Case: R. v. Lynch, 2015 BCCA 140

Keywords: Stanley Cup riots, sentencing

Synopsis: In 2011, the Vancouver Canucks loses game seven of the Stanley Cup finals to the Boston Bruins. Mr. Lynch is so distraught and overcome by the loss it appears he feels it necessary to go shopping. Unfortunately the stores are closed and Lynch, along with others goes shopping anyway. Fast-forward a few years, Lynch and two co-accused plead guilty to participating in a riot contrary to s. 65 of the Criminal Code. Lynch is sentenced to 45-day intermittent jail sentence, followed by 12 months of probation and 150 hours of community service. One co-accused receives a 6 month conditional sentence order and 200 hours of community service. The other receives a 12-month conditional discharge and 100 hours of community service.

The sentencing judge stated:

[199] Mr. Lynch, Mr. Hickford [counsel] did everything imaginable in your defence. The problem is that you did too much that even he, in his able submissions, lots of research and hard work, could not get me away from the fact that you had multiple acts of criminal activity that night over a one-and-a-half-hour period.

[200] There was the entry into The Bay, theft, B and E. There was the picking up luggage outside of Mego. That is the possession of stolen property. There was the kicking of the Sterling window, which is not a big deal; that is mischief. Then, there was the hands through the windows at Swimwear to steal the flip-flops. Then, the lie to the police on the SkyTrain. Then the PRIME reports saying on two other occasions, in June and August 2013, they had contact with you at house parties where you were drunk and combative with them. As your counsel pointed out, I cannot put too much weight on this, except if it does show something in terms of the character and rehabilitative. Although your references all express tremendous surprise in your actions that evening, these actions afterwards are indicative that you may not have been as clear, clean and as good a law-abiding citizen, as they believe or your counsel would have me believe. [Emphasis added]

On appeal Lynch argued the sentencing judge erred in emphasizing interactions he had with police in the year following the riot, imposing unduly disparate sentences as between himself and two other accused, and by imposing a sentence not in parity with other accused in similar circumstances. The B.C.C.A. held  the judge erred in principle and allowed the appeal, substituting the 45 days of jail with a conditional sentence order.

Importance: The Supreme Court routinely reminds courts of the highly deferential standard of review for sentence appeals. In R. v. Sipos, 2014 SCC 47 it stated,

On the appeal, the court of appeal is to “consider the fitness of the sentence” and may “on such evidence, if any, as it thinks fit to require or to receive”, vary the sentence or dismiss the appeal: s. 687(1). This allows for appellate review for error in principle and for whether the sentence is demonstrably unfit or manifestly wrong. This is a highly deferential standard of review.

Despite this high standard, appeal courts varying sentences is commonplace and Lynch did well to seek leave to appeal his sentence. The Court dismissed the ground with respect to post-offence conduct. It confirmed it is not an error for a sentencing judge to consider post-offence conduct going to the accused’s character and potential for rehabilitation. It cited R. v. Angelillo, 2006 SCC 55 at para. 29:

Next, the Criminal Code explicitly requires that information or evidence relating to the specific circumstances of the accused be taken into account in determining the terms of the sentence. Thus, the “character of the offender” is one factor to consider before ordering a period of probation (s. 731(1)) or ordering that a sentence be served intermittently (s. 732(1)). As well, where, as in the case at bar, the court must decide under s. 742.1 whether a conditional sentence of imprisonment is appropriate, it must also, in its analysis, decide whether it is satisfied that for the offender to serve the sentence in the community would not endanger the safety of the community. [Emphasis in original.]

The B.C.C.A. added a judge can consider other offences, not to punish the offender for those offences, but to determine a fit sentence based on his or her character, conduct and attitude.

The Court did find however that the sentencing judge erred in principle by concluding that the only appropriate sanction was to impose a term of incarceration. Instead, “having determined that the appropriate range of sentence is a term of imprisonment of less than two years, it was then incumbent on the judge to consider if it was appropriate for Lynch to serve his sentence in the community, pursuant to a conditional sentence order, regardless of whether Lynch’s counsel requested a conditional sentence: see R. v. Proulx, 2000 SCR 5 at para. 127.”

The Court reiterated that it is an error in principle for a judge to not “seriously consider” whether to impose a conditional sentence where the statutory prerequisites are satisfied. Conditional sentences are available (are therefore must be considered) even where there are aggravating circumstances (such as post-offence conduct).

Counsel for the Appellant: Bradley Hickford (Hickford Law Corporation, Victoria)

Counsel for the Respondent: Robert Flannigan (University of Saskatchewan, Saskatoon)

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