Ontario Court of Justice

Old City Hall – Toronto

Between: Her Majesty the Queen

And

Jae Muzzin

E. Nadeau For the Crown A. Tran For the Defendant

Heard: October 18, 2011 and January 17 and February 8, 2012

Reasons for Sentence

MELVYN GREEN, J.:

A. Introduction

[1] This case is one in a series of sentencing decisions flowing from the protests attending the G20 Summit in Toronto in June 2010. Jae Muzzin, the offender, broke one or more large windows at the police headquarters in central Toronto during a protracted political demonstration that included acts of violence and the wanton destruction of property by a small minority of the protestors. He was charged with and has pled guilty to a charge of mischief to property of a value in excess of $5,000 and a second count alleging common nuisance through endangerment of the lives and safety of the public as a result of the window breakage. He is a relatively youthful, pro-social and employed first offender who supports a young family and is genuinely contrite. In all the circumstances, the Crown seeks a sentence of six to eight months' incarceration – or, in the vernacular, "real jail". Defence counsel agrees that a sentence of imprisonment is appropriate but urges that it be served in the community by way of a conditional sentence of one year's duration, followed by a period of probation. The parties agree that a restitution order in the amount of $2,500 (reflecting the damage attributable to the defendant) accompany whatever sentence I impose.

B. Factual Background

(a) The Offences in Context

[2] The G20 Summit attracted a large number of demonstrations and protests. Most were peaceful. Some were not. Those in the latter category included a loose parade of protestors, some masked, who trashed and torched police cars in downtown Toronto and then vandalized a substantial number of commercial enterprises, especially along Queen and then, as the crowds turned north, Yonge Streets in downtown Toronto. Beginning shortly after 1pm, police surveillance photographs repeatedly capture the offender among this diffuse grouping of protestors. They also clearly demonstrate that the offender wore a bicycle helmet, shin pads and a bandana. Unlike many of the other demonstrators (in particular those alleged to be members of the "Black Bloc"), he was dressed in non-black, relatively distinctive clothing and his bandana was only occasionally pulled over the lower half of his face. Further, there is no photographic or other evidence of any unlawful conduct by the defendant until after unruly members of this crowd turned west onto College Street close to 4:30pm on June 26, 2010.

[3] The Headquarters of the Toronto Police Service (TPS) is located on the north side of College, approximately two-thirds of a block west of Yonge. At about 4:30 pm, as documented by filed photographs, the offender purposefully threw two hand-sized pieces of granite through one or more large glass windows that fronted the Toronto Police Museum in the headquarters building. The total cost of replacing the damaged windows at the TPS Headquarters (including those broken by the offender) was approximately $10,000.

[4] About 20 minutes after the attack on the windows, the offender – now shorn of his bandana, shin guards and bicycle helmet – was photographed on the grounds of Queen's Park, a few blocks west of the TPS building. Unlike many other protesters, it does not appear that he changed or reversed his clothing.

[5] The offender was identified following police pleas for assistance from the public. He was contacted by the police in mid-August 2010 and surrendered himself the following day. He has been on a recognizance compelling him to abide by a daily curfew of 10pm to 6am, since his release – a period of more than 18 months. There is no suggestion that the offender has done other than abide by his curfew and all other terms of his release. There is also no evidence that he at any point applied to vary the terms of his bail.

(b) The Offender

[6] The offender was 27 years old at the time of the offence. He had an unremarkable childhood, completed high school and then attended and graduated from the University of Windsor with a degree in computer science. He has since been employed in the IT industry, currently from his home on a "free-lance" basis so that he can more fully participate in the lives and rearing of his very young children.

[7] The offender married in 2006. He and his wife, Lindsay Logsdon, currently have three children (ages 1, 3 and 5); a fourth is expected in late March or early April. They live on a farm in southern Ontario where they raise much of their own food, including chickens and goats. The offender works from home approximately 30 to 40 hours a week as a self-employed software engineer. He dedicates most of the remainder of his waking hours to co-parenting his children and operating the farm. Lindsay, the offender's wife, gave up her position as a teaching assistant to raise and home-school the children. Other than the very modest income she generates as an occasional violin tutor, the family depends entirely on the offender for financial support.

[8] The offender and his wife have long been committed to social justice issues and have participated in many demonstrations. Until the G20 Summit, neither of them had ever acted in a violent fashion. The offender explained that he intervened on several occasions during the protests to protect non-involved persons from the risk of injury, finally succumbing to the passion of the events when, as he put it, "my emotions took over from my rational sense of what was appropriate actions at a protest". The offender, in hindsight, recognizes that his vandalism was shamefully wrong. He now realizes that positive social change comes through public education and he has since assisted in organizing just such programs in the Windsor area near his home.

[9] The offender attributed his participation in the ugly events of June 26, 2010 to a "day long lapse of judgement". The out-of-character thesis is uniformly supported by those contacted by the probation officer who prepared the offender's pre-sentence report and by all of the authors of a number of positive character letters filed with the court on sentencing. These letters, which speak of the offender's commitment to family and community, characterize him as "peaceful and law-abiding" and as a "voice of reason" whose approach to others is always "based on non-violence". The offender's stepfather served as Chairperson of a southern Ontario Police Services Board for a number of years. Applying a broad brush of understatement, he points out in his letter of support that his and his stepson's political views "may not have always perfectly meshed". Nonetheless, he writes that the offender "has always been respectful towards [his] and other people's opinions and world views" and that he is "one of the least violent persons I have ever had the pleasure of knowing".

[10] The offender filed a letter of contrition and addressed the court at length. He accepted "full responsibility" for his actions, repeatedly expressed remorse for his offences, and apologized to his family, to Toronto taxpayers who have had to bear the costs of the protests, and to those peaceful demonstrators who may have been jeopardized or whose message may have been drowned out by the attention paid to his and others' violent conduct. Drawing on the insights he gleaned from reflecting on the events of June 2010 and their negative impact on advancing a progressive agenda, the offender has since consciously tried to deter other activists from engaging in violent conduct. Since last October, he has also begun to make amends by working as a volunteer at the Unemployed Help Centre in Windsor. He has since contributed some 42 volunteer hours, initially as a literacy instructor and, more recently, at the Centre's food bank.

[11] Lindsay Logsdon also addressed the court. She confirmed her husband's non-violent past and commitment to their children, and their shared dedication to community organization and peaceful social justice initiatives. The offender's curfew, she explained, had been particularly hard on the whole family as it precluded him from attending extended family events, including Christmas, away from their farm. She was very supportive of her husband's contributions as father and provider, although his arrest, and the criminal conduct that led to it, had clearly tested their relationship for a time.

C. Analysis

(a) Introduction

[12] Sentencing is an individualized process, more craft than science. A fit sentence is one reached through a fact-driven consideration of the governing principles and objectives and a careful balancing of the aggravating and mitigating circumstances that define the presenting case. As ever, the "fundamental principle" of sentencing is that of proportionality. As set out in s. 718.1 of the Criminal Code: "A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender". Given the nature of the offences before me, and the context in which they occurred, it is clear that deterrence (particularly general deterrence) and denunciation are critical sentencing factors. Rehabilitation and the principles of reparation and restraint are, as always, additional important considerations, particularly where, as here, the accused presents as a youthful first offender. Parity with the results reached in similar cases also forms part of the proper analytical calculus.

(b) Aggravating and Mitigating Circumstances

[13] The conspicuously aggravating factors here are the nature of the two offences and the circumstances in which they occurred. The offender twice threw a projectile through large windows at the TPS Headquarters. This destructive behaviour endangered any persons who may have then been behind the breaking glass; fortunately none were injured. The building the offender vandalized was not a random target. It is hardly a stretch to recognize that the police headquarters was of symbolic value during the course of the G20 protests. Metaphorically, it was the "belly of the beast". It also appears to have been a destination point for the Black Bloc protestors, most of whom then headed a few blocks west to Queen's Park where they discarded their masks and black clothing, and dissolved into the larger crowds.

[14] In short, the offender's criminal conduct was neither inadvertent nor merely impetuous. I am not persuaded that he planned to commit violent acts when he physically joined the more aggressive protesters or that he actively participated in any criminal deeds other than those that bring him before me, but I find he did attend to join cause with the more combative participants in the protest and, if necessary, to confront the police. In this manner, his conduct is distinguishable from – and more morally culpable than – that of the defendant in R. v. Henry, 2011 ONCJ 501. The offender's actions were deliberate, focused, wantonly destructive and, in the end, absent any legal justification. Although apparently animated by principle, I note that the offender has not endeavoured to advance a legal, moral or political excuse for his destructive conduct during the G20. To his credit, he has said that he is prepared to accept whatever sentence I impose.

[15] The aggravating nature of the offender's criminal conduct is obviously exacerbated by their surrounding circumstances. Based on the evidence before me, I find myself in agreement with Justice Feldman's description of the pandemonium caused by the protestors who vandalized parts of Queen and Yonge Streets during the G20. As he wrote in R. v. Cote, 2011 ONCJ 778, at paras. 16 and 18:

It is a matter of common sense to conclude that the common purpose of the Black Bloc and those others who attached themselves to its tactics … as it ran down the street smashing property, caused fear in reasonable people lawfully engaged in protest and disturbed the peace of the city.

…

[T]he mayhem caused by mass vandalism, violence and the air of threatened aggression created public disorder … . The elements of a tumultuous disturbance were evident.

Regardless of his initial intention, I have no doubt that the offender before me aligned himself to those engaging in Black Bloc tactics; he was, both physically and metaphorically, a "fellow traveller". I do not sentence the defendant as if he were found guilty of the offences of others, for his choice of associates, or for causing or participating in a riot, but as in Cote, at para. 19, I do assess "his individual misconduct in the disturbing context that prevailed in downtown Toronto on June 26 and in which he chose to express himself by damaging property".

[16] Like Justice Feldman and the judges of a number of other courts who have addressed similarly situated offenders, I am of the view that, on the facts before me, general deterrence and denunciation mandate a sentence of imprisonment. (See, for one very recent example, R. v. Noltie-Rowley, unrpepd., February 3, 2012, Ont. Sup. Ct. (McMahon J.), esp. at paras. 36-38.) However, the determination of the duration and quality of that sentence is necessarily influenced – and here mitigated – by competing sentencing principles and objectives and, of course, the offender's personal circumstances.

[17] As noted the offender is a relatively youthful man without criminal antecedents. He has a stable marital relationship and three very young children (and an imminent fourth) who depend on his continuing employment. He has worked since graduating from university, both for employers who are grateful for his intelligence and industry and, more recently, from his own home as a free-lance software engineer. He is committed to family, community and social justice, commitments evidenced through the earned support of his surrounding community. He is, I find, sincerely contrite. He recognizes that his criminal misconduct was ill-conceived and counter-productive. He wishes to make amends and, to that end, has already contributed a substantial number of hours to a local charity and has undertaken to continue this volunteerism. His remorse is reflected in his plea of guilty – not entered at the very first opportunity but, in any event, some four months ago and before exercising his right to a preliminary inquiry, thus sparing the Crown having to call any witnesses. He unreservedly accepts full responsibility for his actions. I am satisfied that there is almost no chance of recidivism and, accordingly, no need for specific deterrence in fashioning a fit sentence.

[18] The offender has stable employment, family and community roots. His conduct on June 26, 2010, as characterized by many, was out of character. He has disavowed violence as a means of advancing socially progressive goals. Accordingly, there seems little reason to craft a sentence compelling the offender to attend specific rehabilitative programs. More important here are the principles of restraint and restorative justice. Restitution obviously fits comfortably under the latter rubric, as does that continued community service I intend to include in the offender's ultimate disposition. The immediate effect of the principle of restraint, captured in sub.-ss. 718.2(d) and (e) of the Code, is to limit the length and nature of the custodial disposition to the least restrictive sanction appropriate in the circumstances.

[19] I am also mindful of the curtailment of the offender's liberty for the past year and a half as a result of release conditions that required him to abide by a strict curfew. Onerous bail conditions – particularly where, as here, they persist for a substantial period of time without breach – are rightly treated as "a mitigating factor" on sentencing: R. v. Panday (2007), 2007 ONCA 598, 226 C.C.C. (3d) 349, at para. 28 (Ont. C.A.). (See also, R. v. Ijam (2007), 2007 ONCA 597, 226 C.C.C. 376 (Ont. C.A.), at paras. 32-37, and R. v. Lindsay (2009), 2009 ONCA 532, 245 C.C.C. (3d) 301 (Ont. C.A.), at para. 45.)

(c) The Fit Sentence

[20] Viewed in the abstract, I am confident that a lengthy conditional sentence could well serve as an appropriate sentencing alternative for repentant first offenders who have accepted responsibility for their commission of the kind of offences that ground the case before me. There are no statutory bars to such sentence. Further, I am satisfied that service of the sentence in the community would not endanger that community. In the ordinary course, it may well be that the more punitive facets of a custodial disposition – those that serve the goals of deterrence and denunciation – could readily be achieved through imprisonment in the community subject, of course, to strict mobility constraints. The immediate problem, however, is that the conventional means of effecting punitive objectives through a conditional sentence (that is, by way of a term imposing "house arrest") does no more than lend judicial sanction to the offender's daily routine given that virtually all of his work and social activity is already conducted from his home. Put otherwise, the offender's peculiar circumstances here preclude a conditional sentence from carrying the necessary sentencing freight.

[21] As a result, I conclude that the more punitive demands of the offender's criminal conduct compel a period of true incarceration. Given his personal circumstances and the additionally mitigating effect of his strict bail constraints, I am satisfied that a custodial sentence of 60 days is sufficient to meet the ends of justice in this case. As he is regularly employed and demonstrably compliant with court orders, and as his young and growing family is dependent on his income, that sentence will be served on an intermittent basis. Mr. Muzzin will be taken into custody today and released by 6am on Monday, February 20, 2012. He is then required to attend at whatever custodial facility he is directed by the correctional authorities by 7pm on Friday, February 24th, to be released by 6am on Monday, February 27th, and to re-attend every subsequent Friday and be released on the Monday thereafter at the same hours until such time as the authorities determine his sentence is complete. Given that they arise from the same transaction, the custodial sentence for the two offences is to run concurrently. Out of an abundance of caution, the default position set out in s. 732(3) of the Criminal Code is not to apply.

[22] This concurrent custodial disposition for the two offences is to be followed by one-year terms of probation, again concurrent to each other. The conditions of that probation include the statutory term requiring Mr. Muzzin to keep the peace and be of good behaviour. In addition, he is to make restitution of $2,500 to the benefit of the Toronto Police Service, or its proper assignee, as directed by his probation officer, within the first six months of his probation. He is also to complete 100 hours of community service at a rate of not less than ten hours a month, as directed by his probation officer in consultation with the Unemployed Help Centre in Windsor. He is to report to probation forthwith upon the completion of his term of intermittent custody and thereafter as required by his probation officer until such time as he completes his community service and fully satisfies the restitution required of him. Finally, he is not to possess any weapons as that term is defined in the Criminal Code.

[23] The victim fine surcharge is waived in light of the offender's financial obligations and the additional burden of the restitution order.

D. Conclusion

[24] As just recited, the offender, Jae Muzzin, is sentenced to concurrent custodial sentences of 60 days, to be served on an intermittent basis. Concurrent one-year terms of probation follow, including a term requiring restitution. The victim fine surcharge is waived.

[25] I am grateful to counsel for their assistance throughout these proceedings.

Released on February 17, 2012.

Justice Melvyn Green