Citation: R. v. Horton, 2012 ONCJ 724
ONTARIO COURT OF JUSTICE
HER MAJESTY THE QUEEN
AGAINST
GEORGE HORTON
R E A S O N S F O R S E N T E N C E
BY THE HONOURABLE MADAM JUSTICE B. BROWN
on Friday, September 28th, 2012
at Old City Hall, TORONTO, Ontario
Courtroom 123
APPEARANCES:
E. Jackson, Ms. Counsel for the Crown
R. Clements, Mr. Counsel for George Horton
R E A S O N S F O R S E N T E N C E
BROWN, J. [Orally]:
Mr. George Horton entered pleas of guilt and not guilty in relation to numerous charges in an Information before the Court with respect to June 26th, 2010, which had arisen from a G20 demonstration in the City of Toronto.
At the conclusion of the trial in relation to the charges for which pleas of not guilty had been entered, the Court entered findings of guilt in relation to intimidate a justice system participant and assault police officer. An acquittal was entered with respect to obstruct police.
Counsel put before the Court evidence and case law and made extensive submissions with respect to sentence. The Court now releases its reasons and imposes sentence with respect to the matters before the Court.
THE FACTS:
Circumstances of the offence.
There was an Agreed Statement of Facts put before the Court for the purpose of the charges where guilty pleas were entered as well as to provide context for the evidence heard in the trial. The Agreed Statement of Facts indicated as follows. On June 26th and 27th, and I would add to that because it is an agreed fact that this was in the year 2010, the G20 Summit took place in the City of Toronto. This meeting brought heads of state from many of the world’s largest nations to Toronto for meetings which took place over a two day period. There were massive demonstrations which brought thousands of people onto the streets of Toronto. Some of these people caused damage or attempted to cause damage to property, including Mr. Horton. Through video and photographs taken during the G20, George Horton was identified to be one of the protestors responsible for utilizing certain tactics referred to as “Black Bloc” tactics, i.e. damaging property while wearing a disguise. Mr. Horton had a distinctive appearance which included shoulder length brown hair in a pony tail, prescription glasses, a grey T-shirt, green pants, black boots, a black knapsack, a white handkerchief and a camera. Mr. Horton joined a large group of people outside the Horseshoe Tavern, most of whom were dressed in black clothing with their faces covered. This group moved with a larger group of individuals, most of whom were dressed all in black, to the intersection of Queen Street West and Spadina Avenue where protestors confronted the police. The police were positioned to protect the inner perimeter where the G20 meetings were taking place. The above individuals (a group numbering over 100 people), including Mr. Horton, retraced their steps eastbound on Queen Street and some began to damage businesses and police cars in their path. The group went south on Bay Street, west on King Street, north on Yonge Street, west on College Street to Queen’s Park. Mr. Horton proceeded with this group and later returned to the area of Queen Street West and Spadina Avenue approximately three hours later.
Throughout the course of these events, Mr. Horton was observed to kick the driver’s side door of Toronto Police Services scout car 766 twice, to hit with a wooden stake a CBC van parked at Queen Street and University Avenue, to kick and hit with a wooden stake Toronto Police Services scout car TAV56 parked at King Street and Bay Street and to throw an object at the Tim Horton’s located at Yonge and College Streets. Throughout the above incidents, Mr. Horton had his face covered below his eyes with a white bandana. Mr. Horton returned to the area of Queen Street and Spadina Avenue where numerous individuals had been damaging two abandoned police cars, including scout car 766 referred to above. Mr. Horton was observed milling amongst the crowd, taking photographs of the situation with his own camera. He was observed and videotaped striking a computer monitor in Toronto Police Services scout car 3215 with a wooden stake. Mr. Horton was not masked on that occasion. While Mr. Horton did not cause actual damage to the vehicle he struck despite attempting to do so, he acknowledges as an aggravating factor on sentence that this conduct had the objectively foreseeable effect of encouraging other people to cause damage to those vehicles, I stress that last sentence. Mr. Horton’s photographs were released to the public and he was subsequently identified and arrested.
Upon his arrest on September 28th, 2010,
Mr. Horton was interviewed by officers from the Toronto Police Service. During the course of this interview, Mr. Horton acknowledged wrongdoing and apologized for his actions and to the Toronto Police Service. Mr. Horton was held for bail and released on October 4th, 2010.
Now, returning to my reasons.
There were only two witnesses called in the trial. The Crown called Staff Sergeant Queen, the police officer who was in cruiser 766 when it was kicked by George Horton. The defence called George Horton. There was photograph and video evidence which was also in evidence and was of great assistance to the Court. While Mr. Horton testified that he initially attended the G20 demonstration to visually document it with his camera, it is clear on his own testimony that his intention changed. He attended the march knowing that there would be a break off march called the “Get Off the Fence March”. After things started to get out of hand on Spadina, he made a decision when he put his camera away in his bag. He changed from a photographer to an active demonstrator. He proceeded with marchers in a reverse direction until he came upon a marked police cruiser with flashing lights containing the uniformed police officer. This cruiser is referred to as scout car 766 both in the evidence in this case and also in other cases that are before the court that have been decided by other Courts. This cruiser was in the middle of the street and it had been at the back of the parade which had reversed backwards towards the direction of the stationary cruiser. A riot was breaking out. There were masked offenders starting to attack police cruiser 766. There was jumping on the front windshield which broke. The back driver’s side window was smashed out and the glass fell inside the cruiser where Staff Sergeant Queen was located. Other people surrounded the cruiser. Having brought with him to the parade a bandana which he had previously soaked in vinegar in case teargas would be used by the police, George Horton chose to wear this bandana over his face to hide his facial features before he became involved in this incident. At that point, as indicated, the front windshield of the cruiser had been broken, the back driver’s side window of the cruiser was smashed out. George Horton then joined in, attacking the cruiser, kicking it while the officer tried to protect himself inside. He was alone. That is to say the officer was alone.
The Court made a finding of fact that George Horton attacked the driver’s side of the cruiser with the officer just on the other side of the door, seeing that the officer was inside the cruiser as he kicked at the driver’s door and window of the cruiser. The Court found that this was a considered and intentional action on the part of George Horton after having deliberated about the previous events in the parade on Spadina when Mr. Horton indicated he was upset with the actions of other police officers in the Spadina area. After making those observations, George Horton thought about it and indicated he intended to strike the cruiser by kicking it not once, but twice. The officer was at the time in a vulnerable position, alone, trapped in his cruiser, a mere leg’s length away from George Horton’s boot as he kicked at him. Fortunately, the kicks didn’t result in breaking the driver’s side window. The pane of glass was protecting the police officer, between George Horton and others who were surrounding the vehicle. This glass, fortunately, didn’t break.
The acts of George Horton contributed to the earlier acts of destruction by hooligans trying to destroy the police cruiser as the officer was trapped inside. While George Horton will be punished by this Court only in relation to his actions, it is important to keep in mind that he joined in a path of destruction closing in on the cruiser with the officer vulnerable, alone inside the cruiser. It is also critically important to bear in mind that George Horton knew that there was a police officer inside the car while this was happening and while he was kicking in the area of the officer. There were no other officers in the area at the time to assist the officer in the cruiser. This police officer, Staff Sergeant Queen, had no way out. He was surrounded by hooligans attacking his car and he made for the second time in his police career an officer in distress call, the second time in 22 years. At that point the officer had already been struck once in the head by someone who was not George Horton. The officer thought about driving away, but rather than taking off to protect himself, he chose to remain. He chose to remain because any effort on his part to escape would put at risk other people in the area. What a choice for a police officer to have to make. What a choice for the community to expect a police officer to make in such a dire situation, choosing between preserving his safety and life and protecting the community. The choice Staff Sergeant Queen made was to remain and protect the community.
But that was not all that George Horton did. George Horton seemed to get involved in more acts of hooliganism as he progressed down the streets of Toronto with what had previously been a peaceful demonstration. He saw a CBC van, the property of the media and not the police. Upon seeing this media van which was parked some distance away from where he had attacked Officer Queen in cruiser 766, George Horton hit the CBC van with a wooden stake. This van was at Queen Street and University Avenue in the City of Toronto.
That was not all that he did. George Horton continued on his path of destruction of property in various locations in downtown Toronto, striking out at vehicles as he came upon them, kicking and hitting another police car with a wooden stake, scout car TAV56 which was parked at King Street and Bay Street.
He still was not done his demonstration of destruction and hooliganism. As a final gesture, he continued on to the Yonge and College area where he threw an object at a business location, the local Tim Horton’s outlet. This was a continuous series of acts of hooliganism and disregard for the property of business, the media and the police. For all of these acts, he had his face masked by the bandana he brought with him that day which was soaked in vinegar in case the police used teargas.
He still was not done. As a coup de grace, he returned to the scene of his first crime, scout car 766 from which Staff Sergeant Queen had been rescued. He came across another police car where he struck a computer monitor in the car. He was on a mission. This was not an isolated act of George Horton acting spontaneously and twice kicking cruiser 766, a matter of seconds apart; George Horton engaged in an ongoing considered attack on the police, the media and business property in the downtown area in various locations over an extended distance and over an extended period of time where the G20 parade had travelled. George Horton made a notable contribution to the path of destruction by many that had gone on throughout downtown Toronto, and as well to the images that went on to signify the events in our city which were portrayed in many photographs and videos and played over and over on television and in the news as to what had become of the City of Toronto.
Circumstances of the Offender:
The Court considered ordering a Pre-Sentence Report but counsel for Mr. Horton indicated that he did not want a Pre-Sentence Report and would put before the Court sufficient material with respect to his client that a Pre-Sentence Report would not be necessary. Numerous exhibits have been filed by the defence for the purpose of sentence and the defence has made further submissions to further assist the Court in this regard.
Mr. Horton is 24 years of age. He was 22 years old at the time of the offences. He was raised by his paternal grandparents after he was removed from the care of his mother at one year of age. His mother suffers from schizophrenia. George Horton lived in Peterborough and his mother still lives in Peterborough. Mr. Horton lived with his grandparents until he was 16 years of age. His grandfather died in 2009; and since that time his grandmother has deteriorated, suffering from dementia or Alzheimers. Mr. Horton has an older brother with whom he now has a relationship. Mr. Horton attended high school and has a grade 11 education. He attended the Aboriginal Studies Program at Trent University. Although he took that educational program, he does not have an aboriginal background which is relevant to note for sentence. The Court canvassed this with defence counsel who indicated that situation to the Court.
Mr. Horton has pursued a career in photography. He lives common-law with his girlfriend in Peterborough. He lives on social assistance. Counsel for Mr. Horton has indicated that Mr. Horton suffers from dyslexia. Mr. Horton indicated in his testimony at trial that he suffers from anxiety and his common-law spouse confirms that in her letter to the Court as well. There is no indication in the material before the Court of any problems or dependencies in relation to drugs or alcohol.
Mr. Horton has no prior criminal record.
Numerous letters were filed by the defence for the consideration of sentence which the Court has carefully read and considered. These letters include one from Jennifer Brethour, the common-law spouse of Mr. Horton; Christine Welter, an academic programs coordinator at Trent University; Cynthia McDonald, a family friend (mother of one of his friend’s); Tracey Franks, a family friend; Stuart Morris, a friend; Amanda Lickers, a person who also knows George Horton; and Janis Horton, the aunt of George Horton. The Court has also considered the letter from Dorothy Patterson and Emily Hutten who were associated with ARK –- spelled A-R-K -– in Halifax and have known George Horton. These letters speak positively of George Horton and the Court considers them carefully in putting together a picture of the offender George Horton in relation to the issues before this Court. The Court has also considered Exhibit 4, the Information with respect to George Horton’s portfolio and C.V. as a photographer.
There is an indication of remorse in relation to the guilty pleas that were entered in relation to the charges noted above and as well an apology upon arrest. There was a trial conducted in relation to a number of the charges which included the most serious charges in relation to the portion of the incident of intimidate a justice system participant and the aspect of assaulting a peace officer in relation to the issue of George Horton knowing that the officer was inside the police cruiser at the time of his actions.
Impact on Victim and/or Community:
There was a Victim Impact Statement filed, and the victim Staff Sergeant Queen attended and provided the statement through reading it to the Court. It is clear that this incident had a traumatic impact upon him. Defence counsel agreed that the victim went through a horrendous experience on the day of these events and that he was obviously scared for his life. The Court considers the testimony of Graham Queen in the trial. As the Court noted in the Reasons for Judgment, the Court also noted the demeanour of this police officer which displayed a situation of genuine upset in recalling these events. In the evidence, this officer indicated that at the point of this incident he felt his car rocking, he heard banging noises against the cruiser, whether from kicking or using sticks. He felt glass inside his cruiser from a smashed-in window. There was a male on the windshield of his cruiser and one on the driver’s side which caused him concern. Staff Sergeant Queen had already been struck in the head at that point so he had to take evasive action and he leaned to crouch to the right to try to avoid being struck again; however, he had equipment to the right of him on the front seat of the cruiser which prevented him from moving over to the passenger seat. The officer made a 1033 call for officer in distress, as indicated, for the second time in his lengthy 22 year history as a Toronto police officer.
I am just going to read a brief portion of an excerpt from the Victim Impact Statement which indicates as follows:
“I 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. 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. One of our key roles was to ensure that persons intent on disrupting the parade were not allowed to enter the parade from the rear. This type of activity was prevalent the day prior during a smaller protest march.
I was in charge of six mobile teams of six supervisors and 40 constables. Their mandate was to shadow the parade in vehicles, to monitor the actions of the anarchist groups within the crowd. There were also approximately 20 officers on foot and on bicycle at the rear of the parade.”
Talking about the incident, he stated:
“Some groups had formed circles and were possibly lighting flares. I could see smoke in the crowd. At this time there was a distinct change in the mood of the crowd. Just prior to 3:30 p.m. the entire crowd turned and faced eastward. Groups were assembling and becoming much louder. Myself and Staff Sergeant Hale decided to return to our vehicles to give the crowd more room. At this time the crowd began moving towards the police vehicles.”
He related in the Victim Impact Statement being surrounded by the people outside his vehicle. He indicated they began smashing furiously at the windows of the vehicle.
“I put over the police radio a 1033 distress call. This was the second time in my police career that I felt the need for urgent police assistance.”
And continuing on after relating again what had happened, he states:
“During 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. I had placed my hand on my pistol and was fully prepared to use it if the physical attack had continued.”
[emphasis added]
UNIDENTIFIED VOICE: Get out of the courtroom. Get out of the courtroom
REPORTER’S NOTE: At this time there was a disruption in the courtroom.
THE COURT: Stand down. Sit down. You know what, if you want to remain in the courtroom -- if you’re going to stand up, you’re going to leave the courtroom.
UNIDENTIFIED VOICE: Wow. Justice is really blind, eh?
THE COURT: So either sit down and behave or you’ll be ejected. Is that understood? Okay. Everybody that stood up, just leave. If everyone else wants to behave, they can hear the Court’s judgment.
Sir....
UNIDENTIFIED VOICE: Fucking guys. They think they can just show up and....
THE COURT: You know what, I am speaking. You’re going to leave, too. You’re going to leave, too. If anyone else is going to interrupt me in the middle of imposing reasons...
UNIDENTIFIED VOICE: Go fuck yourself.
THE COURT: ...they’re going to leave.
UNIDENTIFIED VOICE: Fuck the whole court system.
THE COURT: Is there anyone else that would like to leave or is everyone going to chose to behave and listen?
UNIDENTIFIED VOICE: Bye mother fuckers.
THE COURT: All right. After I was so rudely interrupted.
UNIDENTIFIED VOICE: It was the police that did the interruptions.
THE COURT: Excuse me?
UNIDENTIFIED VOICE: It was the police that interrupted you.
THE COURT: No. I am speaking. Now, you’re interrupting me.
VOICE: Stay quiet.
THE COURT: Either remain quiet or you’re out, too.
UNIDENTIFIED VOICE: Yeah, but they just assaulted someone there.
THE COURT: Okay. You know what....
UNIDENTIFIED VOICE: You know what, they just assaulted someone there, the police...
THE COURT: Okay. Okay. Just go.
UNIDENTIFIED VOICE: ...and you don’t even look at it.
THE COURT: The green sweater, the teal shirt, come on, go.
UNIDENTIFIED VOICE: Yeah, I’m leaving this court. I’m leaving this court by myself, alright.
UNIDENTIFIED VOICE: Thank you. Appreciated.
THE COURT: I’m not going to resume until people have left that are to leave.
UNIDENTIFIED VOICE: Yeah, slammed him into the wall. You saw that. Were your eyes closed? Your ears are closed. Your heart is closed. Yeah, I’m going to definitely leave. I have no respect for this. This is ridiculous. There is no such thing as justice. Your career is over.
UNIDENTIFIED VOICE: Assault. I’m pressing charges of assault on this officer. Fuck your system.
THE COURT: All right. Continuing with my reasons for sentence.
“Shortly after the attack, the males moved to the rear of the vehicle and continued smashing the lights. I sat dazed in the vehicle for a short period of time. There seemed to be mass confusion outside the vehicle. It was very loud and people were running in all directions. The door of the vehicle was opened and I exited the vehicle.”
While the Court will impose a sentence in this matter to reflect George Horton’s conduct in the context in which he chose to join in on the G20 demonstration which disintegrated into the G20 riot, it is important to note the extended context of the type and continued pattern of his deliberate acts over an extended time and extended distance. George Horton made a mark at many locations, contributing to damage and destruction as he went along the way. The events of the G20 have been a source of great upset for Torontonians since June of 2010 and have been recorded to remain in the collective memory of the City of Toronto for some time to come.
LEGAL PARAMETERS:
The maximum penalty for the offences before this Court for sentence are as follows: Attempt mischief in relation to damage to marked police vehicle 766, valued at over $5,000, section 430(3) of the Criminal Code, six months jail; face masked with intent to commit indictable offence, section 351(2), 10 years; attempt mischief, attempting to damage the vehicle of the CBC valued over $5,000, section 430(3), six months; assault peace officer, section 270(1), six months; intimidate justice system participant (Graham Queen), section 423.1(3), 14 years.
POSITIONS OF CROWN AND DEFENCE ON SENTENCE:
The Crown submits that the appropriate sentence on the charges would be as follows. Firstly intimidate a justice system participant and assault police, 12 months incarceration and with the sentence imposed on one count and concurrent on the second count; attempt mischief, six months jail, consecutive to a 12 month sentence; masked while intent to commit indictable offence, two months jail consecutive. Bearing in mind the total sentence, the Crown has submitted that the appropriate total sentence is 18 months incarceration. Both the Crown and defence have agreed that a conditional sentence would not be appropriate in this case. The defence submits that the appropriate sentence in this case would be one of eight months jail total incarceration. The Crown also submits that an order should be made for a DNA sample as a primary designated offence for the intimidate justice system participant finding of guilt and the Court would note that assault police is a secondary designated offence under the Criminal Code.
The Crown does not seek any order for restitution for damage. The Crown also seeks a three year probation order. The Crown has submitted that the terms of probation should include terms to have no direct or indirect contact with the victim Staff Sergeant Queen, to not possess any weapons and to not attend at any protest.
MITIGATING AND AGGRAVATING CIRCUMSTANCES:
Mitigating:
As noted herein, guilty pleas were entered in relation to three of the counts before the Court. Mr. Horton also apologized upon arrest. The Court would also note the relative youth of Mr. Horton, being 22 years of age at the time of the offences and 24 years of age at the time of sentence.
Aggravating:
The Court considers the continuing pattern of this participation in the offences. Unlike many other cases where the Courts in Toronto have imposed sentences for an isolated act, George Horton participated in a way where he committed multiple crimes deliberately over a lengthy distance and time. The defence and Crown have agreed and stated to the Court that the various acts of George Horton set out in the Agreed Statement of Facts, which go beyond and are in addition to the offences for which he has been found guilty, should also be considered for the purpose of sentence for the offences where he has been found guilty.
SENTENCING PRINCIPLES:
As held by the Court of Appeal for Ontario in R. v. Catenacci, 2012 ONCA 187, another case involving the G20 demonstration, general deterrence and denunciation are the paramount considerations. Rehabilitation and personal circumstances are of “much reduced significance” in this type of a case. With the exception of the restitution order, the Court upheld the sentence imposed by Justice Weinper of the Ontario Court of Justice in that case.
In Canada we are proud of our free and democratic society. We can engage in peaceful protests and express ourselves politically. In section 2 of our Charter of Rights and Freedoms, we have many fundamental freedoms which are protected. We have freedom of thought and belief, we have freedom of opinions and expressions. We have the freedom to peacefully assemble and freedom to associate. Those are fundamental freedoms which we value in our Canadian society.
What happened on June 26th, 2010, is the transformation of this wonderful opportunity for people to express their beliefs and opinions, to assemble and associate being used as a cover for transforming the gathering into a series of acts by hooligans in a rampage through the streets of Toronto which left a path of destruction along the way.
The Supreme Court of Canada has stated, in R. v. C.A.M. 1996 230 (SCC), [1996] 1 SCR 500, that the objective of denunciation mandates a sentence that should communicate society’s condemnation of a particular offender’s conduct. It represents a symbolic collective statement that the conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive law. Society, through the courts, must show abhorrence for particular types of crime. The only way the courts can show this is by the sentence passed.
General deterrence and denunciation drive the message that people must understand that they cannot act the way George Horton chose to demonstrate his frustration and his thoughts in the G20 event. People cannot attack a cruiser with a vulnerable officer inside with the intent to intimidate the police from carrying out their duties. The Victim Impact Statement speaks loudly of the genuine fear this veteran of the police force felt as he was under attack. He was part of a force of police officers, supervising many of them, and who were there to ensure that the peaceful protest would remain peaceful. People cannot assault police officers called upon to perform the task of preserving peace in a previously peaceful demonstration or march just to intimidate them. People cannot damage the property of business, the media and the police who just happen to be in the area. Courts will send a message this will not be condoned in Canada and that people who choose to act in that fashion will be punished appropriately. In Canada we value free speech, not hooligans...
CLERK OF THE COURT: Stay quiet, please.
THE COURT: ...and we will act to send that message to those who choose to act as hooligans.
People who saw the acts of the hooligans of the G20 watched in horror and outrage as they saw this happen on our city streets. There was a sense of shock that permeated throughout the city the day that this happened and the days that followed. It was an affront to our sense of democracy and free speech to see a peaceful opportunity to voice opinions and views transformed into a rampage and a riot throughout downtown Toronto. It was an image that we will not soon forget.
George Horton will be punished for his acts in keeping with these paramount principles of general deterrence and denunciation as I have indicated, but the Court will also bear in mind to a lesser extent, given the Court of Appeal guidance in this regard, the principle of rehabilitation. Mr. Horton was 22 at the time of his offences and is now 24 years old. He has no prior criminal record. The Court also considers the principles of judicial restraint and totality.
Many cases have been put before the Court for its consideration. As in many situations of reviewing other sentences for other offenders and other offences, there is often no case which can provide a guideline with similar features. That is the situation in this case as well. The Court has considered the various sentences imposed by judges for offences arising from the G20 events. In R. v. Catenacci, 2012 ONCA 187, May 13th, 2011, Justice Weinper, again it went to the Court of Appeal, a 17-month jail sentence was imposed with a concurrent 60 day jail sentence for breach of probation for an offender with a criminal record who entered a guilty plea for a single act, that being a charge of arson in relation to putting a lit piece of paper into cruiser 766 which had caught fire at some point after Staff Sergeant Queen was assisted by other officers in escaping from the cruiser. In R. v. Mdlongwa, July 21st, 2011, Justice Shamai imposed a sentence of 21 months jail, less credit for pre-sentence custody for the other offender who lit another piece of paper which was set on fire and put in cruiser 766 some time after the removal of Staff Sergeant Queen from the vehicle. That offender had a prior entry on a criminal record for impaired driving and, therefore, had a prior criminal record, and did not enter a guilty plea.
In R. v. Coté, [2011] O.J. No. 5966, Justice Feldman imposed a sentence of six months jail following a guilty plea to two counts of mischief in relation to willful damage of two police cars, including hitting one with a wooden stick and kicking in the window of another. The offender was 19 years of age and on probation for an offence of uttering threats where he had received a conditional discharge.
The Court also considers the case of R. v. Noltie-Rowley, a decision of Justice McMahon of the Superior Court, February 3rd, 2012, where the offender pled guilty to having his face masked, willful damage to the Winners store and endangering public safety by smashing the glass windows. People were inside the store when this happened. The offender had brought black clothing, consistent with the apparel worn by members of the Black Bloc. The offender was 21 years old when he committed these acts and had done volunteer work and had a lot of support in his Guelph community. He entered the guilty plea in Superior Court shortly after a preliminary hearing. He had a prior youth record for two counts of drug possession and an attempt theft as an adult. A six-month jail term was imposed.
The case of R. v. Henry, [2011] O.J. No. 4328, Justice Tuck-Jackson dealt with an offender who was 21 years old at the time of the mischief offence and masked while committing the offence but had no prior criminal record. He also had performed a great deal of community service work. The offences were far less serious than those that are before this Court today and for that reason the case is not as helpful as it would otherwise be with respect to this particular case. A strict 12 month conditional sentence was imposed with a requirement that 240 hours of community service be performed.
For other reasons, R. v. Rainville, December 14th, 2011, Justice Hogan dealt with a first offender of aboriginal background who was involved in damaging three cruisers. There are also different considerations that prevail for individuals with aboriginal backgrounds as set out in the Criminal Code and the case law. During his bail, he was required to comply with a very strict bail requiring him to reside at an aboriginal residence for treatment and abide by all of its strict conditions for a notable period of time. In that case, a conditional sentence was imposed.
In R. v. Coon, [2012] O.J. No. 645, Justice Weinper imposed a 12 month conditional sentence for a first offender who pled guilty to two counts of mischief while masked during the G20 who had just turned 18 before the events and had broken windows of two businesses.
In R. v. Muzzin, [2012] O.J. No. 750, Justice Green imposed a sentence on an offender who broke windows at the police station and committed the offence of nuisance and had entered guilty pleas. That offender was 27 years of age, had a university education, was employed in the IT business, was married, had three young children and another child soon to be born. He lived with his family on a farm where they raised their food, including chickens and goats. A jail sentence of 60 days intermittent was imposed in that case.
The Court has also considered the cases arising from the Vancouver NHL riot, including R. v. Dickinson, 2012 BCPC 40, [2012] B.C.J. No. 314, where a sentence of 17 months jail less time served was imposed for an offender with a criminal record who entered pleas of guilt for his role in the riot which included participation in the destruction of two unmarked police vehicles.
The Court has also considered R. v. Alviar, 2012 BCPC 181, [2012] B.C.J. No. 1179, R. v. Yates¸ 2012 BCPC 250, [2012] B.C.J. No. 1553, and R. v. Snelgrove, 2012 BCPC 235, [2012] B.C.J. No. 1448.
The Court has also considered numerous other cases with respect to similar types of demonstrations or gatherings of people where vandalism and damage took place which are before the Court in case books and which I am not specifically naming at this point in time.
The Court also considers statutory provisions in the Criminal Code. These include the principle that a sentence should be imposed similar to sentences for similar offenders for similar offences in similar circumstances as articulated in section 718.2(b) of the Code. Secondly, the Court must bear in mind the principle of totality, that if there are consecutive sentences, the combined sentences should not be unduly long or harsh, 718.2(c). As well, there is the principle which is important of judicial restraint, that an offender is not to be deprived of liberty if there are less restrictive sanctions that may be appropriate in the circumstances, section 718.2(d).
REASONS:
Both parties are agreed that a jail term is appropriate as a sentence for Mr. Horton for these offences. Clearly a conditional sentence would not be appropriate and both parties agree in that regard. One of the key differences in the submissions supporting the basis for the penalty submitted by the parties and the difference between them arises from their differences and their interpretations of the views of the actions. While the defence agrees that the Court has made a finding that the officer was in his marked police cruiser wearing a police uniform and Mr. Horton knew that when he struck out at the vehicle, the defence takes the position that this is at the low end of the spectrum of seriousness of offences for intimidation of a justice system participant. On the other hand, the Crown argues that it is much higher up the spectrum of seriousness essentially because Mr. Horton struck out and attacked this officer in his police cruiser, actions clearly attacking him for the sole reason that he was visibly a justice system participant, being a police officer in the context of the G20 demonstration.
With respect to the offence of intimidation of a justice system participant which is clearly the most serious offence before this Court, the Court would note categorically that this was not a minor offence. The defence has made an argument that the charge of assault police should be stayed based upon the principle in Kienapple. The Court finds that this is not a Kienapple situation. The offence of assault police involves, as set out in greater detail in the Reasons for Judgment, the act of kicking the police cruiser with the staff sergeant inside it on the interior side of the driver’s door while the exterior of the door was kicked, seeing the officer there in that position. The offence of intimidate a justice system participant, however, requires an additional element of the offence insofar as creating a state of fear in the officer which this Court has found was created by the actions of George Horton. The offence of assault police does not require the same element. It also requires that the act be in order to impede the officer in the performance of his duties, which was clearly done in this case as the officer would be unable to perform his duties as a result of George Horton’s actions which took place in the context of the actions of others at the same time. This is not a Kienapple situation. Having said that, as will be noted below, the Court is of the view that the sentence on the assault police should be a concurrent sentence to the intimidate a justice system participant offence.
Staff Sergeant Queen was attacked by Mr. Horton going after and striking at him in his cruiser for the sole reason that he was wearing a police uniform in a marked police cruiser. On his own evidence Mr. Horton was focussed on the fact that this was a police vehicle and he was upset by events he had seen earlier on Spadina during an exchange between demonstrators and other police officers. It is absolutely clear that Staff Sergeant Queen had nothing to do with these events on Spadina and was in a different area when this had gone on, as would have been known by the defendant. Mr. Horton struck at this police officer who was on the scene to preserve the peace at the rear of the parade during what had earlier been a peaceful demonstration and protest. He only went after the victim because he was a police officer wearing a uniform carrying out that role. This action was a visible attack on an officer who was charged with the duty of trying to maintain or, at this point, regain peace on the streets of Toronto. The huge irony is that while this staff sergeant was on scene to preserve the peace for this initially peaceful demonstration, he found himself the subject of attack by various people who surrounded him, one of them was George Horton. George Horton joined in the attack on the cruiser. In this traumatic and most difficult situation of various people attacking the cruiser, Staff Sergeant Queen found himself under personal attack, surrounded by what the Court would find to be numerous people, who included Mr. Horton, in disguise, requiring him to make a distress call. He tried to take evasive action to protect himself. The officer contemplated leaving the scene of the attack but sacrificed his own personal safety by choosing to remain on the scene. He did not drive away because he was concerned that other people in the immediate area of the cruiser could be hurt if he moved the cruiser by driving it. This is not the type of sacrifice that people expect police officers to make when they go along the streets of Toronto to protect our community, yet this is what Staff Sergeant Queen was prepared to do and did do as he was under attack with no other officers nearby to help him. He was intimidated in the most serious and dramatic way possible, feeling his life was in danger but yet choosing a course of action to protect the public over his own self preservation.
It is a very serious offence when someone intimidates a justice system participant called upon to preserve the peace for a peaceful demonstration and their actions contribute to the situation in this case.
The next most serious offence this Court finds is one of being masked with intent to commit an indictable offence. The act of covering his face created a situation where George Horton was less likely to ever be caught, to ever be identified, to ever have to face any punishment for his actions. He brought his bandana with him to the G20 demonstration. He pulled it up over his face covering his identity for most of the acts for which he engaged in. When an offender does this, he is mindful of the steps which he is taking to make detection unlikely. It was only through the many images which were received by the police that he had to account for his actions after being identified. Without this situation, his actions could have gone unnoticed as one of thousands attending and participating in a riot of mass destruction, unnamed masked hooligans who could evade being identified and prosecuted. This is an offence which must be punished appropriately.
The acts of mischief against property of the police and the CBC, a government media van, are also in the course of the ongoing action of George Horton, contributing to the scenario of the overall penalty, the jail sentence, which must be imposed to send a message to George Horton and to everyone that this will not be tolerated by the Courts. Due to his youth and lack of prior criminal record, the Court imposes the shortest sentence it can to still send the necessary message of general deterrence and denunciation that the Court and Canada will not tolerate these kinds of actions.
While the Court could properly impose discrete sentences for all of the separate offences which are the discrete counts where findings of guilt have been entered by this Court, the Court is mindful of the principle of totality. Separate consecutive sentences for each of the offences, while proper, and I note that they were separated by some period of time and distance, would most likely give rise to a higher jail sentence than the Court would be comfortable imposing given the principle of restraint and the youth of the offender who has no criminal record.
Accordingly, the Court is of the view that the proper sentence should be a global sentence which is driven by the Court’s consideration of all of the sentencing principles and facts noted above. The Court takes into account the fact that Mr. Horton has served a period of eight days pre-sentence custody, which I would ask be noted on the Information, and the Court takes that into account on a one-for-one basis as eight days jail which he has already served in relation to credit for punishment for these offences. Bearing all of that in mind, the Court sentences Mr. Horton to a period of ten months incarceration on the intimidation of a justice system participant, the Court sentences him to ten months concurrent on the assault police officer charge, to two months concurrent on the masked with intent to commit the indictable offence, to two months concurrent on each of the mischief counts.
The Court notes that he is not currently working so the Court waives the victim fine surcharge.
It is appropriate, and the Court imposes a section 109 weapons prohibition order, and that will be in place for a ten year period. The Court imposes that in relation to the finding of guilt of intimidate a justice system participant.
The Court also considers the ancillary order with respect to a DNA order. In that regard, the Court considers the provisions of section 487.04 of the Criminal Code, and in that regard, the fact that the offence of intimidation of a justice system participant is a primary designated offence. The Court also considers the provisions of section 487.051(2), and the Court has considered the factor as to whether or not the person has established that the impact of such an order on their privacy and security of person would be grossly disproportionate to the public interest and the protection of society and the proper administration of justice to be achieved through the early detection, arrest and conviction of offenders. The Court considers the circumstances of this offence, including the fact that the offender was masked while committing a large portion of these offences, and makes an order in relation to intimidate justice system participant, a primary designated offence, that a DNA sample will be taken. The Court would note in passing that it would be a secondary sample if the Court were to find guilty and be imposing a sentence with respect to assault peace officer, but I am not doing that because I have indicated that I am imposing it in relation to intimidate a justice system participant.
The final issue that remains is with respect to a period of probation to follow the period of incarceration. The Crown has requested a three year period of probation with mandatory and optional conditions. The defence has indicated that a three year period is not necessary and takes issue with respect to a request for a term by the Crown that during the term of probation Mr. Horton not attend at any protest. The defence, somewhat ironically I would add, raises section 2 of the Charter in terms of the Court’s consideration and the fundamental freedoms that our community is given through section 2 -- to speak their beliefs, to have opinions, to associate and to, in effect, attend at protests -- for an argument that it would not be appropriate to impose as a condition of probation a prohibition against Mr. Horton attending any protest. In that regard, I have considered the judgment of the Supreme Court of Canada in R. v. Proulx, 2000 SCC 5, [2000] S.C.J. No. 6, in the year 2000. That is a case that deals specifically with the imposition of a conditional sentence rather than probation, but in any event did indicate its thoughts with respect to probation and indicates as well the fact that a probation term can be imposed for protecting society and for facilitating the offender’s successful reintegration into the community. Although I have reviewed this case and paragraphs 32 to 34, I have also pulled another case which is actually more directly on point. It is another Supreme Court of Canada case, R. v. Shoker, 2006 SCC 44, [2006] S.C.J. No. 44, the majority judgment authored by Justice Charron with respect to the appropriateness of probation conditions imposed by a Court as part of sentence. In that regard, I would note that Justice Charron indicated, speaking for the Court, “The residual power under section 732.1(3)(h) speaks of other reasonable conditions imposed for protecting society and for facilitating the offender’s successful re-integration into the community.” She notes, at paragraph 14, “The residual power to craft individual conditions of probation is very broad. It constitutes an important sentencing tool. The purpose and principles of sentencing set out in section 718 to 718.2 of the Criminal Code make it clear that sentencing is an individualized process that must take into account both the circumstances of the offence and of the offender.” In that regard after having reviewed the law and considered the positions of both parties, there are some positive indications with respect to Mr. Horton, and the Court will impose a two year term of probation. There will be the mandatory terms which include keeping the peace and being of good behaviour. There will also be optional terms which include reporting to a probation officer within two days after release from custody and reporting thereafter as required. There will be a term that he have no direct or indirect contact with Graham Queen, the victim in this matter. There will be a term that he not possess any weapons as defined by the Criminal Code. There will be a term that he not obtain or apply for a firearm’s acquisition certificate or a gun licence. There will be a term that he seek employment or take post-secondary education or job counselling as may be directed by the probation officer. There will be a term that he take counselling for anger management. There will be a term that he sign releases as may be required by the probation officer to monitor these terms.
Now, with respect to the term that is in issue regarding not being permitted to attend any protest, the Court has very carefully considered that term. In our free and democratic society people have the ability and the freedom to speak out and express their beliefs. However, I am dealing with the sentence in relation to an offender who chose to do something other than that at the G20 demonstration. Accordingly, bearing in mind the principles of the Criminal Code as they would relate to the appropriateness of conditions of optional probation terms, the Court will add the following condition: not to attend at any protest with any mask, bandana or any item that could be worn to cover his facial identity. In addition, not to attend at any protest with any stick, any rock, or any object that could be used as a weapon. To clarify, he may be permitted to attend a protest with a camera but not any of the other items noted above. He shall not conceal his facial appearance at any protest.
Mr. Horton, do you understand those terms of probation?
MR. HORTON: Ah, yes.
THE COURT: Can you comply with them?
MR. HORTON: Umm, yes.
THE COURT: If you do not, you could be charged with a criminal offence of failure to comply with your probation order and you could be brought before the Court. If found guilty, a sentence could be imposed which could include jail.
MR. HORTON: I understand.
THE COURT: All right.
And with respect to the other counts?
MS. JACKSON: Any remaining counts should be marked withdrawn, please.
THE COURT: All right. Thank you.
MR. HORTON: Thank you for –- I’m sorry for my friends calling you....
THIS IS TO CERTIFY THAT
the foregoing is a true
and accurate transcript
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best of my skill and ability.
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