young students - I was very worried for my staff.

43Samantha Young in part:

• When we realized they were coming by our store I gathered everyone and got them to leave out the back door.
• Suddenly everybody was running on Yonge – people were really scared.
• There were feces all over the windows – on the front window mannequins and merchandise and the floor.
• Stood beside the feces hoping to keep people from looting our store.
• We had to wait for someone to come and board up the store before we could leave.
• I was pretty shaken up for a few days.
• I've lived in Toronto my whole life and I've never been that scared.
• I thought they might want to hurt us – it was really scary.

Starbucks – Victim Impact Statement

44Tab 6 of Exhibit #2 is a Victim Impact Statement of Khrista Madisen who was employed at the Starbucks store at the corner of College and Yonge Streets in Toronto. In part:

45At approximately 4 p.m. I received a phone call from my district manager informing me that a group of protesters were smashing windows of various businesses and that they were moving quickly north along Yonge Street. At this point, the first object was thrown against one of our windows. I will never forget that first smashing sound. It was so loud and echoed throughout the whole space causing many of my customers and employees to shout in fear. Five huge windows served as the walls to our store and both our doors were also comprised of glass. They continued to use objects to smash our windows and doors. As each of our large windows had double panes of glass it seemed to last forever, each smashing sound reverberating off our walls, seeming to never end. We later learned they used bricks, and furniture (chairs/tables) from the Tim Horton's across the street, which they vandalized at the same time.

46Everyone around me had panic and fear on their faces, many were screaming, some were crying tears. Most customers had leapt up from their tables to join the staff behind the counter and in the back hall. Some were trapped under their tables, afraid to move out of fear of being hurt by the flying glass or projectile objects being thrown without regard to the people trapped inside.

47As the store manager, I felt responsible for the safety of each and every person trapped inside the store, my heart was beating a mile a minute. I was sweating and felt like throwing up, but I had to remain calm and focused as everyone was looking to me to lead the way. I was so nervous and sick with fear. My mind was racing as to how far these vandals would take their destruction.

48As we were leaving the store, several of my employees broke down in tears.

49I would like those responsible to understand that it was more than a faceless company that they were vandalizing. There were actual people inside these buildings and workspaces that they were smashing and damaging. They could have caused someone serious physical harm and this is the reality. I will never forget that day and the consequences have continued to affect me to this day.

FREEDOM OF EXPRESSION AND THE RULE OF LAW

50The importance of freedom of expression has been recognized since early times: see John Milton, Areopagitica; A Speech for the Liberty of Unlicenc'd Printing, to the Parliament of England (London 1664), and as well John Stuart Mill, "On Liberty" in On Liberty and Considerations of Representative Government (Oxford, 1946), at p. 14:

"If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had power, would be justified in silencing mankind."

And after stating that "All silencing of discussion is an assumption of infallibility", he said, at p. 16:

"Yet it is as evident itself, as any amount of argument can make it, that ages are no more infallible than individuals; every age having held many opinions which subsequent ages have deemed not only false but absurd; and it is as certain that many opinions now general will be rejected by future ages, as it is that many, once general, are rejected by the present."

51Nothing in the vast literature on this subject reduces the importance of Mill's words. The principle of freedom of speech and expression has been firmly accepted as a necessary feature of modern democracy.

52What compromises the regulated area includes restrictions for purposes of decency and public order, and specifically with respect to the freedom of expression, prohibitions concerning criminal libel and sedition.

53Freedom is not the absence of restraint. That's license. Freedom is a system of restraints, a system of rules, laws, and norms that guide conduct in a free society, within which all of us are permitted to exercise our individual freedoms.

54We are all stewards of a justice system that strives daily to balance individual responsibilities against individual freedoms for the larger benefit of our free society under the rule of law. Regardless of the circumstances, we owe a higher duty to the rule of law than to the dictates of any individual.

55Sentencing has numerous goals, including punishment, rehabilitation, and deterrence. But sentences should not be based on revenge. See Furman v. Georgia, 408 U.S. 238, 343 (1972) (Marshall, J., concurring); see also Ex parte United States, 242 U.S. 27, 38 (1916).

56Some disparities in sentences will always be unavoidable.

57Guidelines for determining whether a sentence was disproportionate can include (1) comparison of the nature and gravity of the offense and the harshness of the penalty, (2) an intra-jurisdictional comparison to sentences imposed on similarly situated accused, and (3) an inter-jurisdictional comparison of the same. See inter alia, R. v. Kennedy Williams, 2013 BCCA 18 and R. v. Alexander Keelty Peeare, 2013 BCCA 115.

58Defense counsel has presented extensive mitigation evidence (i.e., the defendant's education level, family responsibilities, community service, acceptance of responsibility, remorse) at the sentencing hearing.

59The substance of the right of freedom of expression was discussed in Irwin Toy Ltd. V. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927, where Chief Justice Dickson, speaking for the majority, said this at 968 – 971:

"…Freedom of expression was entrenched in our Constitution and is guaranteed in the Quebec Charter so as to ensure that everyone can manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream. Such protection is, in the words of both the Canadian and Quebec Charters, "fundamental" because in a free, pluralistic and democratic society we prize a diversity of ideas and opinions for their inherent value both to the community and to the individual. Free expression was for Cardozo J. of the United States Supreme Court "the matrix, the indispensable condition of nearly every other form of freedom" (Palko v. Connecticut, 302 U.S. 319 (1937), at p. 327); for Rand J. of the Supreme Court of Canada, it was "little less vital to man's mind and spirit than breathing is to his physical existence" (Switzman v. Elbling, 1957 CanLII 2 (SCC), [1957] S.C.R. 285, at p.306). And as the European Court stated in the Handyside case, Eur. Court H.R. decision of 29 April 1976, Series A No. 24, at p. 23, freedom of expression:

…is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society".

"We cannot, then, exclude human activity from the scope of guaranteed free expression on the basis of the content or meaning being conveyed. Indeed, if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee. Of course, while most human activity combines expressive and physical elements, some human activity is purely physical and does not convey or attempt to convey meaning. It might be difficult to characterize certain day-to-day tasks, like parking a car, as having expressive content. To bring such activity within the protected sphere, the plaintiff would have to show that it was performed to convey a meaning."

60Freedom of expression assumes ability in the listener not to listen but to turn away if that is her wish. The Charter does not guarantee an audience and, thus, a constitutional right to listen must embrace a correlative right not listen.

61See Black Jr., "He Cannot Choose but Hear: The Plight of the Captive Auditor" (1953), 53 Columbia L. Rev. 960 at p. 967. Free speech, accordingly, does not include a right to have one's message listened to. In fact, an important justification for permitting people to speak freely is that those to whom the message is offensive may simply "avert their eyes" or walk away.

62It's arguable that Mr. Morano played a minimal role in this concerted activity? Did he have a lack of knowledge or understanding of the scope and structure of the enterprise and activities indicative of a role as minimal participant?

63It is important to look at the overall level and nature of the violence used on the occasion in which Mr. Morano was involved, the extent of any premeditation, the numbers of persons involved and, in the context of the overall picture, the specific acts of the individual accused.

64The authorities stress the importance of the distinction between riots which are premeditated and preplanned and those which are spontaneous.

65The task of sentencing is a difficult one. There is a large amount of video and other evidence and the necessity to deal with the cases over a period of months. In the present case, there is a video record which clearly identifies Mr. Morano and shows at least some of what he did. All riots differ in origin, numbers involved, aim, duration and effect. The riot in the present case is of the utmost gravity. It involved many hundreds of people. It was aimed at the police. Police officers were injured and put in fear in our citizenry and hundreds of thousands of dollars' worth of damage was done.

66As the hours passed I have no doubt that there were clear signs of organisation among the rioters. In consequence, what had initially, no doubt, been spontaneous became marked by premeditation; hence those rioters who covered their faces because of what they intended to do and those who left the scene but later returned after changing clothing.

67It is not the court's task to investigate the precise origins of the violence and, in any event those origins paled into insignificance compared with the many hours of rioting which followed.

68It is to be noted that the accused is not sentenced for mere encouragement by presence. He was present for a significant period of time. It is a striking feature of the present case that video film clearly identified the accused by face and clothing and showed some of his activity.

69The G-20 riots left the shopping heart of Toronto with large numbers of looted shops and smashed shop fronts.

70The financial cost to the businesses and the harm done is incalculable. Toronto must endure the stigma which the terrible events left in their wake as the world watched the mayhem of that night on its television screens.

71To anyone who lives or works in Toronto, the effect of what had happened was heartbreaking.

72The crimes committed were of different levels of seriousness, but as I shall come to, all contributed to the terrible scenes that night, and to the damage Toronto endured. The common feature of the crimes that night is that all of those involved took advantage of the mayhem and disorder to commit crime.

73Any participation whatsoever of whatever duration in the criminal activities of that night, irrespective of its precise form, derives its gravity because it was carried on by one of those who by sheer weight subjected the commercial areas to a sustained onslaught of related offences. Anyone on the streets that night who took part in crime added to the effects of the overall criminality, and hampered the efforts of the Police to bring it under control, and of the owners and operators of those businesses trying to protect them.

74On the one hand, I must have regard to the total picture as it has been presented and on the other I must pay heed, as I have done, to the specific acts of an individual such as the accused. While it is plain that there were many, many people on the street, some of whom for a whole variety of reasons may never be prosecuted, and may never be called to answer for the acts which they perpetrated and thus would escape punishment, nevertheless in my judgment it is neither wrong in principle nor a matter which should affect sentence of those prosecuted that the appropriate sentence should be given to the accused that is before the court.

75Those who choose to take part in activities of this type must understand that they do so at their peril. It must be equally clear, both to those who are apprehended and to those who might be tempted to behave in this way in the future, that the court will have no hesitation in marking the seriousness of what has occurred and it will act in such a way in the present case as will I hope, send out a clear and unambiguous message as to the consequences to the individual. It is a message which I trust will deter others from engaging in this type of behaviour in the future.

76The people of Toronto are entitled to look to the law for the protection and to the courts to punish those who behaved so outrageously. It would be wholly unreal therefore for me to have regard only to the specific acts which Mr. Morano committed as if they had been committed in isolation. In my judgment it would be a wholly wrong approach to take the acts of any individual participant on their own. Those acts were not committed in isolation and, as I have already indicated, it is a fact which substantially aggravates the gravity of the offence. The court has to pay regard to the level and nature of the criminal conduct that night, to its scale, the extent to which it was premeditated, the number of persons engaged the events of that evening and finally, in the context of the overall picture, the specific acts of the individual accused.

77As a starting point, it seems inevitable that any adult offender out and about Toronto that evening who took part in crimes of the type I have described must expect to lose his liberty for some period of time.

REPRESENTATIONS OF THE VICTIMS

78The sentence that I will impose have as one of the principal constituents the element of retribution. In that respect the statements and representations made by victims are an important factor to be taken into account.

"It is elementary principle that the damaging and distressing effects of a crime on the victim represent an important factor in the sentencing decision, and those distressing consequences may include the anguish and emotional suffering of the victim."

79I make it clear that I take into account the statements in relation to the damaging and distressing effects of the crime.

80All the statements contain graphic evidence of the effects of the events. I take all of the statements into account on that basis.

81Turning to basic principles it is not the individual act of a particular defendant that is the essence of the offence of riot. It is the use of violence in circumstances where so many people are present as to cause or inspire fear in the general public, and other specific, targeted groups such as the police. The individual act requires to be looked at in the context of that fear. The offences that bring the accused before the court occurred when widespread violence was occurring in Toronto. Huge amounts of damage were caused; police officers lives put in danger, injuries were caused to police officers, scarce public funds were expended on policing and on clearing up; ordinary citizens were restricted from going about their everyday lives; and businesses were adversely affected by closing early.

RIOT-RELATED OFFENDING – SENTENCING DECISIONS

82One of the early judgments handed down in the Manchester, England riots imposed sentences significantly in excess of the definitive sentencing guideline in effect at the time. In R. v. Carter & Others (Sentencing Remarks) [2011] EW Misc. 12 (CrownC): para. [13], the court prescribed significantly higher sentence ranges for a variety of offences committed during the August 2011 riots in Britain. The leading appellate judgment is R. v. Blackshaw and others [2011] EWCA Crim. 2312, from the Court of Appeal in October 2011. In that judgment, the Court reviewed ten sentences for offences committed during the riots, upholding seven and reducing three. Two of the cases appealed involved incitement through the use of Facebook; the remaining were crimes of burglary or handling stolen goods. The sentences upheld in Blackshaw confirmed the powerful aggravating effect of the riot context.

83Committing an offence at a time of social disorder is arguable inherently worse or deserving of greater punishment. This is a legitimate aggravating circumstance. Anyone on the streets of Toronto those days who took part in crime added to the effects of the overall criminality, and hampered the efforts of the police to bring it under control, and of the owners and operators of those businesses trying to protect them. To what extent was Mr. Morano aware of the wider harm being created, or to what extent would a reasonable person have been aware? In addition, to what degree did his actions actually impede the work of the police?

84General deterrence is one of the statutory sentencing objectives. There are compelling normative reasons for punishing young offenders less harshly, and in ways that differ from the sentences imposed on adults convicted of comparable offences. It is well known that young if not youthful, offenders receive more lenient sentences than adults convicted of comparable offences.

MITIGATION

85Youthfulness maybe regarded as a mitigation, but what of another claim for mitigation: the spontaneity of much of the riot-related offending people who took advantage of events to commit crimes which they would not otherwise have committed. Offenders who act on impulse and in response to unexpected 'opportunities' for criminal behaviour may claim to be less blameworthy than offenders who plan to commit an offence.

86The deterrent value associated with sentencing arises from the custodial element, rather than the length of the sentence. Severe sentences can only deter potential offenders to the extent that those individuals are aware of the penalties.

87Sentencing objectives include: To rehabilitate the offender; to deter other offenders from offending; To deter this offender from offending again; and To impose a sentence which reflects the seriousness of the crime.

88The destruction caused by riots goes beyond the mere sum of each act committed by the individual participants. It symbolizes a threat to social order itself. When seemingly peaceable crowds of people use the power of numbers and the guise of anonymity to turn against their neighbours, the result is an overwhelming attack on the community as a whole- on the community's sense of pride, safety, trust, and humanity. The sense of violation felt by community members is further exacerbated by the seeming inexplicability and pointlessness of the harmful acts committed.

89The desire for revenge is a very personal one, much more so than the desire for retribution or punishment. Vengefulness is a retaliatory instinct triggered when one feels wrongfully harmed and seeks to restore balance through returning injury for injury.

90The unconstructive nature of vengeance as a response to crime, however, inevitably limits its utility.

DEFINITION

91Inconsistent definitions exist regarding the term "riot". The World Health Organization (2002, p. 5, as cited in Gavrielides, 2012) lists collective violence, i.e. group violence, as one of three categories of violence, which they define broadly as "the international use of physical force or power, threatened or actual, against oneself, another person, or against a group or community that either results in or has a high likelihood of resulting in injury, death, psychological harm, maldevelopment or deprivation".

VICTIM REPARATION

92Victims of crime suffer tremendously. They can be harmed by crime in obvious ways through physical injuries and financial losses, and in less obvious ways through the infliction of stress and psychological trauma.

93There is a mistaken belief that increasing the severity of a given criminal sanction will consistently produce matching increases in general deterrence, thus the primary justification for a wide range of justice policies enacted in recent years particularly those aiming to "get tough" on crime.

GENERAL DETERRENCE

94One of the earliest Canadian cases to explicitly name general deterrence a sentencing purpose that must be given some degree of consideration in all criminal cases was R. v. Willaert (1953):

"…The governing principle of deterrence is, within reason and common sense, that the emotion of fear should be brought into play so that the offender may be made afraid to offend again and also so that others who may have contemplated offending will be restrained by the same controlling emotion.

Society must be reasonably assured that the punishment meted out to one will not actually encourage others, and when some form of crime has become wide-spread the element of deterrence must look more to the restraining of others than to the actual offender before the court.

The sentencing purpose of retribution, typically considered to play an important role in achieving a general effect, is also discussed:

…the community is anxious to express its repudiation of the crime committed and to establish and assert the welfare of the community against the evil in its midst. Thus, the infliction of punishment becomes a source of security to all…"

95Several decisions that eventually followed Willaert reiterated general deterrence and retribution as two among four key sentencing purposes to be considered in all criminal cases, the others being protection of the public and rehabilitation (R. v. Goltz, 1991; R. v. L., 1986; R. v. Luxton, 1990; R. v. Lyons, 1987; R. v. Sargeant, 1974; R. v. Shropshire, 1995), yet still in none of these cases was specific guidance provided as to where and when each of these principles were to be given precedence when sentencing any given offender. Rather, they too affirmed the case-by-case approach:

"In a rational system of sentencing, the respective importance of prevention, deterrence, retribution and rehabilitation will vary according to the nature of the crime and the circumstances of the offence (R. v. Lyons, 1987, para. 329)."

96R. v. Preston (1990) was one of the first decisions to address in detail the deterrence/rehabilitation paradox. Citing as crucial the finding that incarceration is both costly and demonstrably ineffective in deterring certain types of criminal activity, Preston concluded that sentencing judges must seriously consider a non-custodial form of disposition anytime the successful rehabilitation of an offender remains a likely possibility.

97Preston addressed and revisited a number of important questions regarding the lack of specific guidance provided to judges during the sentencing process, particularly regarding the balancing of punitive aims with rehabilitative aims.

98Bill C-41 – known as The Sentencing Reform Act —was drafted in 1994, passed by Parliament in 1995, came into force on September 3rd, 1996. The aims can be found in section 718 of the Code, the first part of which reads as follows:

718. The fundamental purpose of sentencing 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 just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to deter the offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

"Arguably, sections 718(a) through (d) merely restate the basic sentencing aims already established in previous decades of case law. What was new at the time are paras. (e) and (f), which bring particular focus on the key restorative goals of repairing harm suffered by victims and promoting a sense of responsibility on the part of offenders."

99In an effort to resolve previous issues associate with balancing conflicting sentencing aims, section 718 contains clauses providing guidance as to the degree of importance to be placed on each of these purposes during sentencing. Section 718.1, also known as the fundamental purpose of sentencing, instructs as follows –

718.1 A sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender.

100Section 718.2 provides:

718.2 A court that imposes a sentence shall also take into consideration the following principles […]

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

COMPARATIVE SENTENCING DATA – VANCOUVER RIOTERS

Table 1. Descriptives and sentences of adult rioters sentenced in Vancouver Provincial Court between January 1, 2012 and December 31, 2012

Name	YOB	Date Sentenced	Charges Convicted	Sentence Received
Ryan Dickinson	1992	Feb. 16, 2012	Taking part in a riot Breach of undertaking	17 months incarceration, 2 yrs, probation
Emmanuel Alviar	1991	Jan. 11, 2012	Taking part in a riot	30 days incarceration, 16 months' probation, $100 victim surcharge, 150 hours CWS
Robert Snelgrove	1986	Jul. 3, 2012	Taking part in a riot	5 months CSO, 16 months' probation, $500 victim surcharge, 150 hours CWS
Sean Yates	1989	Jul. 20, 2012	Taking part in a riot	7 months incarceration, 1 yr. probation, $500 victim surcharge
Luke Patillo	1991	Aug. 24, 2012	Taking part in a riot	45 days incarceration, probation until expiration of sentence
Camille Cacnio	1989	Sep. 7, 2012	Taking part in a riot	Suspended sentence, 2 yrs' probation, 150 hrs CWS
Sean Burkett	1993	Sep. 7, 2012	Taking part in a riot	90 days CSO, 1 yr, probation, 50 hours CWS
Alexander Peepre	1990	Sep. 13, 2012	Taking part in a riot	60 days intermittent incarceration, 18 mos' probation, $2000 victim surcharge, 125 hours CWS
Lincoln-Kennedy Williams	1990	Sep. 21, 2012	Taking part in a riot	90 days intermittent incarceration, 15 mos' probation, 100 hrs. CWS
Alexander Pennington	1990	Sep. 25, 2012	Taking part in a riot	6 months CSO, 2 yrs' probation, 100 hours CWS
Dylan Long	1992	Oct. 5, 2012	Taking part in a riot	6 months CSO, 15 mos' probation, 100 hrs. CWS
Jacob Pateman	1992	Oct. 5, 2012	Taking part in riot	60 days CSO, 15 mos' probation, 100 hours CWS
Connor Epp	1991	Oct. 24, 2012	Taking part in a riot	90 days CSO, 9 mos' probation, $100 victim surcharge, 50 hrs CWS
Richard Dorosh	1993	Oct. 24, 2012	Taking part in a riot	4 months incarceration
John Sawicki	1992	Oct. 25, 2012	Taking part in a riot	9 months CSO, 15 mos' probation, $100 victim surcharge
Timothy Law	1990	Nov. 5, 2012	Taking part in a riot Breach of undertaking	4 months incarceration, 2 yrs' probation, $1500 victim surcharge, 150 hrs. CWS
Walintong Grueso Ledesma	1974	Nov. 29, 2012	Taking part in a riot	4 months CSO, 15 mos' probation, $100 victim surcharge, 100 hrs CWS
Jerry Wernicke	1983	Dec. 7, 2012	Taking part in a riot	30 days incarceration, probation until expiration of sentence
Willmar Renderos	1986	Dec. 21, 2012	Taking part in a riot	45 days incarceration, probation until expiration of sentence
Eric Hodson	1992	Dec. 21, 2012	Taking part in a riot	6 months CSO, 18 mos' probation, $100 victim surcharge, 125 hrs CWS

R. v. LOEWEN

101In R. v. Radjenovic, 2013 BCCA 522, the British Columbia Court of Appeal considered section 718 of the Criminal Code and noted, at paragraph 18, that the "majority of individuals in our society fortunately have internal controls that enable them to avoid breaching the law and causing harm, or threats of harm, to their fellow citizens. A few do not, as illustrated by their breach of normative conduct, and in those instances it falls to the courts to impose measures of external restraint such as probation, fines or imprisonment."

102Section 718.2 (b) of the Criminal Code states that "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances."

103Section 718.1 of the Criminal Code states that any sentence imposed must be "proportionate to the gravity of the offence and the degree of responsibility of the offender." In R. v. Cluney, 2013 NLCA 46, the Court of Appeal, at paragraph 16, indicated that the "principle of proportionality applies to sentencing for all criminal offences… The appropriate range of sentence is related to the gravity of the offence and the moral blameworthiness of the offender."

104Section 718.2 (a) of the Criminal Code indicates that a "sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender." In R.v. Briand, 2010 NLCA 67, the Court of Appeal stressed the importance of considering an offender's personal circumstances in applying section 718.2(a) of the Criminal Code.

105Section 718.2(d) states that "an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances" and section 718.2(e) states that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders."

106In Berner, the British Columbia Court of Appeal noted that broadly "speaking, a sentencing judge looks to the conduct and culpability of the offender and punishes the offender for that conduct through the application of the principles and objectives of deterrence, rehabilitation, denunciation and proportionality."

107The 1992 British Columbia Court of Appeal decision R. v. Loewen is the guiding precedent on sentencing for participation in a riot.

108The appellant in this case, George Loewen, was charged with one count of mischief under $1000, one count of mischief over $1000, and one count of participating in a riot, following his partaking in the riot that took place in Penticton, B.C., on July 28th 1991. During his sentencing, Loewen was acknowledged to be an offender who ordinarily would not receive a custody sentence: He was 18 years old at the time of the offence and carried no criminal record, and an extensive pre-sentence report prepared before the trial court revealed a number of additional mitigating factors, including that Loewen was the product of a broken home, that he struggled with ADHD, that he was liked and admired by many teachers and students at the high school he attended, and that he had pled guilty for his actions and expressed deep remorse throughout his court hearings. Loewen was sentenced to twelve months imprisonment for his role in the riot, one month for each count of mischief and ten months for one count of participating in a riot. Although the British Columbia Court of Appeal later reduced his sentence to six months (in conjunction with one year's probation and 150 hours of community work), the judge ruled that the imposition of a custody sentence remained appropriate in the circumstances.

109During the course of the analysis, the Loewen decision was found to have influenced the sentencing of the 2011 Vancouver rioters in four major ways:

1. Through framing the context of a riot as an aggravating factor;
2. Through stipulating that deterrence and denunciation are the key sentencing purposes in riot cases;
3. Through stipulating that the two sentencing purposes of deterrence and denunciation could only be met through the imposition of a custody sentence served in an institutional setting; and
4. Through downplaying relevant mitigating factors that would ordinarily rule out the use of custody.

110The most fundamental way in which Loewen (1992) guided the sentencing of the examined rioters was through establishing that a crime that takes place during the course of a riot is aggravated by the context of the riot, and thus warrants a more punitive sentence that had the crime taken place in isolation. Arguably the most frequent reason cited by Crown Counsel in defense of this position was that the act of participating in a riot, by its very nature, encourages others nearby to join in an participate as well. Rioters are thus to be held responsible not only for their own actions, but for the actions of others around them.

CONDITIONAL SENTENCE

111Although CSOs were unavailable at the time R. v. Loewen (1992), 1992 CanLII 6003 (BC CA), 75 C.C.C. (3d) 184 (BCCA), was decided, a CSO is technically a custody sentence, and Loewen does not openly state that the custody sentences that rioters must "inevitably" receive cannot be served in any environment other than that of a custodial institution. Thus, whether or not CSOs were appropriate for rioters is a source of significant controversy. Would sentencing a rioter to a CSO would be "consistent with the fundamental purpose and principles of sentencing"?

112The landmark case of R. v. Proulx [2000], SCR 61 instrumental in establishing that CSOs should be considered in all cases if the criteria listed under section 742.1 are met and could also effectively meet the sentencing purposes of general deterrence and denunciation.

113Could a CSO fulfill the principles of deterrence and denunciation as effectively as a period of incarceration? Would the public sentencing process itself deter individuals just as much, if not more, than the threat of incarceration, and thus the general public would have been deterred simply through witnessing the arrests and convictions of those rioters sentenced thus far. Denunciation could also be assumed to have been met through the same means. Defense Counsel argues that incarceration is particularly unnecessary in those cases where the accused was a young, first-time offender whose participation in the riot was at the lower end of the scale, because sentencing such an individual would send a particularly strong message to the public regarding the likelihood, and consequences, of being caught and convicted. By convicting Mr. Morano, society has already stigmatized him as a person who has committed a serious offence, and has denounced his offence. The Supreme Court of Canada has expressed itself quite strong on the importance of stigma as a consequence of criminal proceedings. A public charge, trial and conviction for a serious offence brands a person for life, constitutes serious punishment, and is an important part of the way society brings offenders to account for their misconduct.

114The burden of each rioters' respective criminal convictions is often significantly elevated by the preservation of information about their conviction and sentencing on the internet, and the ease with which such information can be publicly accessed.

115The permanent effects of this "virtual jail" are exacerbated by the advent of portable devices that allow one to take photos and/or record video footage, and the increase in the number of individuals who carry such devices with them at all times.

116Consistent with the fundamental purpose of sentencing contained within section 718.1 of the Code, the main factor taken into consideration by Crown and Defense counsel as either aggravating or mitigating is each case is the degree of participation exhibited by an accused during the riot. As already indicated this typically determined through some combination of: the length of time that the accused participated; the nature and seriousness of the crimes committed by the accused; and the degree to which the accused's acts had the effect of instigating the riot and/or directly encouraging other individuals who were present at the riot to participate.

117I have had the opportunity to review many of the decisions with respect to the G-20 riots, in particular R. v. Catenacci, [2011] O.J. 6466 (OCJ) and 2012 ONCA 187, R. v. Ceoon, 2012 ONCJ 72, R. v. Coote, 2011 ONCJ 778, R. v. Henry, 2011 ONCJ 501, R. v. Horton, 2012 ONCJ 724 and R. v. Ravindharaf, 2012 ONSC 6260.

118In R. v. Peepre, 2013 BCCA 115, the British Columbia Court of Appeal upheld the imposition of an intermittent sentence upon an offender who had been convicted of offences contrary to sections 65 and 266 of the Criminal Code arising out of his participation in the Vancouver Stanley Cup riots. See also R.v. Williams, 2013 BCCA 116.

119Both decisions upheld the view of Loewen that general deterrence and denunciation were of particular concern when sentencing an individual for participation in a riot but that concern must be balanced against the other fundamental principle of sentencing, rehabilitation.

120A conditional sentence would not endanger public security if it were practical, if not enforceable, a term of imprisonment is indicated in all of the circumstances. The courts in reality could be considered part of the same transaction if not same event. Thus the sentences to be imposed are to be concurrent, not consecutive. See R. v. Kienapple, [1975] 1 SCR 729.

121I have commented on Mr. Morano's conduct. The sentence is to take into account the requirements of section 718 of the Criminal Code.

SENTENCE

122I am imposing a sentence of seven months imprisonment, less pre-trial custody to be followed by a period of probation of two years, with the following conditions: to keep the peace and be of good behaviour, not to be found within the City of Toronto, and not to possess any of the weapons set out in section 109(2)(b) of the Criminal Code.

123Mr. Morano is to pay restitution to Staff Sergeant Graham Queen in the sum of $1000.00, $500.00 within 90 days and $100.00 each month thereafter, and further $750.00 on each of Counts 6, 7, 10 and 13 at the rate of $100.00 each month pursuant to each count to commence within six months of today's date.

Released: February 3, 2014

Signed by: "Justice M.A. Zuker"