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R. v. Barahona Villeda et al, 2014 BCPC 61 (CanLII)

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Date:

2014-04-14

File number:

223606-1-V

Citation:

R. v. Barahona Villeda et al, 2014 BCPC 61 (CanLII), <https://canlii.ca/t/g6hzr>, retrieved on 2024-04-26

Citation: R. v. Barahona Villeda et al Date: 20140414

2014 BCPC 0061 File No: 223606-1-V

Registry: Vancouver

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

REGINA

CARLOS BARAHONA VILLEDA

IOANNIS GEORGE JOHN KANGLES

DAVID GERALD LEONATI, and

MICHAEL JOHN STEWART MACDONALD

REASONS FOR JUDGMENT

OF THE

HONOURABLE JUDGE G. RIDEOUT

Counsel for the Crown: R. Flannigan, T. Laker

Counsel for Mr. Villeda: D. J. Gable

Counsel for Mr. Kangles: D. Kontou

Counsel for Mr. Leonati: J.A. Percival

Counsel for Mr. MacDonald: C.L. Corriveau

Place of Hearing: Vancouver, B.C.

Dates of Hearing: October 11, 23-25, 28-30, 2013

February 3-6, 11-14, 17, 19-21, 24-25, 27-28, 2014

Date of Judgment: April 14, 2014

A Corrigendum was released by the Court on April 16, 2014. The corrections have been made to the text and the Corrigendum is appended to this document.

INTRODUCTION

[1] On June 15, 2011, the Vancouver Canucks hockey team played game seven (the “Game”) of the Stanley Cup finals against the Boston Bruins in the City of Vancouver. The Vancouver Canucks lost the game. For reasons which many cannot comprehend, a riot broke out in the downtown core following the Game resulting in property damage, looting, arson and physical violence.

[2] Hundreds, if not thousands, of people who were in the core of the city during the rioting used personal cell phones and other electronic devices (“personal devices”) to collect images of the riot. Many of those images were instantly transmitted around the world using various social networks, including YouTube. Many of the images were also forwarded to the Vancouver Police Department by citizens who were present during the riot.

[3] The images collected on personal devices became a powerful crime-fighting tool used by the Vancouver Police Department to jump start their investigation into identifying individuals who participated in the riot. The use of images collected on personal devices identified Carlos Hernan Barahona Villeda (“Barahona”), Ioannis George John Kangles (“Kangles”), David Gerald Leonati (“Leonati”) and Michael John Stewart MacDonald (“MacDonald”) as suspected participants in the riot.

[4] Over a period of time, a library of image information was collected by the Vancouver Police Department, including still and video images from personal devices and security camera footage, which allegedly implicated the four suspects in the riot. This image information underpinned the evidentiary foundation for the laying of charges against the four suspects.

[5] Barahona, Kangles, Leonati and MacDonald have been charged with participating in a riot as well as the assault of Robert James Mackay (“Mackay”). In addition, MacDonald has been charged with committing mischief by damaging a window at The Hudson’s Bay Company (the “Bay”) department store.

[6] The four accused have denied any criminal wrongdoing and have asserted that the Crown has failed to establish guilt beyond a reasonable doubt.

OVERVIEW OF THE RIOT

[7] Admissions of Fact in relation to the riot generally were filed at the commencement of the trial. Those Admissions assist in giving context to the scope of the riot. While I do not intend to refer to all of the Admissions, some reference is helpful:

On June 15, 2011, there were approximately 155,000 people in the downtown core during the Game at various venues including Rogers Arena, public viewing locations, Queen Elizabeth Theatre, private residences, restaurants and bars.

The main public viewing site was situated around a public library bordered by West Georgia Street to the north, Robson Street to the south, Hamilton Street to the east and Homer Street to the west (the “Live Site”)…..

There were approximately 55,000 people watching the Game at the Live Site.

Television coverage of the game started at 5 PM. The Boston Bruins won the game at approximately 7 PM with the final score of 4-0.

Two motor vehicles were parked in front of the Canada Post building in the Live Site during the Game. These vehicles were a silver Nissan Versa (the “Versa”), and a GMC Sierra (the “Sierra”).

At approximately 7:42 PM a number of rioters overturned the Versa on to its hood. The Versa was damaged and ultimately set on fire and destroyed shortly before 8 PM.

Minutes before the Versa was set on fire, rioters began to attack the GMC. After the Versa was set on fire, police officers forced the rioters away from the Versa and ultimately away from the GMC. Fire fighters attended and put out the fire.

As these vehicles were being destroyed, one block away, rioters confronted the police on Homer Street just north of West Georgia Street. Rioters damaged the Canada Post building and the Bank of Montreal and threw projectiles at the police …

The riot started at this location and spread throughout the downtown core of Vancouver …

As the crowd occupied West Georgia Street and the surrounding areas, multiple commercial premises windows were broken and the contents of the premises looted. Vehicles were vandalized, broken into and set on fire. Crowds of people faced off against the police and projectiles were thrown at the police. Numerous police officers and civilians were assaulted. An atmosphere of lawlessness, violence and destruction quickly consumed the downtown core of Vancouver.

[8] In relation to specific locations where rioting was taking place, Admissions of Fact were also filed. In part, those Admissions establish the following facts:

At approximately 8:30 PM, 911 began receiving phone calls from people who stated that the Bay was being damaged by large groups of people in the 600 block of West Georgia Street, and the 600 block of Seymour Street. Windows were reportedly being broken.

Several people from the crowd started throwing objects, including newspaper boxes, City of Vancouver signs and hockey sticks at the Bay windows, ultimately shattering them. At approximately 9 PM, people began entering the Bay through these broken windows and stealing merchandise.

At this time, there were still 17 to 18 employees within the store in addition to some meaning customers. All of the employees and remaining customers went to the 7th floor of the building for their safety.

The Bay suffered extensive damage as a result of the riot. All of the ground floor windows and some second floor windows of the Bay were broken. There was damage to the outside canopy. There was a considerable amount of smoke and water damage to the ground floor and sub floors. There was significant merchandise loss, and construction repair. The financial loss to the Bay was $1,346,090.20 this loss is comprised of $431,730.67 in property stolen during the looting, $856,387.24 in physical damage to merchandise and the store itself, and $57,972.29 in other riot related costs (such as trauma counseling for employees).

During the riot, three vehicles parked beside the Bay along the west curb lane of the 600 block of Seymour Street were destroyed …

The destruction of the vehicles was witnessed by hundreds of observers in the crowd.

[9] The accused admitted the continuity, accuracy and admissibility of all photographs and video evidence depicting events during the riot.

[10] The accused have admitted that each of them was in downtown Vancouver during the riot. Clothing attire for the accused was also admitted.

[11] The accused further admitted that image depictions accurately placed each of them at a location or locations in the downtown core of the Vancouver were accurate.

THE CASE FOR THE CROWN

[12] Photographic and videographic evidence significantly underpinned the case for the Crown. In particular, a YouTube video that depicted the alleged assault of Mackay (3a, Exhibit 6-7, Master clip) went viral around the world on the Internet after the Game, was a key piece of the Crown’s case.

[13] In addition, the Crown called four witnesses who were present at the riot. Staff Sergeant Lee Patterson (the “Staff Sergeant”) was a senior police officer who was on duty at the Game as a Crowd Control Tactical Advisor. Mackay was a civilian who became involved with rioters outside of the Bay when the Bay was being vandalized and looted. Peter Fiamengo (“Fiamengo”) was a loss prevention officer who was on duty at the Bay when it was being vandalized and looted by rioters. Dean Seskin (“Seskin”) was a civilian who was downtown during at the riot and made observations outside of the Bay when Mackay became involved with rioters.

Staff Sergeant

[14] The Staff Sergeant has an impressive policing resume. He commenced duties as a policeman in the United Kingdom in 1992 and joined the Vancouver Police Department in 2002. He has extensive training in relation to public order and specifically has received special training in relation to crowd control in a riot.

[15] The Staff Sergeant was part of the chain of command in the area north of Granville Street during the Game. He testified that it was his impression as early as 4 PM on Game day that the number of people in the downtown core and their state of intoxication made him “very nervous”.

[16] It was his further opinion that in the mid to late afternoon there was a collective air of excitement in the crowd. He noticed that the crowd was changing as there was an influx of young people while family groups were leaving the downtown core.

[17] At or around 4:30 PM, the Staff Sergeant testified that a senior police officer ordered that a full squad of 70 police officers under his command were to be moved to the Live Site. He testified that this loss of a full squad had a significant impact on his ability to deploy officers in the Granville Street area.

[18] Prior to the Game ending, the Staff Sergeant walked down toward the Live Site but was unable to access it due to the size of the crowd. The Staff Sergeant testified that he received word that a police service car was on fire at the Live Site at approximately 7 PM. He described this fire as a, “textbook trigger incident for a riot”.

[19] Over approximately the next hour, crowds of people were flowing toward the Live Site. The Staff Sergeant testified that the crowd posed a danger in relation to police officer safety. Based upon his experience and information he had received, the Staff Sergeant was of the opinion that a riot was underway.

[20] The Staff Sergeant testified that police members at the Live Site area decided that it was necessary to try to disperse the crowd by directing them away from the Live Site and toward exit side streets intersecting West Georgia Street. These intersecting streets included Homer Street, Richards Street, Seymour Street and Granville Street. West Georgia Street, Seymour Street and Granville Street are adjacent to the Bay.

[21] The Staff Sergeant denied that this tactic was an attempt to “corral” the crowd, which, in his opinion, would have been a dangerous tactic. A Long Range Acoustic Device audibly directing the crowd to disperse, along with “flash bang” devices, tear gas and a horse-mounted squad were utilized to try to keep the crowd moving out of the downtown core.

[22] The Staff Sergeant testified that many members of the crowd were highly intoxicated and out of control. It was his opinion that the crowd displayed a “contagion of excitement” as the riot ramped up. He further testified that it was difficult at times to determine people who were caught up in the riot zone but were not participants in the riot and people who were participants in the riot.

Fiamengo

[23] Fiamengo was on duty as a loss prevention officer at the Bay on June 15, 2011. He commenced his shift at 2:30 PM. He testified that when he commenced his shift there were approximately 70 other employees on duty at the Bay.

[24] Prior to the Game, he described the Bay as being “busy” and noted that patrons at the store seemed to be in good spirits. During the course of the third period, he observed a large number of people walking westbound on West Georgia Street and testified that they seemed disappointed.

[25] Fiamengo testified crowds outside of the Bay rapidly increased in size and aggression and some members of the crowd began to kick the windows of the Bay along West Georgia Street. At that time, the manager on duty directed that all doors were to be locked as there were concerns that there was the potential for trouble.

[26] Fiamengo testified that around 8 PM, a newspaper box was thrown through one of the Bay windows along Seymour Street. He also heard other windows being broken and when he looked out onto Seymour Street, he described the crowd as frenzied. Cars parked along Seymour Street were being damaged and he saw fights breaking out.

[27] Fiamengo also recalled that as he went through the main floor of the store he saw holes in the windows. He saw a pole being pushed through a window. He next observed that some people were reaching through the broken windows to steal Bay property. It then escalated to a point that people in the crowd were entering and actively looting the store.

[28] Employees and customers who were in the store at the time of the lock down were moved to an upper floor for their safety. They were described by Fiamengo as being “terrified”. Fiamengo testified that he armed himself with a hammer and he observed two other loss prevention officers arm themselves with fire extinguishers. It was their intent to use these items to deter people from entering the store.

[29] Fiamengo testified that he observed a young man in a white Canuck team jersey apparently creating a human barrier in front of the windows along West Georgia Street. Fiamengo then noticed a second male also trying to establish a human barrier and observed that this individual (Mackay) was yelling and trying to push the crowd back.

[30] Fiamengo testified that both the young man in the white team jersey and Mackay were throwing their arms out to establish a human barrier between the Bay and the crowd and that they were moving up and down West Georgia Street.

[31] Fiamengo then noticed a man holding what look to him to be a bus pole attempting to strike one of the Bay windows. He testified that Mackay grabbed the pole from this person and pushed him off of the curb. Fiamengo testified that he lost visual contact with Mackay as he disappeared into the crowd.

[32] Fiamengo described the crowd as very hostile and noted that some of the rioters were throwing shards of glass from the broken Bay windows at both himself and the other loss prevention officers. He described the scene as comparable to a, “complete war zone”.

[33] At one point, while the riot was taking place outside of the Bay, a decision was

made by the manager to move the remaining employees and customers out of the Bay through a Dunsmuir Street store exit. Fiamengo described the employees and customers at that time as being visibly upset and that people were crying and shaking. The smell of smoke was in the air and there was a fear that the Bay was on fire. Fire alarms were ringing.

Seskin

[34] Seskin testified that he went downtown with a friend as he wanted to witness something historic. When he arrived downtown he described the mood of people around him to be “going down”.

[35] Seskin testified that he went east on West Georgia Street toward the Live Site. At or around the intersection of West Georgia Street and Richards Street he saw a car on fire in a parking lot. Seskin went along Richards Street and noticed that people were screaming and jumping up and down.

[36] Seskin then made his way to Seymour Street and as he travelled along Seymour Street he saw a large group of people trying to flip a car. Seskin testified that he got caught up in the moment and for a brief time he joined this group in rocking the car.

[37] As a result of this action, Seskin requested protection under s. 5(2) of the Canada Evidence Act. That protection was granted by this Court.

[38] Seskin testified that he found a gas mask abandoned on the Seymour Street. He picked up the gas mask and decided to keep it as a souvenir.

[39] Seskin recalled that people around him were becoming more aggressive and he decided that it would be best if he left the area. At this time, Seskin noticed that the crowd on Seymour Street started running south.

[40] Seskin went south on Seymour Street and then turned right onto West Georgia Street. When Seskin was travelling past the Bay he heard a loud noise of smashing of glass. He turned toward the area of the noise and saw Mackay waving his arms and yelling at the rioters, “This is my fucking city!” Seskin described Mackay as being angry and loud.

[41] Momentarily, Seskin thought that MacKay was part of the riot. However, Seskin quickly realized that Mackay was not an aggressor but was rather trying to protect the Bay. Seskin then saw a man charge Mackay with a pole. Mackay responded by grabbing the pole and used it to push this person into the large crowd that had formed outside of the Bay along West Georgia Street.

[42] Seskin testified that as Mackay pushed this person into the crowd with the pole, he was attacked by members of the crowd. Seskin described this attack as a swarming. He testified that he saw Mackay being struck in the back and top of his head. He recalled seeing three to four punches directed to the head of Mackay. He could not recall the exact number of people who were swarming Mackay but estimated in cross examination that they could have numbered seven to eight individuals.

[43] Seskin saw Mackay fall to the pavement. People were all around Mackay. He testified that he saw three to four kicks directed at Mackay when he was on the ground.

He was fearful that if something was not done that Mackay could die.

[44] Seskin recalled that he donned his gas mask, as there was a smell of tear gas or pepper spray in the air. He pushed his way through the crowd and managed to assist Mackay. As Seskin bent over to assist Mackay, the crowd around him pulled away in reaction to the tear gas or pepper spray in the air. Seskin realized someone had sprayed Mackay in the face.

[45] Photographs depicted Mackay with his face covered by his hands being assisted by Seskin and another individual. With the assistance of Seskin and this other individual, Mackay was taken to an area of safety.

[46] Seskin testified that MacKay then left to meet up with his girlfriend. Seskin left the area and went to the Granville Street Canada Line station. He noticed at the Canada Line station that there were many people arriving who had their faces masked and were carrying sticks and bricks. He remained at the area of the Canada Line station for 15 to 20 minutes and then left on the train after a brief wait.

Mackay

[47] The complainant Mackay was a central figure in this trial. He has been described by some as a “hero” or a “good Samaritan” for his actions outside of the Bay when the riot was fully underway. The accused take the position that Mackay’s role in the riot was that of an aggressor.

[48] In direct examination, Mackay testified that in June of 2011 he was 6’3” and weighed approximately 250 pounds. Prior to June 15, 2011, he recalled that he had gone downtown to see game five of the Stanley Cup final at the Live Site. He enjoyed that experience and on June 15, 2011, decided to go downtown to watch the final Game.

[49] He went downtown with a friend to a bar on East Hastings Street to watch the Game on television. He recalled that he arrived around 3:30 PM at the bar and about one hour later his girlfriend arrived.

[50] Mackay testified that he watched the Game right through to the awarding of the Stanley Cup before leaving the bar. While at the bar, he recalled consuming six or seven sleeves of draft beer. The beer caused him to feel “buzzed”. He testified he was able to walk and talk though he would not have driven a car.

[51] After the Game, the three of them went into the downtown core. Mackay saw property being damaged and destroyed. At the Bay, along West Georgia Street, he saw windows being broken and property being looted.

[52] Mackay described seeing a person in front of the Bay wearing a white Canuck’s jersey and waving his arms back and forth in an effort to protect the Bay from rioters. Mackay testified that he did not know this person, but that he felt compelled to jump in and give him a hand. He wanted to help this individual as he thought he was “doing the right thing”.

[53] Mackay testified that he and the male in the white jersey moved back and forth in front of the windows of the Bay situated along West Georgia Street. During this time, the crowd outside of the Bay intensified in size and rioters began attacking windows at the Bay. Mackay tried to protect the property of the Bay for about 10 to 12 minutes when events spiralled out of control (the “incident”).

[53] Mackay described the incident that unfolded in the following uninterrupted narrative:

A Okay. There were crowds of people. It was -- it was quite hectic and very busy, and one particular window breaks and that got the -- got the crowd riled up. After it broke you could hear a lot of yelling and hooting, and -- and that's when someone tried to break into the -- into the store itself.

And when I saw that happen I tried to prevent it by picking up like a bear hug, and -- and moving him off to the side, at which point I turned around and -- and I was full of adrenaline, and I yelled into the crowd that this was my fucking city, and -- and at which point one of the rioters -- excuse me -- picked up a pole or a window frame, a frame from the window. I didn't know what it was at the time, so I -- that part was coming, coming from the video, but it was quite light. It was like aluminum, and -- and he came at me in a lunging motion.

I stepped off to the side. I grabbed the pole and I tried to move the -- move the crowd back with it. In doing so I left my back exposed and -- and was swarmed by a bunch of people. I was punched, I was kicked, I was -- I was taken down to the ground, at which point I tried to cover my face and my head like in the fetal position, and I took blows to my ribs, to the back of my head. Those were very distinctive, and -- and then I was pepper sprayed once on the ground.

That cleared the crowd off, and two young gentlemen came to my aid and escorted me away. We started to walk eastbound down Georgia, and at which point a police officer told us -- well, I believe it was a police officer. My -- I couldn't open my eyes because they were burning.

So anyway we -- we turned around. We ended up at the corner, I think of Burrard and Georgia or Rob -- it was -- I think it was kitty corner to -- think it was Robson. I think it was kitty corner to -- to the art gallery. Anyways, whatever intersection it was, was on the northeast corner of that intersection. Couldn't keep my eyes open longer than a second. My forehead was ‑- was burned. My eyes were throbbing and I had to get a police officer to -- to call Tammy to come get me. I had to go through the motion of -- I have an iPhone at the time, swipe, punch in the code, go into Favourites, find Tammy, give her a call.

She came down to pick me up and we walked up Howe Street, and by the time she had come to pick me up people had given me their bottles of water so I could -- the police said "Just keep on pouring water over your head, water over your head," so people kept on -- seeing that I was in pain they gave me -- they gave me water, and I was just dousing my face with it to kind of wash it off.

Then we walked up Howe Street as a-- to go over, to go over the Granville Bridge. As I was crossing the bridge I told -- I told Tammy part of the story but not the full -- not -- not to the full extent. Think I was still in a little bit of shock on what had happened, and -- and I looked back and I saw helicopters flying around. At this point it was -- the sun was setting, like it was quite dark. There were five or six billows of smoke going up and cops blocking off bridges. It was an ugly sight. It looked like a war zone.

(Transcript, Feb. 4/14; P. 15, Lines 40-47; P. 16, LL.1-47; P. 17, LL. 1-14)

[54] Mackay testified that just before the incident took place he saw a person in a red hoodie at a window of the Bay. Mackay believed this person was going to damage the Bay. He picked up this person in a bear hug and threw him on his feet into the crowd. This person was later identified as Armando Garcia (“Garcia”), a friend of Barahona.

[55] Mackay testified that after he had removed Garcia, he turned around and saw a person lunge at him with a pole. Mackay described his reaction in the following exchange:

Q And so what did you do?

A I was able to take the pole, step off to the side, take the pole from his hands, grab it from him, and I pushed my way into the crowd.

Q Now, why did you do that?

A I was trying to create a barrier with the pole and try to move the whole crowd back from the storefront.

(Transcript, February 5, 2014, Page 6, Lines 22-29)

[56] Mackay testified that when he went into the crowd he was struck on his head and his shoulders. When he was on the ground, he was kicked in his ribs and also at the back of his head. Mackay was unable to give more exact details as he described what was taking place as a swarming and felt he was “overwhelmed”.

[57] Mackay testified the incident happened quickly and that it was his rough estimate that there were 15 to 20 blows to his head, shoulders and body. He described one blow in particular to the back of his head when he was on the ground as a “big blow”. While on the ground he recalled he was maced or pepper sprayed in his face. This blinded him for a period of time.

[58] Other than covering his face and head, Mackay testified that he took no retaliatory actions by way of kicks or punches in response to people who were attacking him. Though originally he thought seven to eight people had attacked him in this incident, when he subsequently viewed the YouTube video of the incident he realized that many more individuals were involved.

[59] Mackay testified that he sustained some injuries but they were more or less resolved within a couple of weeks. He also testified that he received a great deal of unwanted attention as a result of his actions during the riot. In large measure, that attention became focused on Mackay as a result of the posting of the YouTube video documenting the incident outside of the Bay.

[60] Mackay was challenged by Barahona in cross-examination with respect to the amount of alcohol he consumed. Mackay testified that he estimated that he consumed six to seven sleeves of draft beer, but conceded it may have been more. He readily agreed that the consumption of the beer may have influenced his judgement.

[61] Mackay agreed with Barahona when it was suggested to him that he may have been well intentioned in trying to protect the Bay, but, in hindsight, it was not such a good idea. Mackay testified that he used the pole to push the crowd away from the Bay without thinking how some people in the crowd would respond.

[62] Mackay agreed with Barahona when it was suggested that his conduct was influenced by the consumption of alcohol and an adrenaline rush at the time of the incident.

[63] Barahona questioned Mackay as to his motive to get involved in protecting the Bay property. Mackay agreed that getting involved in protecting the Bay property would likely attract attention as a result of the number of people filming and taking pictures at the scene of the incident. However, he felt it was “important” to try to protect the Bay property.

[64] Mackay was questioned why he thought it was “important” in the following exchange:

THE COURT: You said you thought it was important. Why did you think it was important?

A It's a city I love. It's a -- I moved around a lot. I thought it was disgraceful what was happening. I just wanted to prevent any more damage.

(Transcript, February 5, 2014, Page 46, Lines 16-21)

[65] Mackay denied the suggestion of Kangles that the pole that was thrust at him was intended to break a window of the Bay in the following exchange:

Q And again I know what you're saying. You saw a pole coming in your direction, you reached out and grabbed it and I'm sure you felt that it was coming at you, but is it possible that this individual was just trying to break another window?

A I don't think so. I think I was pretty far away from the window. The pole was coming towards me.

Q In --

A And I actually had to step out of the way from it.

(Transcript, February 5, 2014, Page 51, Lines 43-47; Page 52, Lines 1-5)

[66] Mackay agreed with Kangles that the crowd in front of the Bay became more aggressive as he was yelling at the crowd. The fervour of the crowd caused Mackay to also experience heightened aggression.

[67] Mackay agreed with Kangles that when one views the YouTube video, it appeared that Mackay was using a kayak-like motion when he moved into the crowd with the pole. Mackay denied that he was using any thrusting motion and he did not think that he would cause any injuries with the pole, except by “fluke accident”.

[68] Like Barahona, Kangles also questioned Mackay as to his intent when he was using the pole as a barrier, given that there may have been hundreds of people in front of Mackay, in the following exchange:

MR. KONTOU: There were hundreds, maybe. Maybe not 1,000.

Q But is that what you thought you were doing?

A I used the pole to create a barrier and I just wanted to push the crowd back.

Q And of course that action didn't discriminate between the ones who were coming out to damage and those who were just watching?

A It was -- it was the people that -- it was the person that came after me. I picked up the pole or I took it from him and I tried to push the crowd back.

Q Now, I know you've said that in retrospect you wouldn't advise -- you wouldn't do it and you wouldn't advise anyone else to do the same.

A No. Why would they?

(Transcript, February 5, 2014, Page 60, Lines 28-43)

[69] Mackay denied the suggestion put to him by Leonati that when the man in the blue Canuck jersey came at him with the pole that he decided he had to make a stand. Rather, Mackay testified that it was his sole intention to protect the Bay by pushing people away from the Bay.

[70] In reference to a statement given by Mackay to the police, it was suggested by Leonati that Mackay told the police that his mistake was going into the crowd with the pole. Mackay disagreed. He told the Court that his biggest mistake was, “opening up my back”.

[71] Mackay agreed with the suggestion of Leonati that chronologically as he went forward into the crowd with the pole that he took a “few shots” on the back of his head and that some of these shots were described as “blind side” shots.

[72] Mackay agreed with MacDonald that as he pushed the pole into the chest of the man in the blue Canuck jersey that he could be heard saying, “Do you want to eat this?”

THE ACCUSED

[73] Barahona, MacDonald and Kangles testified in their own defence. All three were extensively cross-examined by Crown Counsel. The impact of the cross-examination will be examined in my analysis of the evidence.

Leonati

[74] Leonati did not call any evidence in this trial. However, before the trial commenced, a voir dire was conducted in relation to the admissibility of a statement given to the police by Leonati. No evidence was called by Leonati on the voir dire. The statement was ruled admissible.

[75] The interview of Leonati was audio and videotaped. It was a lengthy interview. During the interview the police disclosed evidence which implicated Leonati. At one point Leonati was shown a video in slow motion which appeared to show Mackay being kicked by Leonati. When pressed by the police to tell the truth about what happened Leonati stated, “I kicked him”.

[76] Leonati told the police interviewer that he kicked Mackay, “… cause I was stupid and people act stupid when they’re drunk and with a stupid crowd, and I regret what I did obviously”.

[77] In addition, Leonati was invited to write a letter of apology to Mackay. Leonati took a considerable amount of time writing the letter in which he apologized for his actions and wrote, “I was being very stupid and immature… Assaulting you was very childish of me and you did not deserve it whatsoever”.

[78] During the voir dire, various videos and photographs were introduced into evidence by the Crown. One of the videos was the YouTube video depicting the incident in which Leonati is observed looking at Mackay when he is under attack. There was also a photograph which appears to depict Leonati kicking Mackay when he was on the ground.

Barahona

[79] Barahona testified that he was approximately 22 years of age at the time of the riot. On Game day, Barahona received a call from his friend Garcia to go downtown to see the Game. Garcia had gone downtown earlier with another individual called “Tito”.

[80] Barahona was wearing a distinctive turquoise and white striped T-shirt. He took with him his personal device and his wallet. He made his way downtown by taking the SkyTrain to the Granville SkyTrain station. He met up with Garcia and Tito and went to the Live Site where they stayed until the end of the Game.

[81] After the Game, Barahona recalled getting some food at a Burger King on Granville Street. After that, he was in the area of the Bay when he saw Mackay place Garcia in a bear hug and throw him into the crowd. He then recalled observing Mackay grabbing a pole and coming into the crowd. Barahona testified that he put his arms up to protect himself from the pole in the following exchange:

Q Okay. All right. What happens -- we know -- you've seen the video, there's a pole, Mr. Mackay grabs a pole. What happens after Mr. Mackay grabs that pole, what's your recollection?

A He came to the crowd with the -- where I was with the pole. I thought I was going to get hit with that pole.

Q Okay. And in the video we see you apparently -- and I'm demonstrating for the record with your arms up -- both arms up in this fashion above your head; do you remember seeing that?

A Yes.

Q What were you doing at that time?

A Trying to protect myself, like -- like --

(Transcript, February 11, 2014, Page 6, Lines 12-25)

[82] Barahona then saw a, “bunch of people trying to hit Mackay”. At that point, Barahona testified that he was pushed from behind toward Mackay. At the same time, Barahona found himself behind Garcia and testified that he was trying to pull Garcia back as he thought Garcia was trying to hit Mackay.

[83] Barahona denied any direct intentional physical contact with Mackay. He testified that if there was contact with Mackay, it was accidental.

[84] Barahona explained that he acted in the manner he did as he did not want Garcia to get into any “trouble”. After the incident, Barahona testified that he followed his friends as they were walking around. Barahona intended to take the SkyTrain home but was told by people that the SkyTrain was closed.

[85] When he finally left the downtown area, Barahona recalled that it was getting dark. He testified that both prior to and after the incident with Mackay, he used his personal device to take photographs and videos.

[86] Barahona became aware that he was a person of interest as a participant in the riot several months after the riot when a friend told him that he had seen Barahona’s face on a flyer on the SkyTrain. Barahona testified that he was worried and nervous so he got legal advice and then went to the police.

[87] In cross-examination by MacDonald, Barahona testified that when Mackay had the pole in his hand and was advancing toward the crowd he heard Mackay say, “Do you want to eat this?”

Kangles

[88] Kangles testified in direct examination that he was 24 years of age at the time of the riot and was married. He is now 27 years of age and is separated. He has no criminal record. In September 2012, he moved to Ontario where he is pursuing training to become a commercial pilot.

[89] On Game day, Kangles got a call from a friend inviting him to go downtown to watch the Game at the Vancity Cinema as he had an extra ticket. Around 2:45 PM, Kangles left by car and picked up another friend who was also going to watch the Game at the Vancity Cinema.

[90] Concerned that parking would be a problem in the downtown core, Kangles parked his car at a parking lot located on the east side of the Georgia viaduct in the area of Prior Street. Kangles and his friend then walked along Pacific Boulevard toward the Vancity Cinema which was located on Seymour Street, south of West Georgia Street.

[91] Kangles watched the Game until its conclusion. He then left with his friends and went to a small park located across from the cinema where they stayed for about 20 minutes. Following that, a decision was made to work their way back to his car.

[92] Kangles testified that they walked north on Seymour Street and then turned east

on West Georgia Street. The plan was to cross the Georgia viaduct to the parking lot where he had parked his car. However, they could not get very far as they were blocked by a line of riot police at the intersection of Homer Street at West Georgia Street.

[93] A decision was then made to catch the SkyTrain at the Granville Street SkyTrain station. As Kangles and his friends proceeded westbound on West Georgia Street, he described the crowd around them as shoulder to shoulder.

[94] Kangles recalled that he was more or less in the middle of West Georgia Street at Seymour Street when the incident with Mackay unfolded. He described the incident in the following narrative:

Q Tell the story.

A Yeah, sure. My friends and I were walking down the middle of the street, and, like I said earlier, you could hear glass smashing. There was this one particular smash that caught my attention and I turned my head to the right and I was focused on that, that area I guess more or less as I was walking up the street, and out of nowhere I see a pole sticking up out of the crowd. A couple seconds later I see a man holding it and what looked like to be swinging it in the crowd. I thought that he was going to hurt people. I didn't know what was going on. He just seemed like a threat. He had a weapon in his hands and it was waving in the air. I ran over to him, kind of pushed my way through the crowd, grabbed him by the head, the shoulder and the head, and pulled him down to the ground. It's a little blurry after that, I mean, people -- I remember being pushed. I remember being pulled. And then I left after that. I went across the street to find my friends.

(Transcript, February 13, Page 97, Lines 1-22)

[95] With respect to his purpose in pulling Mackay to the ground, Kangles testified, “I just wanted to make sure that the weapon was out of his hands and he was not going to hurt anybody”.

[96] Kangles testified that he saw Mackay on the ground when he began to inhale mace and felt mace in his eyes which caused a burning sensation, so he decided to leave the area. He further testified that since Mackay was disarmed and was on the ground, there was no need for him to stay. Kangles denied kicking or attempting to kick Mackay when he was on the ground.

[97] After the incident, Kangles found his friends across the street and he told them he had mace in his eyes. They gave him some water and then made their way to catch the SkyTrain to the Science World station. However, when they got to the Granville Street station there was a large crowd of people. They asked some bystanders how long they had been in line and were told it was about 30 minutes just to get into the station and it could take another hour or two once inside the station to catch a train.

[98] Kangles and his friends decided to work their way to the Burrard Street station at Dunsmuir Street. When they got close to the station, they saw a large line of people waiting to enter. At this point, Kangles and his friends turned around and headed back to West Georgia Street as the plan was to again try to cross the Georgia viaduct.

[99] Kangles testified that he was diverted in his travel east along West Georgia Street when he saw some individuals creating a human barrier in front of the Bay in an effort to prevent further looting. Kangles went over and briefly joined hands with this group before one of his friends dissuaded him from getting involved in a potentially dangerous situation.

[100] Kangles and his friends proceeded eastbound along West Georgia Street noting

that there were still some police presence, but the riot police were no longer present. They eventually crossed the Georgia viaduct, made their way to the parking lot and left.

[101] In or around September 10, 2011, Kangles found out that the police were looking for him as a suspect in the riot. Kangles secured legal advice and turned himself in to the police on September 13, 2011.

MacDonald

[102] MacDonald testified that he was 19 years of age at the time of the riot. He described himself as 5’9” and about 150 pounds. He admitted to having a criminal record for taking flight from a peace officer.

[103] MacDonald testified that he decided to come into Vancouver with his girlfriend on Game day to view the Game at the Live Site. He could not recall which SkyTrain station they disembarked from as he was very unfamiliar with Vancouver, though he believed the station was across from the Bay. In any event, he relied principally on his girlfriend for directions as she was more familiar with Vancouver.

[104] They made their way to the Live Site where they watched the Game. MacDonald described the mood of the people around him as being happy, but as the Game progressed, he testified that the mood became less happy. When the Game ended the unhappy mood was noticeable.

[105] MacDonald and his girlfriend decided to leave the area. At this time he noticed that people were pushing at crowd control fencing, that there was smoke in the air, and that many people were chanting, “Fuck Boston”. He observed that people were pushing over portable toilets and there was property being damaged both in front of them and behind them.

[106] MacDonald recalled that they made their way to the SkyTrain station on Seymour Street but noticed there was a huge line-up outside of the station. He recalled that some people had told him that the SkyTrain was closed or broken.

[107] He identified himself with his girlfriend from CCTV security camera footage in front of the Bay. Mackay and the man in the white jersey could also be seen in the footage with their arms out creating some form of a barrier. MacDonald confirmed that he saw a “kid” break one of the windows of the Bay with a sign.

[108] MacDonald agreed he could be seen in the CCTV footage picking up a sign and throwing it through the window. He testified that he did not break anything as the window was already broken. When asked why he threw the sign he replied, “I got caught up in the moment; it was a bad decision obviously”.

[109] MacDonald was asked to explain what he meant by being “caught up” in the moment in the following exchange:

THE COURT: Caught up in what moment?

A Uh, just everything that happened all at once, just, the kid that broke the windows, other people were smashing, these guys were yelling at people, and the sign just happened to be in front of my feet, so I picked it up.

(Transcript, February 17, 2014, page 20, Lines 40-45)

[110] MacDonald was asked to detail what he did with the sign in the following exchange:

Q Okay. And, sorry, you picked it up, and what did you do with it?

A I threw through the window, it was already broken, so I just figured I'd huck it into the store.

Q Do you know if you hit anything inside?

A Mmm, no, I think it just went through the window, maybe hit the wall or display case may have been there, I don't recall.

Q So you're not ‑- you don't know?

A No, I don't think it hit anything, I think it just went in.

THE COURT: Did you look or just chucked it?

A Yeah, watched it go in and, kind of, just made its way in, and I turned around, that was that.

(February 17, 2014, Page 20, Line 47, Page 21, Lines 1-13)

[111] MacDonald testified that he had decided to walk away with his girlfriend after he threw the sign when he heard a commotion behind him which drew his attention.

[112] MacDonald testified that he then moved back to the area where Mackay was located. He described that he was positioned with his girlfriend up against the edge of the curb of West Georgia Street alongside the Bay. MacDonald described what happened next in the following narrative:

THE COURT: So you have gone up the street, you turn back, and tell me what happens?

A Okay, well, we made our way down to I guess where it would be behind Mr. Mackay, and from there on I don't believe it took too long and people starting throwing ‑- spearing the windows, spearing the windows with bus poles or whatever. One kid I believe threw a ‑- threw a spear and it broke the window which was the big initial glass bang, and then a few others had a go at it, and then from what I remember the guy in the blue jersey went ‑- picked up the pole and tried to spear the window, and Mr. Mackay had grabbed it out of the air that he ‑- so he didn't break the window and then flipped it around and ‑-

THE COURT: Yes.

A ‑- pushed it towards the group of people.

And I was just off to the side, and I remember, kind of, having to push my girlfriend back and step back because it had come pretty close, and then after that, because it came close, I just instinctively, kind of, went at him from behind, hit him in the head and in the side of the stomach, and then after a few shots, I gave him a little push, and at the same time I was pushing, someone had grabbed the back of my shirt and yanked me off, and then I just walked away into the crowd, and we just went into the crowd, and I think we back up towards the SkyTrain at that point.

THE COURT: On Granville?

A Yes.

(Transcript, February 17, 2014, Page 28, Lines 41-47, Page 29, Lines 1-25)

[113] MacDonald believed the pole used by Mackay was a steel bus pole and it was about 10 feet in length. He testified that Mackay had the pole at chest level as he came into the crowd. MacDonald testified he had to push his girlfriend away to prevent her from being struck by the pole.

[114] MacDonald described his girlfriend as being 5’4” in height and recalled that the end of the pole passed by her in the forehead area.

[115] MacDonald testified that it was his intent to disarm Mackay but in doing so his left dominant arm became entangled with someone else in the incident. However, in the following exchange he admitted that he was able to get in some “good shots” with his right hand:

Q Okay. And I ‑- at some point, the nature of the blows changes, right?

A Yeah, it was really awkward 'cause it was my other hand, so I got a little distance with a push with one arm, and then I believe I, kind of, corrected, if you want, but then I hit a ‑- got a few good shots with my right hand.

Q Okay. And why were you using your right hand?

A 'Cause my left hand got tangled up because we were ‑- had our fingers locked, so as she got pushed away, it was awkward, I couldn't just bring it up and around ‑-

Q Okay.

(Transcript, February 17, 2014, Page 33, Lines 17-29)

[116] MacDonald was questioned about his girlfriend’s location at when he got in the “good shots” in the following exchange:

THE COURT: So the ‑- he is past you and your girlfriend at that point?

A Um ‑-

THE COURT: When you get the good shots in?

A Pardon me?

THE COURT: He is past where you ‑- he is past your girlfriend at the time you get the good shots in?

A Well, it was ‑- it seemed ‑- it was all, kind of, like one motion 'cause it went like that to that, but, she's pushed back a little, I guess, I don't know exactly where she is because I'm not focused on her, right, so all I know is that she's behind me at that point.

THE COURT: Okay.

(Transcript, February 17, 2014, Page 33, Lines 34-47)

[117] MacDonald believed that so long as Mackay remained on his feet he posed a potential threat due to his size. MacDonald described his physical actions with Mackay as one of pulling and pushing him at the same time, apparently to knock him off balance causing him to go to the ground.

[118] MacDonald testified that others were around Mackay at this time. He saw Mackay lose his balance and fall over. After that, MacDonald testified that he turned around and went back into the crowd. From a short distance away, MacDonald recalled that he saw Mackay as he took a few kicks. He described these kicks as, “rams go in”.

[119] MacDonald joined up with his girlfriend and they decided to leave by using the SkyTrain. They went to the Granville Street station where they caught the SkyTrain back to Surrey.

[120] He recalled that about one month later his girlfriend brought the YouTube video of the incident to his attention. MacDonald was asked what his impression was when he saw that video in the following exchange:

THE COURT: What was your thought when you saw yourself in that video?

A I wasn't impressed. It looked ‑- it looked worse than I thought would have happened.

THE COURT: When you say you weren't impressed, who were you not impressed by?

A Me.

THE COURT: You?

A Yeah, I was pretty noticeable . . .

(Transcript, February 17, 2014, Page 36, Lines 22-30)

POSITION OF THE PARTIES

[121] It was agreed between the four accused and Crown Counsel that the accused would make their submissions first with Crown Counsel making their submissions last.

Barahona

[122] Barahona submitted that the Court should question two aspects of the evidence called at trial. First, Barahona submitted that the reliability of the video and photographic evidence was questionable as it was not clear and compelling evidence establishing guilt beyond a reasonable doubt. Second, Barahona submitted he was credible and reliable in explaining his state of mind as events unfolded in the downtown core after the Game and his evidence would establish a doubt.

[123] Barahona admitted that he was clearly and readily identifiable with his turquoise and white striped T-shirt. At no time was he disguised or he covered his face. He characterized his presence as an observer only as events following the Game unfolded in the downtown core.

[124] In relation to the assault allegation, Barahona submitted that the video and photographic evidence was not conclusive in establishing his guilt beyond a reasonable doubt. He submitted that when one looks at the photographic and video evidence from Barahona’s perspective, it could be open to various interpretations. One such interpretation is that Mackay was an aggressor and that it would be plausible that someone, including Barahona, would view his actions with the pole as personally threatening.

[125] It was submitted by Barahona that the YouTube video of the incident could also be interpreted as establishing that Barahona was attempting to pull Garcia back from Mackay. Barahona submitted that the whole incident, from the moment Mackay entered the crowd with the pole until he was pepper sprayed, happened very quickly and in a chaotic situation.

[126] Barahona submitted that his evidence was both credible and reliable in establishing that he was not involved in the riot, rather that he was simply present, and like many other people, observing what was taking place. His taking photographs and video during the riot, was, at best, benign. It was noted that he turned himself in to the police once he was aware that he was a suspect.

Leonati

[127] Leonati submitted that the YouTube video did not clearly establish that he kicked Mackay. If there was a kicking motion, Leonati questioned if the necessary intent was established.

[128] It was further submitted by Leonati that his statement to the police was less reliable as it was given some nine months after the riot. The Court was invited to find that Leonati simply “caved in” when he agreed with the police assertion that he had kicked Mackay.

[129] In relation to the riot itself, Leonati submitted that the video and photographic evidence could only establish that he was standing around and more or less “gawking” at what was taking place around him.

[130] Ultimately, Leonati’s position is that the Court should find that the video and photographic evidence is not clear and compelling in establishing his guilt and he therefore ought to be acquitted of participating in the riot and assaulting Mackay.

Kangles

[131] Kangles adopted the position taken by Barahona that context and perception were important issues to his defence. In particular, it was submitted that Kangles’ perception of what was taking place during the incident was influenced by his position in the crowd along West Georgia Street.

[132] Kangles submitted that he was not in the forefront where Mackay was trying to protect the windows of the Bay. He would not know Mackay was trying to protect the Bay. It was submitted that he only became aware that Mackay was trying to protect the windows of the Bay when he viewed the YouTube video that was posted after the riot.

[133] Kangles submitted that his evidence, that he heard a smashing noise of breaking glass which caused him to turn and look toward the Bay, was credible and reliable. He testified that he immediately saw a metal pole in the air. Within a split second, he saw that the pole was being wielded by Mackay in a kayak-like motion as Mackay pushed his way into the crowd.

[134] It was further submitted that Kangles was credible and reliable when he told the Court that he believed that Mackay was committing an assault. As such, he would be justified at law to exercise reasonable and proportionate force to protect the person or persons who he believed was being assaulted by Mackay.

[135] Kangles submitted that his application of force in the grabbing and pulling down of Mackay was in fact reasonable and proportionate. He submitted that this force was intended only to disarm Mackay.

[136] Kangles emphasized that his involvement with Mackay was extremely brief and amounted to no more than a few seconds. Within this brief timeframe, Kangles processed his observations and made the decision to attempt to disarm Mackay.

[137] Kangles submitted that the Crown failed to establish beyond a reasonable doubt

that he was not entitled, in all of the circumstances, to rely on the preventative Criminal Code provisions respecting protection of persons and property.

[138] Kangles’ submitted that the YouTube video did not establish beyond a reasonable doubt that he kicked or attempted to kick Mackay when he was on the ground. In addition, Kangles submitted that he ought to be believed in his denial of any kick to Mackay.

[139] Kangles submitted that there were no other actions that could result in identifying him as a participant in the riot. He did not wander around in the downtown core taking pictures and videos. To the contrary, he submitted that he took reasonable steps to best find his way out of the riot zone to get to his car.

[140] Finally, Kangles submitted that once he learned that he may be a suspect for the assault upon Mackay, he got legal advice and within a couple of days went to the police where he identified himself and provided contact information.

MacDonald

[141] MacDonald also adopted the position taken by Barahona and Kangles that context and perception were important to his defence. He submitted that the Crown has not established beyond a reasonable doubt that he was not entitled to the benefit of the preventative provisions of the Criminal Code respecting protection of persons and property.

[142] MacDonald addressed the mischief charge first and submitted that the Court could find from the video evidence that the window that MacDonald threw the sign through was already broken. Thus, the window would be replaced regardless of MacDonald’s conduct and if there was any damage caused by him, that damage should be considered minimal. He urged the Court to apply the de minimus curat lex principle. In the alternative, MacDonald submitted the Crown failed to establish a monetary value in relation to the broken window.

[143] In relation to the alleged assault of Mackay, it was submitted that it was more than reasonable for MacDonald to believe that when Mackay went into the crowd with the metal pole in the air, that he posed an immediate threat to his girlfriend. It was submitted that from the angle where the YouTube video was taken, Mackay would be proximate to MacDonald’s girlfriend when he went into the crowd with the pole.

[144] MacDonald further submitted that he was justified in using reasonable and proportionate force in an effort to disarm Mackay of the pole when Mackay proceeded past him and into the crowd.

[145] While there may have been 9 to 12 blows delivered by MacDonald, it was submitted that the Court must apply an objective standard and that, in the context of what was taking place around MacDonald, those 9 to 12 blows were reasonable.

[146] MacDonald also submitted that Mackay was a large man and the force applied by him was proportionate having regard to Mackay’s height and weight. It was emphasized that the blows directed by MacDonald were delivered by his right hand and not his dominant left hand.

[147] In relation to the alleged participation in a riot, MacDonald submitted that the

evidence showed him walking around downtown core holding the hand of his girlfriend. Other than throwing the sign through the broken window of the Bay, there were no other actions consistent with his participation in a riot.

[148] Finally, MacDonald submitted that the fact that he did not turn himself into the police was explained as he anticipated, because of his criminal record, the police would eventually come for him in any event.

[149] MacDonald’s submitted that his testimony was credible and reliable and ought to be believed, or that at the very least, his testimony would establish a reasonable doubt as to his guilt in relation to the criminal charges.

CROWN COUNSEL

[150] Crown Counsel submitted that a key element is how the Court assesses the uninterrupted narrative respecting the incident as told by Mackay. In that assessment, Crown Counsel submitted that the Court should find that Mackay was credible, reliable and trustworthy beyond a reasonable doubt.

[151] Crown Counsel submitted that Mackay’s evidence about the events following the Game was supported by the photographic and video evidence presented in this trial.

[152] In relation to the events at the time of the incident, Crown Counsel’s position was that the Court should find that Mackay was attacked by the man in the blue jersey with the pole. This was not a situation in which the pole was being thrown at a window of the Bay. Even if the Court was to find that the man in the blue jersey was trying to damage a window, it was so proximate to where Mackay was standing that his action in seizing the pole was justified.

[153] Crown Counsel submitted that Mackay was trying to deal with a highly charged and aggressive crowd when he seized the pole. It was submitted that the Court ought to accept Mackay’s evidence that it was his intention to push the man in the blue jersey, along with others, away from the Bay.

[154] It was submitted by Crown Counsel that Mackay’s evidence, along with the YouTube video, supported the Crown theory that upon pushing the pole into the crowd, Mackay was swarmed and beaten. He was struck repeatedly in the back of his head and his lower body. When Mackay was forced to the ground, the pole was gone from his hands. He was then kicked and pepper sprayed.

[155] Additionally, Crown Counsel submitted that Seskin was a credible, reliable, and trustworthy witness, and that his evidence ought to be accepted in support of the Crown theory that Mackay was unjustly assaulted.

[156] Crown Counsel’s submitted that if the evidence established beyond a reasonable doubt the guilt of any of the four accused of an assault upon Mackay that such a finding should also result in a finding of guilt for participation in a riot.

[157] Crown Counsel did not argue that there was no air of reality to the self-defence or defence of other persons raised by Barahona, MacDonald or Kangles. Rather, Crown Counsel submitted that the Crown had established beyond a reasonable doubt that the provisions of the Criminal Code dealing with protection of persons and property would not apply to the accused.

[158] It was submitted by Crown Counsel that the case against Leonati was strong. He confessed to kicking Mackay in the audio video statement tendered in the voir dire. Crown Counsel submitted that there was no evidence before this Court to suggest that Leonati was overborne by the police or simply “caved in” during the police interview.

[159] Crown Counsel noted that when Leonati was invited to write a letter of apology that he sat for about 15 minutes with pen and paper, apparently considering what he should say. In that letter of apology, Leonati also admitted to an assault upon Mackay.

[160] Crown Counsel submitted that the YouTube video established that prior to Mackay being assaulted, Leonati was not only present but proximate to the area of the assault. It was submitted that the video showed that Leonati was looking at Mackay as he was being assaulted and that after Mackay was taken to the ground, Leonati elected to kick Mackay in the head while Mackay was covering his face and head with his hands.

[161] It was further submitted that the actions of Leonati were not confined to the incident involving Mackay, as both video and photographic footage established beyond a reasonable doubt that Leonati was also in the 600 block of Seymour Street, between 9:30 PM and 10 PM. In this block was a badly damaged car, another car was on fire, fire alarms are heard ringing and people were observed entering and leaving the Bay.

[162] Crown Counsel submitted that within this block, Leonati became involved in a

confrontation with one or two other individuals. Crown Counsel submitted that this is evidence of someone not wanting to leave the area. It was submitted that Leonati not only remained in the riot zone, but by his actions and conduct he was participating in the riot.

[163] With respect to Barahona, Crown Counsel submitted that the video and photographic footage clearly established beyond a reasonable doubt that Barahona was in the riot zone for an extended period of time and was actively involved in the rioting taking place around him.

[164] It was submitted by Crown Counsel that the photographic and video footage clearly established that Barahona was at times jumping up and down, cheering and taking photographs of the damage taking place around him with his personal device.

[165] In particular, Crown Counsel submitted that Barahona was front and centre at the Bay when the incident took place involving Mackay. Crown counsel submitted it was clear that Barahona was looking right at Mackay as the incident unfolded.

[166] Crown Counsel submitted that the YouTube video should establish beyond a reasonable doubt that when Mackay came into the crowd with the pole, Barahona was at no time threatened by that pole.

[167] Additionally, it was submitted that once Mackay was out in the street and was being actively attacked, that Barahona could clearly be seen reaching over another individual to strike Mackay from behind. The blows were neither accidental, nor were they physical actions designed to pull Garcia away to avoid “trouble” as was asserted by Barahona.

[168] In analyzing Barahona’s testimony, Crown Counsel asked the Court to look at internal and external inconsistencies in Barahona’s evidence. It was submitted by Crown Counsel that Barahona was evasive in response to straightforward questions put to him and, further, that Barahona continuously seemed to suffer from a very selective memory. Crown Counsel also noted that many of Barahona’s answers to straightforward questions in cross-examination appeared to be simply made up.

[169] In relation to the alleged assault by MacDonald, Crown Counsel submitted that the Court ought to reject MacDonald’s testimony that his actions in striking Mackay were designed to protect others from being harmed by Mackay.

[170] It was submitted by Crown Counsel that the subjective and objective elements necessary to justify a defence of other persons as asserted by MacDonald were not credibly established. It was submitted that the force applied by MacDonald was disproportionate.

[171] Crown Counsel submitted that MacDonald intentionally pursued Mackay and attacked Mackay not in the defence of any third party, but rather, in an effort to get “shots” in as part of the mob that was attacking Mackay. Crown Counsel submitted that the YouTube video established that MacDonald struck Mackay twelve times of which seven were strikes to the back of his head, two were strikes to the upper shoulders, and three were strikes to Mackay’s right lower back.

[172] Crown Counsel emphasized that MacDonald himself testified that he got in “three good shots” during the incident with Mackay. After the alleged assault, Crown Counsel submitted that no steps were taken by MacDonald to see if anyone was hurt by Mackay, nor did he take any steps whatsoever to seek the assistance of any police.

[173] In relation to the mischief to the window of the Bay, Crown Counsel submitted that the photographic and video footage was clear and compelling in identifying MacDonald as the person who threw the sign through the broken window of the Bay, and that his action caused further glass shards to break.

[174] It was submitted by Crown Counsel that MacDonald’s testimony that he was simply “caught up in the moment” when he threw the sign was not a defence to the charge, nor would the principle of de minimus curat lex apply. Crown Counsel submitted that they had established beyond a reasonable doubt that MacDonald was responsible for the mischief to the window at the Bay as alleged.

[175] In relation to MacDonald’s alleged participation in a riot, Crown Counsel submitted that MacDonald’s conduct with respect to the mischief to the window at the Bay alone established beyond a reasonable doubt that MacDonald ought to be found guilty of participation in the riot. If MacDonald was also responsible for an unlawful assault of Mackay, then that would also establish beyond a reasonable doubt his participation in the riot.

[176] In relation to Kangles, Crown Counsel submitted his perspective of events would be different than in relation to Barahona and MacDonald. Unlike Barahona and MacDonald, Kangles was not in a front and centre position in relation to Mackay. Rather, Kangles came in from a side position on West Georgia Street, which would be to the left side of Mackay. Notwithstanding, it was submitted by Crown Counsel that Kangles acted in a reckless manner in becoming physically engaged with Mackay.

[177] Crown Counsel submitted that the Court ought to reject Kangles’ testimony that he believed in his mind that Mackay posed an immediate threat to a third party or that Mackay was committing an assault when he entered the crowd waving the pole in a kayak-like manner. Crown Counsel submitted that given that Kangles had no idea what was taking place, it was implausible that he could have any objective grounds to justify his use of force.

[178] It was urged by Crown Counsel that if the Court believed that Kangles truly was concerned about a third party being threatened by Mackay, Kangles should have stayed when the incident was over to see if anyone had been hurt by Mackay. It was submitted by Crown Counsel that Kangles did not stay because he simply did not know or care who he was protecting.

[179] Further, Crown Counsel submitted that that the testimony of Kangles was inconsistent with the video footage that was put to him in cross-examination. For example, it was submitted by Crown Counsel that the eyes of Kangles were focused on Mackay and not on the pole when he was grabbing him and pulling him down. Had he focused on the pole, Kangles would have seen that it was out of the grasp of Mackay and, therefore, did not create a further threat.

[180] Finally, Crown Counsel submitted that once Mackay was on the ground that the video footage established beyond a reasonable doubt that Kangles can be seen kicking at Mackay with his right foot.

LEGAL FRAMEWORK

(i) The Charges

[181] The accused have all been charged with the offence of taking part in a riot contrary to s. 65 of the Criminal Code. The charging section reads as follows:

Punishment of rioter

65. (1) Every one who takes part in a riot is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

Marginal note: Concealment of identity

(2) Every person who commits an offence under subsection (1) while wearing a mask or other disguise to conceal their identity without lawful excuse is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years.

[182] The meaning of the expression “a riot” is found at s. 64 of the Criminal Code which reads as follows:

Riot

64. A riot is an unlawful assembly that has begun to disturb the peace tumultuously.

[183] An unlawful assembly is defined by s. 63 of the Criminal Code which reads as follows:

Unlawful assembly

63. (1) An unlawful assembly is an assembly of three or more persons who, with intent to carry out any common purpose, assemble in such a manner or so conduct themselves when they are assembled as to cause persons in the neighbourhood of the assembly to fear, on reasonable grounds, that they

(a) will disturb the peace tumultuously; or

(b) will by that assembly needlessly and without reasonable cause provoke other persons to disturb the peace tumultuously.

Marginal note: Lawful assembly becoming unlawful

(2) Persons who are lawfully assembled may become an unlawful assembly if they conduct themselves with a common purpose in a manner that would have made the assembly unlawful if they had assembled in that manner for that purpose.

Marginal note: Exception

(3) Persons are not unlawfully assembled by reason only that they are assembled to protect the dwelling-house of any one of them against persons who are threatening to break and enter it for the purpose of committing an indictable offence therein.

[184] In R. v. Berntt, [1997] B.C.J. 2301, the British Columbia Court of Appeal was called upon to determine, in part, whether s. 64 of the Criminal Code was impermissibly vague. In particular the Court considered whether the expression “tumultuously” was capable of delineating the prohibited conduct with any degree of precision. Braidwood, J.A., speaking on behalf of the Court at paragraphs 19 and 20, described the interaction of the words “tumultuously” and “riot” as follows:

19 The word "tumultuously" must be read with the word "riot" for each word impacts upon the meaning of the other. A similar process must take place in considering the words in s. 63(1) where the concept of fear is introduced with reference to persons in the neighbourhood of the assembly. Accordingly, then, what was the intention of the Legislature?

20 The word "tumultuously" as defined in the Oxford English Dictionary, vol. 2 (University Press: 1970), opens as follows:

Tumultuous 1. Full of tumult or commotion; marked by confusion and uproar; disorderly and noisy; violent and clamorous; turbulent.

[185] In providing a definition to the word “tumultuous” in the context of a riot

Braidwood, J.A. followed the definition used by the Nova Scotia Court of Appeal in R. v. Lockhart (1976), 1976 CanLII 2456 (NS CA), 15 N.S.R. (2^nd) 512. At paragraph 22 of the Berntt decision Braidwood, J.A. adopted the conclusions reached in Lockhart as follows:

22 He concluded as follows:

. . . Tumultuous - (1) characterized or attended by or making tumult or tumults; full of turbulence, commotion, agitation, etc., as a tumultuous uprising, meeting, tumult. Syn. disorderly, noisy, confused violent, agitated, disturbed, boisterous, lawless, riotous.

. . . . .

I have set out the foregoing definitions because in my opinion when the word "tumultuously" is used in the Criminal Code definition of riot it must connote in a general sense some elements of violence or force which may be exhibited by menaces of threats. The trial judge said it meant "disorder, confusion or uproar"; I think with respect it means more than that. There has to be, in my opinion, an air or atmosphere of force or violence, either actual or, constructive in the sense set out above.

It must be remembered that the offence of "riot" had its roots in the crime of treason and even today in England it has been said that "... the assembly becomes riotous at latest when alarming force or violence begins to be used". R. v. Caird et al (1970), 54 Cr. App. R 499. Certainly, historically, the crime of riot required some violence or terrorizing of the public and it is for such reasons that I am of the opinion as we set out above that Parliament in defining riot as an unlawful assembly that has begun to disturb the peace tumultuously intended the word tumultuously to mean something more than boisterous, noisy or disorderly conduct.

[186] In ascertaining the level of conduct of persons involved in an unlawful assembly that would amount to conduct that would offend s. 64 of the Criminal Code, Braidwood, J.A., at paragraph 34, concluded:

34 In this context, then, a citizen seeking advice as to the meaning of s. 64 would no doubt be referred to the leading case on the subject, namely, R. v. Lockhart, supra, and would be told immediately that the area of risk involved was when "an unlawful assembly by reason of an air or atmosphere of force or violence as exhibited by menaces or threats" would constitute a riot and to be a member of such an assembly would offend the section.

[187] The standard that would apply to establish the existence of a riot would be objective. In R. v Brien, 1993 CanLII 2842 (NWT SC), [1993] N.W.T.J. 116, de Weerdt, J. examined the proof that would be required to establish participation in a riot once the existence of the riot has been proved beyond a reasonable doubt. The Court characterized conduct which could amount to participation in a riot at paragraph 38 as follows:

38 The further element of participation in the riot, once existence of the riot has been proved beyond a reasonable doubt, together with proof likewise of the required objective mens rea as to that fact, will require proof not only of the actus reus of participation (by word or deed or other manner) but the necessary mens rea as to that. I agree with counsel for the applicants, as I understand his submissions, that in this respect the requirement is one of subjective, as distinct from objective, mens rea. And by this, I mean that the accused person must be shown not only to have acted as a participant, but also to have intended to "take part" in the riot (or to have been so reckless as to have acted as if he or she did so intend).

[188] Indeed, there may be situations where the mere presence of an individual at a riot could contribute to the, “… excitement, fervor, intimidation and dangerousness of the unlawful assembly”: R. v. Loewen, 1992 CanLII 6003 (BC CA), 1992 CarswellBC 1104, at paragraph 8, (BCCA).

[189] The four accused have also been charged with the assault of Mackay contrary to s. 266 of the Criminal Code which reads as follows:

Assault

266. Every one who commits an assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or

(b) an offence punishable on summary conviction.

[190] Assault is defined in s. 265 of the Criminal Code as follows:

Assault

265. (1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or

[191] An individual may be found guilty of assault when that individual intentionally directly or indirectly applies force to another person, or attempts or threatens to do so. The degree of force is not necessarily an element of the offence and the application of minimal force or strength when touching another individual without that person’s consent may be sufficient to establish an assault beyond a reasonable doubt: R. v. Burden (1981), 1981 CanLII 355 (BC CA), 64 C.C.C. (2d) 68.

[192] MacDonald has also been charged with committing mischief by willfully damaging windows at the Bay contrary to s. 430 (1) of the Criminal Code which reads as follows:

Mischief

430. (1) Every one commits mischief who wilfully

(a) destroys or damages property;

(b) renders property dangerous, useless, inoperative or ineffective;

(d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.

[193] Any person who wilfully does any of those things listed in s. 430 (1) of the

Criminal Code commits the offence of mischief. The mental element for the offence of mischief, “requires proof of no more than an intentional or reckless causing of the actus reus”: R. v. Toma (2000), 2000 BCCA 494 (CanLII), 147 C.C.C. (3d) 252 at paragraph 7 (B.C.C.A.).

(ii) Onus on Accused and Standard of Proof

[194] The concept of the presumption of innocence is a golden thread that runs throughout the criminal trial. The onus rests with the Crown throughout a criminal trial to prove all elements of a criminal charge beyond a reasonable doubt.

[195] In R. v. Williams, 2013 BCSC 1774 (CanLII), [2013] B.C.J. 2133, Romilly, J., discussed the concept of the

standard of proof at paragraph 28 as follows:

28 In R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, the Supreme Court of Canada indicated that proof beyond a reasonable doubt "does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt". In R. v. Starr, 2000 SCC 40 (CanLII), [2000] 2 S.C.R. 144, the Court clarified that the reasonable doubt standard "falls much closer to absolute certainty than to proof on a balance of probabilities." In R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, the Court further pointed out that "a reasonable doubt does not need to be based on the evidence; it may arise from an absence of evidence or a simple failure of the evidence to persuade the trier of fact to the requisite level of beyond reasonable doubt.

(iii) Self Defence and Defence of a Person under Protection

[196] Sections 34 and 37 of the Criminal Code in force at the time of these allegations read as follows:

34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if

(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and

(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily hard.

…

37. (1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.

(2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt of mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent.

[197] Both of these sections require that the force used not be disproportionate to the force needed to repel the unlawful assault (s. 34(1)) or to prevent the assault or its repetition (s. 37).

[198] On March 11, 2013, Bill C-26, the Citizen’s Arrest and Self-Defence Act, S.C. 2012, c. 9, was enacted which repealed s. 34 through s. 42 of the Criminal Code and replaced them with a new codified provision, s. 34, that applies to self-defence and defence of others. The new s. 34 provides as follows:

Defence — use or threat of force

34. (1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

Marginal note: Factors

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

Marginal note: No defence

(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

[199] The issue of whether or not the new self-defence amendments were retrospective was addressed in R. v. Evans, 2013 BCSC 462. Fisher, J. found that the new amendments were substantive and would apply prospectively only. Romilly, J., in Williams, supra, considered that he was bound by Fisher, J.’s decision in Evans. However, Romilly, J. noted that there were some differing views in other Canadian jurisdictions on the retrospective application issue, so elected to address both the new and the old provisions in Williams.

[200] Accordingly, I consider it prudent to address the issues of self-defence and defence of others under both the old and new provisions of the Criminal Code.

[201] In Williams, Romilly, J., at paragraph 65, identified four essential elements of self-defence under s. 34(1) as follows:

65 There are four essential elements which must be met in order to come within the ambit of s. 34(1) and thereby be justified in using force to repel force:

i. the accused was unlawfully assaulted;

ii. the accused did not provoke the assault;

iii. the force used by the accused was not intended to cause death or grievous bodily harm; and

iv. the force used by the accused was no more than necessary to enable him to defend himself.

[202] The success of this defence is dependent upon every element having been met. The Crown need only disprove beyond a reasonable doubt any one of these four elements in order to defeat the defence: R. v. Herbert, 1996 CanLII 202 (SCC), [1996] 2 S.C.R. 272 at paragraph 23.

[203] The application of s. 37 that was in force at the time of these allegations was discussed in R. v. Roberts, [2008] N.J. 240 by Gorman, P.C.J. In Roberts, the accused was charged with assault causing bodily harm. The accused argued lawful justification and relied in part on s. 37 in his defence.

[204] At paragraphs 66 and 67 of Roberts, the Court succinctly addressed the principles that would apply to the defence of a self-defence justification as follows:

66 In R. v. McIntosh (1995), 1995 CanLII 124 (SCC), 95 C.C.C. (3d) 481, the Supreme Court of Canada held, at paragraph 44, that section 37 makes "the self-defence justification available to an accused in any circumstance where the force used by that accused was (i) necessary, and (ii) proportionate." In R. v. Grandin (2001), 2001 BCCA 340 (CanLII), 154 C.C.C. (3d) 408, the British Columbia Court of Appeal held, at paragraph 36, that the "only elements" of the defence created by section 37 of the Criminal Code "are that the accused used force to defend either himself or others from an assault, and that the force used was no more than was necessary ..." The Court interpreted this latter element as requiring that any force used be "proportionate" (at paragraph 39). Thus, section 37(1) of the Criminal Code allows for the use of force if it is used to "defend" oneself or any one under your protection from an assault if no more force than is necessary to prevent the assault or a repetition of it is used. If more force than is necessary to achieve the stated purpose is used, then section 37 does not provide a defence. In R. v. Gunning, 2005 SCC 27 (CanLII), [2005] 1 S.C.R. 627, the Court, in the context of section 41 of the Criminal Code, equated the words "no more force than is necessary" in that section with the requirement of the force being "reasonable in all the circumstances" (at paragraph 25).

67 Considering these principles, I conclude that section 37 of the Criminal Code allows for the use of force in the following circumstances:

i. if it is used to defend oneself or anyone under the accused’s protection;

ii. from an assault occurring or being repeated; and

iii. if the force used is proportionate to the perceived assault or repetition of the assault.

[205] In relation to the definition of “anyone under his protection”, a rather broad approach has been taken by courts, with much depending upon the specific circumstances of the case. In Roberts, supra at paragraph 68, the Court framed the approach to be taken as follows:

68 In this case, Mr. Roberts argues that section 37 applies because Ms. Cross constituted a person under his protection, despite the lack of any relationship between them or him having any employment connection to the Pub. Ms. Burridge urges the Court to adopt a very broad definition of the words "anyone under his protection." Support for her proposition can be found in R. v. Webers (1994), 1994 CanLII 7552 (ON SC), 95 C.C.C. (3d) 334 (Ont. Ct. Gen. Div.), in which it was held that the words "under his protection" is "not limited to a formal guardianship relationship, such as a parent or guardian and child, or a teacher or student. In its broadest sense, it means anyone who requires protection which the accused may be able to provide." For a similarly broad definition of these words, see R. v. Barkhouse (1983), 1983 CanLII 5098 (NS PC), 58 N.S.R. (2d) 393 (N.S.P.C.) and R. v. Tracey, [2008] O.J. No. 2465 (S.C.J.).

(iv) Use of Force to Prevent Commission of Offence

[206] Section 27 of the Criminal Code provides as follows:

Use of force to prevent commission of offence

27. Every one is justified in using as much force as is reasonably necessary

(a) to prevent the commission of an offence

(i) for which, if it were committed, the person who committed it might be arrested without warrant, and

(ii) that would be likely to cause immediate and serious injury to the person or property of anyone; or

(b) to prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a).

[207] The nature of this section was considered in R. v. Hebert, 1996 CanLII 202 (SCC), [1996] 2 S.C.R. 272, where at paragraph 10, Cory, J., made the following comments:

10 Similarly, s. 27 justifies the use of force which is reasonably necessary to prevent the commission of an offence. This section is of general application and the person asserting the justification need not be a peace or public officer or a member of a restricted class of persons. However, the section is clearly designed to permit an innocent bystander, who witnesses an offence being or about to be committed, to use force to prevent the offence from occurring. It would make no sense to classify a personal assault as the commission of an offence which triggers the use of s. 27. If this were the case, ss. 34 and 37 would be redundant. It obviously makes more sense to fit that sort of conduct under the part of the Code headed "Defence of Person", which includes ss. 34 to 37.

[208] Section 27 describes the type of justifiable force as, “as much force as is reasonably necessary to prevent the commission of the offence”. This phrase has been interpreted as importing a concept of proportionate force: R. v. Welsh, [2012] A.J. 754 at paragraph 109.

[209] The purpose of s. 27 is preventative in nature. The person who uses the preventative force must perceive firstly, that force is necessary to prevent the commission of an offence, for which the person who committed the offence might be arrested without warrant and, secondly, that immediate and serious injury is likely to be caused to the person or property he or she seeks to protect.

[210] An honest but mistaken belief that an offence, such as an assault, has occurred or is threatened will justify the use of force, if the belief is based on reasonable grounds: R. v. Grandin, 2001 BCCA 340 (CanLII), [2001] B.C.J. No. 973 (BCCA), applied in R. v. Sangha, [2005] B.C.J. No. 2143 at paragraph 37.

[211] It must be reiterated that the Crown has the onus to establish beyond a reasonable doubt that s. 27 does not apply as a defence: R. v. Michaud, [2006] A.J. No. 1247 at paragraph 42.

(v) Proportionate Force

[212] What constitutes proportionate force was defined by Wood J.A. in R. v. Kandola (1993), 80 CCC (3d) at page 488, paragraph 23, as follows:

23 It is important to note that it is the force itself, and not the consequence of the force used, which is justified if the limiting conditions of the statute are met. The only consequences of the application of force in self defence, which are specifically mentioned in the statute, are death and grievous bodily harm. Those consequences are relevant only to the extent they are intended.

[213] Wood J.A. also noted at page 489 that, “… force which is so recklessly applied in self defence as to be excessive, will be unnecessary force and by that finding the defence will fail”. However, Wood J.A added that an accused is not expected to weigh to a nicety the exact measure of necessary defensive action.

[214] The determination of whether the force applied is reasonable has both a subjective and objective component. The subjective component is whether the force applied was necessary. The objective component is whether the belief of the accused when applying the force was reasonable: Welsh, supra at paragraphs 113 and 115.

(vi) Credibility and Reliability

[215] In R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at page 758, Cory J., writing for the majority, formulated a three-step approach for instructing a jury on reasonable doubt with regard to the credibility of an accused who testifies:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[216] Wood J.A., in R. v. H. (C.W.) (1991), 1991 CanLII 3956 (BC CA), 68 C.C.C. (3d) 146, at page 155, considered an additional instruction:

… I would add one more instruction in such cases, which logically ought to be second in the order, namely: “If, after a careful consideration of all the evidence, you are unable to decide who to believe, you must acquit.”

[217] The finding of a lack of credibility on the part of an accused does not equate to proof of his for her guilt beyond a reasonable doubt. Even if a trier of fact does not believe the accused, the Crown must still prove all of the essential elements of a criminal offence beyond a reasonable doubt: R. v. Feng, 2014 BCCA 71, at paragraph 46.

(vii) Impact of Photographic and Videographic Evidence

[218] In R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] S.C.J. No. 122, the Supreme Court of Canada considered the evolution of the use of audio and videotape evidence in Canada. The Court recognized that if the videotape evidence is of a good quality, it can be useful in giving a clear picture of events and identify perpetrators involved in criminal activity.

[219] The Court established the criteria for the admission and relevance of videotape evidence at paragraph 28 as follows:

28 Once it is established that a videotape has not been altered or changed, and that it depicts the scene of a crime, then it becomes admissible and relevant evidence. Not only is the tape (or photograph) real evidence in the sense that that term has been used in earlier cases, but it is to a certain extent, testimonial evidence as well. It can and should be used by a trier of fact in determining whether a crime has been committed and whether the accused before the court committed the crime. It may indeed be a silent, trustworthy, unemotional, unbiased and accurate witness who has complete and instant recall of events. It may provide such strong and convincing evidence that of itself it will demonstrate clearly either the innocence or guilt of the accused.

[220] The Court also explained how a trier of fact should weigh videotape evidence at paragraph 29 as follows:

29 The weight to be accorded that evidence can be assessed from a viewing of the videotape. The degree of clarity and quality of the tape, and to a lesser extent the length of time during which the accused appears on the videotape, will all go towards establishing the weight which a trier of fact may properly place upon the evidence. The time of depiction may not be significant for even if there are but a few frames which clearly show the perpetrator that may be sufficient to identify the accused. Particularly will this be true if the trier of fact has reviewed the tape on several occasions and stopped it to study the pertinent frames.

[221] Since 1996, videographic and photographic technology has advanced exponentially, with videotape technology now a thing of the past. We have become a digital society in which personal devices are used daily to record events and to instantly transmit those recorded events to others. The photographic and videographic evidence in this case was largely reproduced from photographic and videographic data that was forwarded to the Vancouver Police.

[222] I had the opportunity throughout the trial to view the photographic and videographic evidence on a high quality computer monitor mounted on the bench. I also had the opportunity to view this evidence on a widescreen high-definition television mounted in the courtroom. Much of the videographic evidence also had an audio component.

[223] In preparing this judgment, I was able to view the photographic and videographic evidence in my chambers through the use of a state-of-the-art laptop computer and monitor. I was able to dissect actions depicted in the videographic evidence frame by frame.

[224] Throughout the trial and in my deliberations, I was impressed with the clarity and quality of the photographic and videographic evidence. However, I have cautioned myself that the photographic and videographic evidence forms only one component of the evidence tendered in this trial.

[225] In R. v. Sangha, [2005] B.C.J. No. 2143, (upheld on appeal, 2007 BCSC 1923) Rounthwaite, P.C.J., cautioned herself in relation to the approach to weighing and assessing videotape evidence where there may be different perceptions formed by an individual in a chaotic situation. At paragraph 14, she had this to say:

14 While I found portions of the videotape evidence helpful, I have used caution in assessing it. The care recommended by the Supreme Court of Canada in R. v. Nikolovski (1996), 1996 CanLII 158 (SCC), 111 C.C.C. (3d) 403 when judges use videotaped evidence for identification should also be used in a case like this one. I bear in mind that observations made when one is dissecting actions frame by frame on "film" may be very different from perceptions formed when one is a participant in the thick of chaotic action.

(Emphasis Added)

ANALYSIS

(i) Was there an Unlawful Assembly and Riot on June 15, 2011?

[226] In cross-examination, Barahona testified that though he was in the thick of things, he did not know if there was a riot taking place around him that night; rather, it was his opinion that people around him who were throwing rocks, bottles, damaging property, and fighting were simply acting “crazy”. As to why these people were “crazy” he testified that, “They were just mad ‘cause they lost. They were angry, upset”. (Transcript, February 11, 2014, p. 20, L. 11 and 12).

[227] The Staff Sergeant had considerable experience in dealing with conduct against public disorder. He gave detailed testimony about the events occurring in the downtown core while the Game was underway and the events that developed after the Game. He testified that as early as 7 PM, a police service car was on fire at the Live Site. He testified that this fire was a, “textbook trigger incident for a riot”.

[228] The Staff Sergeant further testified toward the conclusion of the Game, crowds of people were flowing toward the Live Site and, in his opinion, this crowd became dangerous in relation to police officer safety. Based upon his experience he was of the opinion that a riot was underway.

[229] Fiamengo gave detailed testimony as to what was taking place around the Bay after the Game. He described a newspaper box being thrown through the window of the Bay along Seymour Street. He described other windows of the Bay being broken, rioting people acting in a frenzy, cars along Seymour Street being damaged and fights breaking out.

[230] Fiamengo testified that the Bay was subject to a full lockdown at this time and frightened employees and customers were evacuated to an upper floor. In addition, he testified that he armed himself with a hammer and two other loss prevention officers armed themselves with fire extinguishers in an effort to scare rioters away from entering the Bay.

[231] Fiamengo testified that he saw the man in the white Canuck jersey and Mackay throwing their arms out to establish a human barrier between themselves and the rioting crowd outside of the Bay. He described the rioting crowd outside of the Bay as “very hostile” and recalled that some rioters were throwing shards of glass from the broken windows of the Bay at both himself and the other loss prevention officers.

[232] Fiamengo testified that rioters were entering the Bay and were looting merchandise. He described the overall scene as comparable to a, “complete war zone”.

[233] Seskin testified that when he was in the riot zone after the Game, he observed a car on fire in a parking lot, people screaming and jumping up and down, and property being damaged. He described people around him as “aggressive”. He described the incident involving Mackay as a “swarming”.

[234] As noted in the Overview Of The Riot section of this judgment, Mackay thought it was “important” to try to protect the Bay because he thought it was, “disgraceful what was happening” around him. Mackay conceded that the consumption of alcohol impacted his judgment. Indeed, on reflection, he testified that what he did in trying to protect the Bay was unwise.

[235] I do not find that Mackay in any way embellished or exaggerated his evidence either in direct examination or cross-examination. He told the Court what happened in a matter of fact manner and his testimony respecting what he observed taking place around him was consistent with photographic and videographic evidence. I found Mackay’s un-interrupted narrative describing what unfolded when the alleged assault took place, at paragraph 53 of this judgment, to be compelling.

[236] I accept Mackay’s testimony that when he grabbed the pole that it appears it was thrust at him by the person in a blue Canuck jersey. I accept his testimony that he went into the crowd with the intent of pushing the person in the blue jersey and others away from the Bay. I also accept the evidence of Mackay that his adrenaline was elevated at the time of the incident and his judgement impacted by alcohol.

[237] While Mackay was obviously unable to say what was taking place behind him when he went into the crowd with the pole, I accept his testimony as consistent with the photographic and videographic evidence, including his testimony that he took a “few shots”, including “blindside” shots, to the back of his head. If anything, Mackay tended to minimize the dramatic scene that unfolded as he went into the crowd with the pole.

[238] I find that the Staff Sergeant, Fiamengo, Seskin and Mackay testified in a straightforward manner. Their testimony was not undermined in cross-examination. I find that the Crown has established that the Staff Sergeant, Fiamengo, Seskin and Mackay were credible, reliable and trustworthy beyond a reasonable doubt with respect to their observations of what was taking place in the downtown core on June 15, 2011, both during and after the Game.

[239] I am mindful that I must exercise caution in assessing the video evidence in this case. I find that the photographic and videographic evidence is credible, reliable and trustworthy beyond a reasonable doubt in support of the Crown’s theory that a riot was taking place on June 15, 2011, in the City of Vancouver.

[240] I conclude that the evidence overwhelmingly establishes, beyond a reasonable doubt, that on June 15, 2011, there was an assembly of three or more persons in the downtown core of Vancouver who were participating in a riot in an atmosphere of force or violence which disturbed the peace tumultuously.

(ii) Did the Accused Participate in the Riot?

[241] Under this heading, events surrounding the alleged mischief allegation against MacDonald, and events surrounding the alleged assault of Mackay involving the four accused are inextricably linked to the riot. It logically follows that if MacDonald is guilty of mischief or of the assault of Mackay, or both, then such a finding or findings would also establish his participation in the riot.

[242] Likewise, the same logic applies to Leonati, Barahona and Kangles with respect to the alleged assault of Mackay. If there is a finding that Leonati, Barahona or Kangles are guilty of the assault of Mackay, that finding would also establish their participation in the riot.

Leonati

[243] It was submitted by Leonati that the Court should find a reasonable doubt that the statement he gave to the police was reliable. Leonati submitted that he was overborn by the police through the interview process and simply “caved in” and confessed when confronted with the suggestion that he kicked Mackay when he was on the ground.

[244] In addition, Leonati submitted that the photographic and videographic evidence was unreliable in linking him to the Mackay incident or in linking him to the riot generally.

[245] In relation to the statement given to the police by Leonati, I have had the opportunity to review the transcript of the interview and to observe the audio visual recording of that interview. I find that Leonati was engaged with the police and was responsive to questions put to him. He did not appear to be tired, ill or under the influence of alcohol or drugs.

[246] The fact that he continuously denied any involvement indicated that his thought process was alert and he was looking for ways to avoid being implicated in the incident with Mackay. As the police unfolded the photographic evidence they had in their possession, I find that Leonati viewed the evidence and that he appeared interested to find out what exactly they had against him.

[247] I find that when it became clear that Leonati was inescapably linked to the assault of Mackay, he confessed. I find that this confession was not because he “caved in”, but more likely because he realized there was no other explanation for his conduct.

[248] The fact that he took a considerable amount of time in preparing a letter of apology to Mackay, which he signed off, “Sincerely, David Leonati”, suggests that the letter of apology was more than a rambling thought process. The letter of apology was carefully drafted and the language was clear on its face.

[249] I find beyond a reasonable doubt that the confession of Leonati and his letter of apology is credible, reliable and trustworthy evidence.

[250] I have carefully reviewed the videographic evidence and photographic evidence in which Leonati is observed. It is noteworthy that Leonati was wearing a distinctive hoodie, and thus, he was easily identified in the crowd both during the Mackay incident and in other locations during the riot.

[251] I find from the videographic evidence, in particular the YouTube video, that

Leonati was not only present during the incident involving Mackay, but he was watching what taking place as Mackay fell to the ground. I find that for no apparent reason, Leonati elected to kick Mackay in the head area while Mackay was covering his head in a foetal position. Leonati can also be identified kicking Mackay in the head area from the photographic evidence that I viewed.

[252] In addition, I find that Leonati was in the riot zone along Seymour Street in which there were damaged cars, people were looting the Bay and fire alarms ringing. As late as 9:25 PM, sometime after the incident with Mackay, Leonati can be observed walking in this location and becoming involved in a confrontation with a person or persons.

[253] I find the videographic and photographic evidence depicting the actions of Leonati to be credible, reliable and trustworthy evidence beyond a reasonable doubt.

[254] I find that the Crown has established beyond a reasonable doubt that Leonati is responsible for an unlawful and unjustified assault upon Mackay by kicking him in the area of his head.

[255] I also find that the Crown has established beyond a reasonable doubt that Leonati was a participant in the riot on June 15, 2011.

Barahona

[256] Barahona testified that on June 15, 2011, he had not consumed any alcohol nor was he under the influence of any drugs. Though apparently unaffected by alcohol or drugs, Barahona qualified much of his evidence in cross-examination with expressions like, “probably”, “I think so”, “I do not remember”, and “I guess”. At one point in cross-examination it was put to Barahona that he really did not have a clear recollection about “anything”, in the following exchange:

THE COURT: You're running southbound on Seymour at this point?

A Probably went to Georgia.

MR. FLANNIGAN:

Q You went to Georgia?

MR. GABLE: Probably?

A Yes.

MR. FLANNIGAN:

Q Probably. Are you certain about anything, Mr. Barahona Villeda?

A Well, I don't remember that much from that day.

Q Okay. So it's fair to say that your memory's affected by the passage of time? Is that fair to say?

A Yes.

Q Yes. So you don't remember a lot of things very clearly?

A That's right.

Q Is that fair to say?

A That's right.

(Transcript, February 11, 2014, Page 43, Lines 35-47; Page 44, Lines 1-17)

[257] I found Barahona’s lack of clarity and recollection to be problematic. I also found it problematic that Barahona would take a great deal of time considering answers to questions put to him in cross-examination, as it created the impression that he was trying to tailor his testimony to put a more favourable spin on his answers.

[258] In addition, I found it troublesome that on many occasions Barahona’s testimony simply did not make sense. For example, Barahona consistently maintained that he was unaware a riot was taking place in the core of the city after the Game on June 15, 2011. He further testified that he had no idea that a riot had ever taken place until several months after the Game when people phoned him telling him that his face was on a flyer as a person of interest in relation to the riot.

[259] Videographic footage placed Barahona in the area of Seymour Street, Granville Street, and West Georgia Street in which he is seen to be in the midst of crowds of people, many of whom are damaging property and looting. Barahona can be seen taking photographs of what was taking place around him.

[260] When it was put to him in cross-examination that he was taking photographs because what saw was “fascinating”, Barahona denied any such fascination and told the Court that he was taking pictures for “evidence” to give to the police in the following exchange:

Q And you're so -- you're finding it fascinating, aren't you?

A No. I'm just taking pictures.

Q Well, then why are you taking pictures, if it's not fascinating?

A For -- I don't know -- for evidence.

THE COURT: Sorry?

A Evidence.

MR. FLANNIGAN:

Q Evidence. Evidence of what?

A Of what people doing.

Q Evidence of a riot?

A I didn't know what is that.

Q There's no way I'm going to get you to say you knew there was a riot that night, is there?

A No. I didn't know there was a riot.

(Transcript, February 11, 2014, Page 20, Lines 27-42)

[261] When it was then put to him that he must have given those photographs to the police when he turned himself in, Barahona testified that he was unable to do so because he had lost his cell phone, “a couple of months later”.

[262] It did not make sense that he was taking photographs for evidence purposes when he did not even know what was taking place around him on June 15, 2011. In addition, Barahona testified that even before he went to the police he was aware that the police were asking people to submit photographs and videos to them after the riot. With that knowledge in mind, Barahona must have known that a riot took place on June 15, 2011.

[263] It was put to Barahona that some of the videographic footage demonstrated that at times he was cheering, smiling and jumping in areas where windows were being broken, looting was taking place, and people were damaging other property including newspaper boxes and cars. Though reluctant, when pressed, Barahona conceded that at times he could have been smiling and at times he was jumping. He denied that he ever cheered.

[264] On this point of cheering, Barahona was played some CCTV footage which appeared to depict Barahona cheering and enjoying himself. It was put to Barahona that he was jumping, cheering and taking photographs in a celebratory manner in the following exchange:

Q Yes. And you saw two men throw -- looked like a newspaper box into a window?

A Yes.

Q Is that right?

A Yes.

Q And then you started to jump; is that right?

A Yes.

Q I'm just going to go back to that. 35:03:02. Just go through this. Sorry. It looks like you're yelling. You're raising your arms and it looks like you're yelling; is that right?

A Yes.

Q So I'm going to ask you again, sir, you were cheering them breaking the window?

A Probably, yeah.

Q Yes. Why didn't you tell me that before, sir?

THE COURT: Tell me that.

MR. FLANNIGAN:

Q Why didn't you tell the court, sorry, before? I asked you that a number of times. You told the court you were just jumping. You had no explanation.

A 'Cause I'm looking at myself, right now there on the video.

Q You were celebrating what was going on, right?

A I did celebrate that thing there. I can see there.

Q That's why you're taking pictures too?

A I just want to have some pictures.

(Transcript, February 11, 2014, Page 50, Lines 42-47; page 51, Lines 1-23)

[265] Barahona testified that he was right in front of the Bay at the time that Mackay grabbed Garcia and threw him into the crowd. Barahona denied that he was upset when Garcia was thrown into the crowd.

[266] Barahona testified that he saw Mackay grab a pole and push his way into the crowd with a kayak-like motion. Barahona testified that he was concerned for his welfare and also for the welfare of his friend Garcia as he did not want him to get into trouble.

[267] In relation to the alleged assault, Barahona testified that he was behind when he tried to grab Garcia. He testified he was then pushed from behind by someone. Barahona testified that he may have accidentally come into contact with Mackay when he was pushed from behind.

[268] Barahona was taken by Crown Counsel frame by frame through the YouTube video of the Mackay incident. The total real time from the moment Mackay grabs the pole and proceeds into the crowd to when he was taken to the ground was just under nine seconds. Barahona testified that events unfolded very rapidly when he was involved with Mackay.

[269] Several frames of the YouTube video were shown to Barahona in which it was suggested that he was behind Mackay with his elbow cocked and his hand in a fist, and that he then struck the back of Mackay’s head in a forward motion. Barahona asked to view those frames a second time. He agreed that it appeared he did strike Mackay, but denied that he used a fist.

[270] Barahona testified that at the end of the incident with Mackay, all he was thinking about was to, “leave the scene; I do not want to be there”. Barahona testified that while he wanted to get away from the area, he did not go home as he was with his friends. It would appear from his testimony that Barahona continued to hang out in the downtown core for at least an hour after the incident involving Mackay.

[271] I agree with the submission of Barahona that one’s perception of what was taking place on the ground on June 15, 2011, must take into account the surrounding chaos. There were many people in the riot zone who were simply caught up in the rioting activity but were not participants in the riot.

[272] I also agree with the submission of Barahona that care must be taken to not place undue weight on the photographic and videographic evidence.

[273] I reject the testimony of Barahona in relation to his assertion that he was not aware a riot was in progress. Indeed, I find it incredible that Barahona did not realize that a riot was taking place around him on June 15, 2011. One would have to be completely disconnected from reality to not realize that a riot was taking place after the Game.

[274] I find that Barahona’s credibility was significantly undermined in cross-examination. Through cross-examination he essentially confirmed that at times he was: running; jumping; cheering; and taking pictures and videos of damage taking place around him. I find it unbelievable that Barahona was wandering around various locations of the downtown core documenting, for “police purposes”, the activities of people damaging property. I find that Barahona traveled through various locations over an extended period as an active participant in the riot.

[275] As such, I find that Crown has established beyond a reasonable doubt that Barahona was a participant in the riot on June 15, 2011, and intended to take part in the riot.

[276] I find that Barahona’s testimony in relation to the incident involving Mackay to be unreliable. Barahona was front and center at the Bay when Mackay grabbed Garcia and threw him into the crowd. I find that when Mackay had the pole in his hands and went into the crowd, he posed no immediate threat to Barahona. I find the YouTube video depiction of the incident credible and reliable in establishing that Barahona was to the left of Mackay and that after Mackay went into the crowd Barahona pursued Mackay.

[277] I reject Barahona’s testimony that he was concerned about Garcia’s welfare. That testimony was inconsistent with the YouTube video which clearly established that Barahona pursued Mackay and on two occasions struck Mackay in the back of his head with his fist while reaching over Garcia. I do not find that this contact was accidental or unintended.

[278] Consequently, I find that the Crown has established beyond a reasonable doubt that Barahona is responsible for an unlawful and unjustified assault upon Mackay.

MacDonald

[279] MacDonald testified that he was 19 years of age on June 15, 2011, that he was about 5’9” in height and he weighed approximately 150 pounds. On Game day, he went downtown with his girlfriend to watch the Game at the Live Site. After the Game, he recalled that the two of them headed west along West Georgia Street towards Seymour Street.

[280] MacDonald described people at the Live Site as being unhappy about losing the Game. He testified the crowd’s mood changed as he went along West Georgia Street from being unhappy to angry. MacDonald saw property being damaged, he observed smoke in the air and recalled many people were chanting, “Fuck Boston”.

[281] As the mood of the crowd changed, it appears that MacDonald became caught up in the mood swing. He testified that he was in the area at the front of the Bay where Mackay and the man in the white Canuck jersey were trying to protect the Bay from being damaged.

[282] MacDonald testified that he saw “a kid” break a window of the Bay, as a result of which MacDonald became, “caught up in the moment” and threw a sign through an already a broken window. He described his action as a, “bad decision obviously”.

[283] He confirmed in cross-examination that Mackay was off to his right at the time he threw the sign through the window. This was consistent with the YouTube video, which showed Mackay a few feet to the right of MacDonald when he threw the sign.

[284] In closing submissions MacDonald took the position that he was not guilty of the mischief charge. He submitted that Crown had not established beyond a reasonable doubt any monetary value in relation to this broken window. In the alternative, it was argued that if there was any damage that the maxim de minimus curat lex ought to apply as the consequence of throwing the sign through an already broken window would be at best slight or trifling.

[285] I find that monetary value is not necessary to establish the case against MacDonald in relation to the mischief charge. Mischief to property can be established if the property was rendered dangerous pursuant to s. 430 (1)(b) of the Criminal Code.

[286] In direct examination, MacDonald testified that the Bay window was already broken when he threw the sign. In cross-examination, Crown Counsel played some video footage in which MacDonald could be seen throwing the sign through the Bay window. In the following exchange in cross-examination, MacDonald agreed that he broke some glass:

Q You heard that banging noise?

A That was the glass breaking.

Q Yes, and that's you right there, isn't it?

A Yes.

Q Yeah, so you did break some glass, didn't you?

A Yeah, I said I broke some glass.

Q Yeah. Well, to be ‑‑ actually, in your evidence in chief, you had said you had thrown it into the store when the windows were broken?

A Yeah, well, if ‑‑ yeah, if you want to get technical.

Q But then when the court asked you, you said you'd ‑‑ there was broken glass and you'd broken some more?

A Yeah, well, that's what I meant initially.

(Transcript, February 17, 2014, Page 90, Lines 1-15)

[287] Fiamengo testified that some of the rioters outside of the Bay were throwing shards of glass from the broken windows at himself and the other loss prevention officers in the Bay. I find that the evidence of Fiamengo was credible, reliable and trustworthy beyond a reasonable doubt in establishing that the breaking of the windows of the Bay rendered those windows dangerous. Shards of glass were being used as weapons which could have resulted in injury to Fiamengo and the other loss prevention officers.

[288] This potential harm from the shards of glass being thrown at the loss prevention officers cannot be described as minimal or trifling. I accept the testimony of the Fiamengo when he described the scene outside of the Bay as a “war zone”.

[289] I find that the Crown has established, on all of the evidence, beyond a reasonable doubt the requisite elements of the offence of mischief against MacDonald.

[290] In relation to the allegation that MacDonald participated in a riot, I have found that he intentionally threw the sign through the window at the Bay as the riot was in full progress around him. He agreed that he was caught up in the moment of the riot in the following exchange in cross-examination:

Q What I'm suggesting is you hit the window?

A It ‑‑ well, it hit that ‑‑ the frame between the other window and that window.

Q Okay.

A And kind of bounced back and then on the second throw, I just threw it through.

Q You were trying to damage the Bay, right ‑‑

A Mm ‑‑

Q ‑‑ at that point?

A Not so much as damage, it was just to throw something into it, like I ‑‑ in that specific moment my mindset wasn't to ‑‑ to completely damage the Bay, right?

Q You ‑‑ you just wanted to take part in a riot?

A Well, I got caught up in the moment and ‑‑

Q Yeah.

A ‑‑ I threw something, I guess, so.

Q Twice, twice you hit ‑‑

A Twice ‑‑

Q ‑‑ the window area?

A Twice hit, not throw.

Q Yeah, so you're taking part in this riot, right?

A Um, well, you could say that, yes.

(Transcript, February 17, 2014, Page 87, Lines 4-26)

[291] In closing submissions, MacDonald took the position that he was a, “person only mildly engaged in the chaos around him”. I do not accept this submission. I find that MacDonald was actively engaged in the chaos around him, and by his conduct in damaging the window of the Bay, he would have incited and encouraged others to participate in the chaos. I find the Crown has established beyond a reasonable doubt that MacDonald was participating in the riot.

[292] Also in closing submissions, MacDonald took the position that self-defence and defence of a third party were more than “bare assertions”. It was submitted by MacDonald that the YouTube video of the incident, supported by his own evidence, would lead to a conclusion that the Crown failed to establish beyond a reasonable doubt that self-defence and defence of the third party were not available to MacDonald.

[293] I do not accept MacDonald’s submissions. I find that Crown has established beyond a reasonable doubt that MacDonald did not exercise proportionate force, or was reckless to the point of being excessive in the application of force directed at MacKay. Therefore, self-defence or defence of a third party was not available to MacDonald, either pursuant to the old self-defence or defence of third party provisions or the new March 2013 amendments. I make this finding for the following reasons.

[294] The YouTube video established that MacDonald was positioned with his girlfriend to the left of Mackay, when the man in the blue Canuck jersey thrust a pole toward Mackay. At that point, Mackay grabbed the pole and used it to push that individual into the crowd on West Georgia Street. Though MacDonald testified that he was concerned about that pole coming into contact with his girlfriend, the YouTube video established beyond a reasonable doubt that Mackay was well past MacDonald and his girlfriend when MacDonald elected to pursue Mackay. Any threat to the girlfriend was no longer existent.

[295] MacDonald also testified that he used force against Mackay to disarm him in an effort to prevent any harm or injury to third parties. MacDonald came from behind Mackay and struck him with a closed right fist in the back of his head and lower body. The YouTube video clearly established beyond a reasonable doubt that when MacDonald struck Mackay in his right lower body that the pole was out of Mackay’s hands and Mackay was going to the ground with his hands covering his head.

[301] I find MacDonald abandoned his girlfriend in the crowd and pursued Mackay during the course of which, in a sustained and systematic way, he struck Mackay twelve times. Of those blows, seven were to the back of Mackay’s head, two were blows to the upper shoulders and there were, “three good shots” to Mackay’s right lower back. I do not find these actions had anything to do with protecting any identifiable third party in need of protection.

[296] When MacDonald testified that he got, “three good shots” in on Mackay, I had the clear impression that MacDonald was boasting about those, “good shots”. Without question the lower body blows were precise, powerful and designed to cause harm. This was not the exercise of proportionate force.

Kangles

[297] It was put to Kangles by Crown Counsel that after the Game he proceeded into the downtown core with his friends not for the purpose of getting back to his car, but rather, because he wanted to get a closer look at the riot. Kangles denied any such purpose and while it was put to him that there were numerous opportunities for him to leave the area of the riot by taking Canada Line or SkyTrain, he testified that crowds of people at the various stations made such an exit impractical.

[298] Kangles testified that when he neared the area of the Bay going westbound on West Georgia Street he could hear glass smashing, he saw people fighting, fire alarms were going off and smoke was observed. Kangles testified that the number of people around him as he travelled westbound on West Georgia Street was in the thousands.

[299] Kangles recalled that he was in the middle of West Georgia Street in front of the Bay when he heard a loud noise of “smashing” glass coming from his right side. The loud smashing noise drew his attention and as he looked to his right he saw, “a crowd of people, bobbing heads, people cheering”. He testified that he was able to see a pole through the crowds of people that he observed to be waving in a, “kayaking motion”.

[300] At that point, Kangles testified that he could not see who was holding the pole. However, his attention was drawn to this waving pole and, in response, he moved closer toward the Bay until he had a, “clear view of what I thought to be was a person with a weapon swinging it in a crowd”.

[301] Kangles testified that he immediately moved toward Mackay to disarm him. He denied seeing anyone hitting Mackay as his, “focus was on this pole and where, where it was going”.

[302] He testified that he recalled coming into contact with Mackay by grabbing his

head with his right hand with the intent to pull Mackay to the ground. It was his recollection that he believed Mackay still had the pole in his hands when he went to the ground. When Mackay was on the ground Kangles recalled that Mackay was pepper sprayed or hit by Mace.

[303] Kangles denied that after Mackay went to the ground that he kicked or attempted to kick Mackay.

[304] Kangles testified that he was not concerned about the welfare of Mackay after he went to the ground as his principal concern was disarming Mackay. He also testified that when Mackay was on the ground that he, Kangles, came into contact with the pepper spray or Mace by inhaling it and getting some of that substance on his shoes. Kangles described his state of mind at that time to be more concerned with his own well-being because of the pepper spray or Mace.

[305] Kangles agreed that he did not know the full context of what was taking place at the time Mackay was waving the pole in a kayaking motion in the crowd of people. Nevertheless, from his perspective, he thought he was doing the right thing by taking this “weapon” away from Mackay.

[306] Kangles testified that he was not personally threatened but in that “split-second” when he was processing what was taking place in the crowd, he was more concerned about the well-being of people that were around him. As he put it, he did not want to see, “some person attacking a group of people … that is what went through my mind at that time”.

[307] Kangles agreed with the suggestion of Crown Counsel that he did not know anyone in the crowd when Mackay was waving the pole. He also agreed that he did not know what led up to Mackay coming into the crowd with the pole. Kangles testified his actions were based on the limited information that he was able to process at that time.

[308] Crown Counsel took Kangles through the YouTube video frame by frame in relation to his interaction with Mackay. It was put to Kangles that his own perception of his interaction with Mackay was at odds with what was depicted in the YouTube video.

[309] Kangles agreed with this suggestion, but explained that the angle of the YouTube video differed from his angle of perception. In addition, Kangles explained that viewing the YouTube video frame by frame in slow-motion did not accord with the events on the ground in relation to his interaction with Mackay, as they were almost instantaneous.

[310] Kangles denied that the YouTube video appeared to depict that he kicked Mackay on the ground. Kangles agreed that there was movement of his leg when Mackay was on the ground but explained that he was losing his balance and was getting pushed from behind. He testified that at no time was there any intent to kick anybody.

[311] I have reviewed the YouTube video both in real time and in slow-motion frame by frame with respect to the interaction between Kangles and Mackay. I find that the interaction between Mackay and Kangles takes place over five to seven seconds. At the time of this interaction there was a large tumultuous crowd of people around Mackay. I find that the scene was chaotic.

[312] Once Mackay was on the ground the YouTube video would appear to depict Kangles moving his right leg in a kicking motion toward Mackay. The YouTube video also appears to show that at about that time of the leg movement that someone grabbed the back of Kangles’ T-shirt.

[313] Kangles was pressed by Crown Counsel in cross-examination that he kicked Mackay. Kangles denied that he kicked Mackay or that he intended to kick anyone in his interaction with Mackay. I note that the whole interaction lasted for a matter of seconds.

[314] The YouTube video, though suggestive that Kangles either kicked or attempted to kick Mackay, was not clear and therefore caution must be exercised in assessing it in relation to the purported kick.

[315] On the issue of whether or not Kangles kicked or attempted to kick Mackay, I am not prepared to disbelieve Kangles and, therefore, his evidence would establish a reasonable doubt that he kicked or attempted to kick Mackay. In addition, the video evidence is equivocal in relation to the purported kick and therefore would establish a reasonable doubt that Kangles kicked or attempted to kick Mackay.

[316] Kangles asserted that he was defending other persons “under his protection” by operation of s. 37(1) of the Criminal Code prior to the 2013 amendment. In the event the 2013 amendment was applicable to this case, Kangles submitted that he had reasonable grounds to believe that Mackay’s actions amounted to a threat of force to a third-party by operation of s. 34(1) of the Criminal Code.

[317] In addition, Kangles asserted that he was justified in using reasonable force

force against Mackay to prevent the commission of the offence of assault by operation of s. 27 of the Criminal Code.

[318] Kangles has admitted that he grabbed Mackay by the head with the intention of pushing him to the ground for the purpose of disarming him. I do not find that his use of force was disproportionate or reckless to the point of being excessive.

[319] Barahona and MacDonald were both physically in a position in front of the Bay where it was readily observable that Mackay was trying to prevent people from damaging the Bay. As such, when Mackay grabbed the pole and used it as a barrier to push people away from the Bay, that action was in clear view of both Barahona and MacDonald.

[320] The evidence establishes that Kangles would have had a far different perspective. I accept his evidence that he was toward the middle of West Georgia Street when he heard a loud smashing noise and then saw a pole being waved in a kayak-like motion in a crowd of people. It was only as he moved forward to investigate what was going on that he saw Mackay with the pole.

[321] Kangles testified that it was at this point that he made the decision to try to disarm Mackay as it was his belief that Mackay was committing an assault with the pole. He also testified that he did not want to see Mackay hurt anyone with the pole.

[322] As noted in the legal framework, courts have taken the approach that the words “under his protection” with respect to s. 37 of the Criminal Code are to be liberally construed. As was noted in Roberts, supra, at paragraph 68, “… In its broadest sense, it means anyone who requires protection which the accused may be able to provide …”.

[323] While Kangles did not know what precipitated the events that led to Mackay coming into the crowd with the pole, there was no question that a fully involved riot was underway. Property was being damaged, smoke was in the air, fire alarms ringing and fights were breaking out.

[324] In this chaotic atmosphere a court must be cautious in interpreting individual states of mind. Perhaps Kangles should have taken more time to assess what was taking place when he saw Mackay with the pole before he decided to intervene. However, it was clear from the YouTube video that it took approximately twelve seconds from the time Mackay grabbed the pole and went into the crowd to when he was taken to the ground. Of the approximate twelve seconds, five to seven seconds involved Kangles.

[325] While the actions of Kangles can be examined on a frame by frame basis by viewing the YouTube video, in reality that is not how people make decisions. A variety of factors may influence an individual’s decision-making. When an individual makes a decision to respond in a certain manner, where timing is a critical feature, that individual may have mere seconds to process information and make a decision.

[326] In this case, Kangles had a few seconds to process information and reach a decision as to how he should respond when he observed Mackay with the pole. It is his perception of the events as they unfolded that is a critical feature. I adopt the comments of Rounthwaite, P.C.J., in Sangha, supra, at paragraph 14, as apposite:

… I bear in mind that observations made when one is dissecting actions frame by frame on “film” may be very different from perceptions formed when one is a participant in the thick of chaotic action.

[327] I have reservations concerning the credibility and the reliability of the testimony of Kangles. However, with those reservations in mind, and considering all of the evidence, I am satisfied that the defence of a third-party under s. 37 of the Criminal Code as it was prior to March 2013 is available as a defence for Kangles to justify his assault of Mackay. In the event the present s. 34 Criminal Code provisions are applicable, I would also find that based upon the evidence of Kangles, and considering all of the other evidence, that the defence of a third-party is available as a defence for Kangles to justify his assault of Mackay.

[328] Kangles also advanced the defence of the use of force to prevent commission of an offence pursuant to s. 27 of the Criminal Code. Kangles testified that he believed Mackay was committing an assault and that he felt it was necessary to intervene to prevent people from being hurt by Mackay’s use of the pole.

[329] In the context of the chaotic scene around him it would be a reasonable perception that when Kangles first saw Mackay waving the pole in a kayak-like motion, that an assault was taking place. As a matter of law, an individual can be arrested for assault in progress absent a warrant. In relation to the wording in s. 27 of the Criminal Code, it is only required that this person, “might be arrested without warrant”.

[330] Kangles’ fear that Mackay’s use of the pole could cause harm to people must also be examined from his perspective. In the brief seconds that Kangles had to process information in a scene of chaos, it was not unreasonable for him to believe that Mackay’s use of the pole was likely to cause harm to other individuals. This harm, I find, would extend to the belief that it would likely cause immediate and serious injury to someone on the receiving end of any impact by the pole.

[331] In approaching this issue I adopt my reasoning at paragraphs 325 and 326 of this judgment. I have reservations concerning the credibility and the reliability of the testimony of Kangles. However, with those reservations in mind, and considering all of the evidence, I am satisfied that the defence of the use of force to prevent commission of an offence pursuant to s. 27 of the Criminal Code is available as a defence for Kangles to justify his assault of Mackay.

DISPOSITION

[332] I am satisfied beyond a reasonable doubt that the Crown has established that Leonati, without justification, kicked Mackay in the head area when he was in a foetal position on the ground. This kick was purposeful and vicious. I find Leonati guilty of the assault upon Mackay. As a result of that assault, and his other actions in the downtown core on June 15, 2011, I also find that the Crown has established beyond a reasonable doubt that Leonati is guilty of participating in a riot.

[333] I am satisfied beyond a reasonable doubt that the Crown has established that Barahona, without justification, struck Mackay in the back of his head. Accordingly, I find Barahona guilty of the assault upon Mackay. As a result of that assault, and his other actions in the downtown core of June 15, 2011, I also find that the Crown has established beyond a reasonable doubt that Barahona is guilty of participating in a riot.

[334] I am satisfied beyond a reasonable doubt that the Crown has established that MacDonald committed mischief by damaging the window of the Bay on June 15, 2011. I am further satisfied beyond a reasonable doubt that MacDonald, without justification, viciously struck Mackay in his head, upper shoulders and lower body. I find MacDonald guilty of the assault upon Mackay. I also find that the Crown has established beyond a reasonable doubt that as a result of McDonald’s assault upon Mackay and the damage to the window of the Bay, he must also be found guilty of participating in a riot.

[335] In a criminal proceeding the onus rests upon the Crown to establish a case beyond a reasonable doubt. This extends to the requirement that the Crown establish beyond a reasonable doubt that a defence is not available to an accused person. Kangles has advanced defences that include defence of a third-party and the use of force to prevent the commission of an offence.

[336] I have found that while I have reservations respecting the credibility and the reliability of the testimony of Kangles, in assessing and weighing that evidence, along with assessing and weighing all of the other evidence, I am not prepared to reject his evidence. I find that the Crown has not met their burden in establishing beyond a reasonable doubt that the defence of a third-party or the defence of the use of force to prevent the commission of an offense would not apply to Kangles.

[337] Accordingly, I find Kangles not guilty of the assault upon Mackay. I also find that

the evidence does not establish beyond a reasonable doubt that Kangles is guilty of participation in a riot and he is therefore acquitted of that charge.

_____________________________

The Honourable Judge G. Rideout

Provincial Court of British Columbia

CORRIGENDUM - Released April 16, 2014

In the Reasons for Judgment dated April 14, 2014, the following change has been made:

[338] On page 81, paragraph 320, second sentence, the word “waived” should be replaced with the word “waved”. The sentence should now read as follows:

… I accept his evidence that he was toward the middle of West Georgia Street when he heard a loud smashing noise and then saw a pole being waved in a kayak-like motion in a crowd of people. …

[339] On page 82, paragraph 323, last sentence, the third comma should be replaced with the word “and”; and, the word “out” should be added to the end of the sentence. The sentence should now read as follows:

… Property was being damaged, smoke was in the air, fire alarms ringing and fights were breaking out.