Court File and Parties

Court File No.: Toronto Region

Date: February 13, 2012

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Tyler Robert Coon

Before: Justice F. Weinper

Heard on: October 6, 2011 and December 8, 2011

Reasons for Judgment released on: February 13, 2012

Counsel:

Ms. C. Rhinelander; Ms. Elizabeth Nadeau ........................................................ for the Crown

Ms. J. Bedford; Ms. A. Mackay ....................................... for the accused Tyler Robert Coon

WEINPER, J.:

Background

[1] On October 6, 2011, Tyler Coon pleaded guilty to two counts of mischief over $5000. These offences were committed during the G20 summit which took place in Toronto in June, 2010.

[2] The matter was put over to December 8, 2011 for the preparation of a pre-sentence report at which time I heard sentencing submissions.

Circumstances of the Offences

[3] On June 26 and 27, 2010, Toronto hosted the G20 Summit. The Summit brought together heads of state from many of the world's largest nations for meetings over the two-day period. On Saturday June 26, 2010, peaceful protesters were joined by a larger group of protesters who caused damage in the downtown core of Toronto. During the events, Mr. Coon disguised his appearance by wearing a bandana over his face. At approximately 4:31 p.m. Mr. Coon and his friend, a young person whom I shall refer to as "J.M.", walked towards the Starbuck's Coffee Shop located at 450 Yonge Street in Toronto. Mr. Coon and J.M. assisted another male in picking up a table, which had been removed from a Tim Horton's Coffee Shop located across the street, and together they threw the table at a large window of the Starbuck's Coffee Shop, breaking it. A few minutes later, at approximately 4:33 p.m., Mr. Coon and J.M. were walking near the Rexall IDA Drug Store located at 790 Bay Street in the City of Toronto. Mr. Coon threw a large wooden sign into the glass door of the drug store causing the glass to shatter.

[4] Although Mr. Coon wore a bandana over his face and a baseball cap over his head, he wore very distinctive clothing and was captured on digital photographs and video taken by onlookers. On July 19, 2010, J.M. was arrested and charged. On September 30, 2010, J.M. met with TPS detectives and identified Mr. Coon as the person depicted in the video and photographs of the mischief. On Monday October 4, 2010, Mr. Coon was arrested. At the time of his arrest, Mr. Coon was wearing the distinctive baseball cap depicted in the photographs and video of the incidents. He was held for a show cause hearing and ultimately released on a recognizance on October 6, 2010.

Victim/Community Impact

[5] The damage to the Starbuck's Coffee Shop was in excess of $5,000. The lost sales over the next 3.5 days of closure were $16,000. The cost of labour hours paid to staff for missing shifts over 3.5 days was $3,500. The cost of food, beverage supplies and other supplies lost due to the damage was $1,000.

[6] The Rexall IDA window was replaced at a cost of $1,057. The business loss due to closure of the drug store was $2,000; salaries paid were $500 and business lost due to the closure until the door was fixed was approximately $2,000.

[7] A Community Impact Statement, prepared by William Blair, The Chief of The Toronto Police Service, was filed. It reads, in part:

I am writing in respect of the impact on the community of the criminal acts that were committed during the G20 demonstrations in June 2010. Not only were police officers attacked and police vehicles set on fire, honest, law-abiding property owners and merchants had their businesses interrupted, their premises vandalized and their property destroyed, damaged or stolen – many times in front of their own eyes. A total of 118 occurrences were reported as a result of G20 violence, including arson, assault, break and enter, 52 mischief to property and one robbery. The trauma caused by such mindless acts of wanton violence on individuals and the community as a whole cannot be measured. No doubt the reputation of Toronto has suffered greatly. The financial cost of all property damage has been estimated at approximately two million dollars (2,000,000.00). The emotional and psychological cost cannot be easily quantified. Toronto will never be the same.

Position of the Parties

[8] The crown is seeking a jail sentence of six to nine months followed by a term of probation. The crown submits that these offences call out for an exemplary sentence to send a message to the community that this kind of destruction and behaviour will not be tolerated. The crown submits that only a real jail sentence will cause individuals like Mr. Coon to pause and think before they follow through with committing this type of mischief.

[9] Defence counsel submits that it is unnecessary to send Mr. Coon to jail. Ms. Mackay submits that a conditional sentence of imprisonment of 12 to 15 months will adequately address deterrent, punitive and rehabilitative objectives especially if house arrest is a term of the conditional sentence and in light of Mr. Coon's rehabilitation since the offences.

Circumstances of the Offender

[10] Tyler Coon is a 19 year old first offender. He turned 18 years old nine days prior to the commission of these offences. He lives with his father in Mississauga. His parents separated when he was a youngster. Mr. Coon's father had full legal custody since 1994 because Mr. Coon's mother was addicted to prescription pain killers and was unable to care for her children. Mr. Coon has had no contact with his mother for the past ten or eleven years.

[11] Mr. Coon has a poor history in the Ontario educational system. The pre-sentence report states that Mr. Coon was expelled from Streetsville Secondary School after he became involved in an altercation with someone who was bullying him. He was then placed in the Fresh Start Program for one year where he met negative peers. He was described as a follower when he was with these friends. His attendance at school since 2008 has been sporadic although, since October 2011, he has been enrolled as a part-time student at Peel Alternative School West where he is taking two courses. He is working towards his Grade 12 diploma which he hopes to have by 2015. Mr. Coon will be taking two courses towards his high school diploma at Humber College commencing that week.

[12] Mr. Coon has worked as a line cook for three years at the restaurant Tucker's Marketplace. He is described by the kitchen manager, Kevin Millington, as, amongst other things, very hard working, always willing to lend a helping hand, and well regarded. The pre-sentence report states that Mr. Coon indicated that he has been saving for restitution and has $500 put aside for this purpose. Ms. Mackay advised that Mr. Coon has saved an additional $500 since the pre-sentence report was prepared and that he now has $1000 to pay immediately towards restitution.

[13] Mr. Coon does not have an issue with alcohol consumption; however, he has used marijuana since grade nine and continues to use marijuana.

[14] The pre-sentence report sets out that Mr. Coon went to the G20 area with his friend, J.M., to watch and not with the intention of causing damage; however, he "got caught up with the wrong crowd".

[15] Defence Counsel provided the court with a two page report from Dr. Julian Gojer, a Forensic Psychiatrist who reports that Mr. Coon has been attending group counselling sessions since June 2011. Dr. Gojer explains that this therapy addresses impulsivity and criminal offending by analyzing faulty thought processes and poor handling of emotional problems. Dr. Gojer does not view Mr. Coon as suffering from any mental illness, personality disorder, drug or alcohol dependence; rather, Dr. Gojer views Mr. Coon's offending behaviour as displaced frustration over the absence of a mother figure in his life and an underlying resentment to authority which stems from a negative perception of being controlled by his father. Dr. Gojer explains that Mr. Coon has been working on both of these issues in his counselling sessions. Dr. Gojer states:

In group Mr. Coon has learned to think his way out of frustrating situations. He recognizes that social order is necessary even though he did not have it in his early childhood. He is deeply remorseful for what he did, recognizes the harm he caused to specific businesses targeted and to how he contributed to the disruption and crown dyscontrol at the time of the offending.

[16] I conclude from Dr. Gojer's report that Mr. Coon is actively working on his personal issues and has clearly moved on from the anger and frustration that informed his actions in June, 2010.

Aggravating Factors

[17] Mr. Coon threw the sign at the pharmacy and a table at the coffee shop window when there were patrons inside thereby jeopardizing the safety of the public. The facts read in during the plea revealed that there were 27 people inside the coffee shop. Mr. Coon's deplorable conduct has become part of the negative image of Toronto during the G20. These images have been captured for all time by the media and individuals who have posted them online. In Mr. Coon's case, his actions were capricious and dangerous; these were reckless acts of mischief that were not intended as any misguided political expression. In Canada the Charter of Rights and Freedoms guarantees everyone, amongst other things, the freedom of expression and the freedom of association. Mr. Coon's opportunistic and reckless actions detracted from the peaceful protesting at the G20 and interfered with the freedoms all Canadians are accorded and enjoy.

Mitigating Factors

[18] Mr. Coon has no youth or criminal record. He is a youthful first offender; the offences were committed when he had just turned 18 years old. He pleaded guilty to the two counts of mischief and thereby took responsibility for his actions and obviated the necessity for the crown to prove the charges against him. The defence provided the court with a hand-written letter from Mr. Coon expressing his deep remorse for his actions and formally apologizing to the community.

[19] The pre-sentence report relates that Mr. Coon has accepted responsibility for the offences. His sister, Michelle Spicer, wrote a letter of support for Mr. Coon. Miss Spicer writes that her brother's behaviour has left him with "feelings of deep regret and disappointment."

[20] Exhibit 3 is a letter from the Salvation Army Thrift Store confirming that Mr. Coon has successfully completed 169.75 hours of voluntary community service. Although the pre-sentence report indicates that Mr. Coon completed these hours, "at the request of his lawyer", his sister writes:

while accepting responsibility for his actions, Tyler has been actively involved in community service, and has directed his energy and refocused his attention towards positive and constructive endeavours.

[21] Mr. Coon spent two days in pre-trial custody which I am confident had a deterrent effect on him. Since Mr. Coon's release from custody, he has been on a judicial interim release with a condition restricting his attendance in the City of Toronto. There have been no findings of breach of the terms of his release.

[22] Having regard to all of the mitigating factors, it is clear that Mr. Coon is well on the road to rehabilitation.

Applicable Sentencing Principles

[23] Mr. Coon attended the G20 protests with J.M., who was 17 years old at the time and therefore was a young person within the meaning of the Youth Criminal Justice Act. Mr. Coon's friend received enhanced extra-judicial sanctions as a result of his actions. Mr. Coon was 18 at the time of the offence and he is to be sentenced as an adult under the Criminal Code.

[24] Section 718 of the Criminal Code provides that the fundamental purpose of sentencing an adult offender is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have specified objectives.

[25] Denunciation is a relevant and important objective in this case. The sentence the court imposes must communicate society's abhorrence of this type of crime and reflect positive societal values. Similarly, general deterrence is relevant and important. The sentence the court imposes must be one likely to deter like-minded persons from engaging in this conduct.

[26] I am grateful for the sentencing casebook provided to me by the crown. The casebook contains many sentencing decisions from offences committed during the G20 which highlight the need for general deterrence and denunciation. In addition, today the crown provided me with an additional two cases dealing with sentencing of offenders involved in the G20 violence. Many of those cases involve the sentencing of offenders with prior criminal records and who engaged in Black Bloc tactics.

[27] In the decision of R v. Fuller, [1995] QJ No 3127 (Mun Ct), Mr. Fuller was sentenced for mischief and theft committed during the Montreal Stanley Cup riot. I adopt the comments of Justice Laliberte at paragraph 48 of the Fuller decision which highlight the importance of denunciation and general deterrence in these cases:

The relative minor offence of damaging and removing a "ONE WAY" sign installed on a pole...becomes more serious when it is committed during a full blown riot. [Mr. Fuller's] actions have a direct impact on the multitude. His acts encourage others to take part in the riot. It contributes to the excitement, fervour, intimidation and dangerousness of the unlawful assembly.

In the instant case, I have considered that Mr. Coon added to the escalating violence on the streets of Toronto during the G20 and it is important that the sentence address denunciation and deterrence.

[28] Mr. Coon's rehabilitation is also an important sentencing objective and must be balanced against the objectives of denunciation and general deterrence. I have also considered the Criminal Code requirement that Mr. Coon should not be deprived of his liberty if less restrictive sanctions may be appropriate: s.718.2(d); and that the court must consider all available sanctions other than imprisonment that are reasonable in the circumstances: s.718.2(e). I have read these sentencing principles in the context of the Ontario Court of Appeal's comments in R v. Priest, [1996] OJ No 3369, at paragraph 17, that the paramount objectives in sentencing a first offender are individual deterrence and rehabilitation.

[29] The defence submits that a conditional sentence of imprisonment will adequately address the applicable principles of sentencing. The defence submits that the statutory pre-requisites for a conditional sentence set out in s.742.1 of the Criminal Code are satisfied. While Mr. Coon could have seriously injured patrons or employees in the coffee shop and the drug store, I agree that mischief is not a serious personal injury offence; there is no minimum term of imprisonment for the offence of mischief; the appropriate sentence is certainly less than two years imprisonment; and, given Mr. Coon's rehabilitative efforts, serving the sentence in the community would not endanger the safety of the community. The issue is whether the court is satisfied that a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code. Focusing on the salient objectives of sentencing in this case, the issue is whether a conditional sentence can provide sufficient denunciation and deterrence.

[30] The crown provided me with the unreported decision of Bigelow, J. of this court in R v. Loughrin, dated February 14, 2011, where Justice Bigelow imposed a six-month conditional sentence followed by nine months of probation for mischief to a police vehicle at the G20. The damage to the police vehicle was approximately $34,000, not all of which was caused by Mr. Loughrin. Similarly to Mr. Coon, Mr. Loughrin had no prior youth court or criminal record; he pleaded guilty, demonstrated remorse, performed community service and was a college student at the time of sentencing.

[31] The crown also provided me with the decision of Tuck-Jackson, J. in R v. Henry, dated September 28, 2011. Mr. Henry was part of the group engaged in "Black Bloc" tactics. As Justice Tuck-Jackson described at paragraph 4:

Dressed in black, from head to foot, his face partially concealed by a black bandana pulled up over the lower half of his face, Mr. Henry along with similarly clad individuals moved amongst the respectful protesters, engaging in the wilful destruction of private property along the way.

[32] Mr. Henry smashed a large, double pane window at a Starbucks Coffee Shop located at 184 Yonge Street, in Toronto. The costs associated with the repair of the windows were more than $26,000. In addition, the coffee shop had to close for most of the June 26-27, 2010 weekend while the repairs were made. The business incurred a loss in sales of approximately $6,000, together with approximately $1,500 which it paid to its employees for missed shifts. Justice Tuck-Jackson said that while it would be unfair to attribute all of this loss solely to Mr. Henry's actions, she noted that he was responsible for part of it. Mr. Henry also smashed a large window at the Bell Mobility store located at 444 Yonge Street in Toronto. There was no statement of costs associated with the Bell Mobility damage.

[33] Mr. Coon is similarly situated to Mr. Henry although Mr. Coon was not part of the Black Bloc group. Mr. Henry was a youthful first offender; he was 21 years old at the time he committed the offences and 22 years old at the time of sentencing. After his release from custody, Mr. Henry began psychological counselling and started medication for depression. He disassociated himself from his radical peer group. He was gainfully employed and made plans to return to school. He completed more than 130 hours of volunteer service at a youth drop-in centre in London, Ontario. Further, for a month during the summer of 2011, Mr. Henry worked at an orphanage in north Botswana and engaged in other volunteer work in the nearby community. He was remorseful for his actions and deeply embarrassed. Justice Tuck-Jackson imposed a 12 month conditional sentence of imprisonment followed by 24 months of probation.

[34] In the case of Mr. Coon, having regard to all the circumstances, weighing the principles of denunciation and deterrence, along with his status as a youthful first offender and his steps towards rehabilitation, I am of the view that the appropriate sentence is a 6 month conditional sentence on each count of mischief, consecutive to one another for the total of a 12 month conditional sentence of imprisonment followed by 18 months of probation to be served concurrently on each count.

Sentencing Order

[35] The terms of the 12 month conditional sentence, in addition to the mandatory conditions set out in s.742.3(1) of the Criminal Code are as follows:

1. Remain in your residence at all times, except:

(a) For purposes of employment;

(b) For purposes of education;

(c) For purposes of attending assessments, counselling or treatment;

(d) For medical emergencies relating to you or an immediate family member;

(e) For purposes of complying with the terms of your conditional sentence order;

(f) For any purposes with prior written permission obtained from your conditional sentence supervisor and such permission is to be carried on your person at all times when outside of your residence.

2. Reside at a residence approved of by your conditional sentence supervisor.

3. Within two weeks, submit yourself to an assessment to determine whether you are a suitable candidate for electronic supervision (ESP). If you are approved for ESP, you are to commence the program immediately and submit yourself to all the conditions set out in Appendix A as required by your conditional sentence supervisor for the duration of the conditional sentence.

4. Maintain employment or attend school or engage in a combination of employment and education.

5. Abstain from attending at 790 Bay Street and 450 Yonge Street in Toronto.

6. Pay restitution in favour of Starbucks Coffee Company in the amount of $500 within 30 days and $100 each month thereafter, and Rexall Drugs in the amount of $500 within 30 days and $100 each month thereafter.

7. Take counselling for anger management and any other counselling or treatment recommended by your conditional sentence supervisor and sign releases in favour of your conditional sentence supervisor for monitoring of your progress.

8. Not to associate, contact or hold any communication directly or indirectly with J.M. or anyone known to you to have a youth or adult record.

Probation Order

Following the completion of the conditional sentence of imprisonment, Mr. Coon will be on probation for 18 months. In addition to the statutory terms set out in s.732.1(2) of the Criminal Code, Mr. Coon will be subject to the following terms:

1. Report within two business days following the conclusion of your conditional sentence of imprisonment to a probation officer and thereafter, when required by your probation officer.

2. Reside at an address approved of by your probation officer.

3. Make reasonable efforts to maintain employment and attend school or engage in a combination of work and school.

4. Abstain from attending at 450 Yonge Street, Toronto and 790 Bay Street, Toronto.

5. Take counselling for anger management and any other counselling or treatment recommended by your probation officer and sign releases in favour of your probation officer for monitoring of your progress.

6. Within the first 12 months of this order, perform 70 hours of community service commencing within 30 days of this order and at a rate of not less than 10 hours per month.

7. Not to associate, contact or hold any communication directly or indirectly with J.M. or anyone known to you to have a youth or adult record.

8. If restitution to Starbucks Coffee Company has not been fully paid during the conditional sentence of imprisonment, make restitution in favour of Starbucks Coffee Company in an amount that does not exceed $5,000, and at a rate of no less than $100 per month. This amount represents the total loss incurred by Starbucks Coffee Company and which forms the subject matter of the restitution order made pursuant to s.738 of the Criminal Code.

9. If restitution to Rexall IDA Drugs has not been fully paid during the conditional sentence of imprisonment, make restitution in favour of Rexall IDA Drug Store in an amount that does not exceed $1,057. That restitution will be paid at a rate of not less than $100 per month. This amount represents the total loss to IDA Drugs and which forms the subject matter of the restitution order made pursuant to s.738 of the Criminal Code.

Restitution Orders

[36] In the event that Mr. Coon is unable to pay the full amount of restitution during his sentence, there will be two stand alone restitution orders pursuant to s.738 of the Criminal Code in the amount of $5,000 in favour of Starbucks Coffee Company and $1,057 in favour of Rexall IDA Drug Store.

[37] With respect to the victim fine surcharge, I have considered that Mr. Coon is working part time and that he is a part time student. I would like Mr. Coon to make restitution to the corporate victims and I will therefore waive the victim fine surcharge.

Released: February 13, 2012

Signed: "Justice Weinper"

APPENDIX A

ELECTRONIC SUPERVISION PROGRAM (ESP) CONDITIONS

CONDITIONAL SENTENCE ORDER

Canada

Province of Ontario 4815 998 G04573-00

Toronto Region Case/File No.

1. You shall report immediately to Probation Office, 4th Floor, 2201 Finch Avenue West, Toronto for the purpose of arranging your enrolment in the Electronic Supervision Program.

2. You shall participate and abide by the rules and regulations of that program as required by your Conditional Sentence Supervisor and/or designated Electronic Supervision Resource Officer for the purpose of monitoring your house arrest, home curfew, residence restriction, etc.

3. You shall be placed on Electronic Supervision for a period of:

☐ _______________________ days/months

☒ the entire length of the Conditional Sentence Order

4. You shall permit the Ministry of Community Safety and Correctional Services staff and/or persons who are authorized by the Ministry of Community Safety and Correctional Services associated with the Electronic Supervision Program to enter your residence for the purpose of setting up, installing, maintaining, repairing or removing the Electronic Supervision Program equipment.

5. You shall make yourself available either by phone or in person as may be required at any time during house arrest/home confinement/curfew and in particular:

☒ You shall answer the phone at any time during house arrest/home confinement/curfew, and

☒ Present yourself to Ministry of Community Safety and Correctional Services staff, police services and/or persons who are authorized by the Ministry of Community Safety and Correctional Services associated with the Electronic Supervision Program at the door of your residence at any time during house arrest/home confinement/curfew for the purpose of confirming your presence and compliance.

6. You shall reside at an address approved of by your Conditional Sentence Supervisor and/or designate and not change your address without prior permission of your Supervisor.

7. You shall permit Ministry of Community Safety and Correctional Services staff and/or police services in your residence during the investigation of any alerts; either technical (i.e. transmitter battery low) or compliance issue (i.e. subject leaving during curfew), generated while on the Electronic Supervision Program.