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R. v. Castonguay, 2021 BCPC 315 (CanLII)

Date:
2021-12-29
File number:
261958-1
Citation:
R. v. Castonguay, 2021 BCPC 315 (CanLII), <https://canlii.ca/t/jlnkd>, retrieved on 2024-03-29

Citation:

R. v. Castonguay

 

2021 BCPC 315

Date:

20211229

File No:

261958‑1

Registry:

Vancouver

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

(Criminal Court)

 

 

 

 

 

REGINA

 

 

v.

 

 

YVES GERARD JOSEPH CASTONGUAY

 

 

 

 

 

 

REASONS FOR JUDGMENT

OF THE

HONOURABLE JUDGE H. DHILLON

 

 

 

 

Counsel for the Crown:

M. Crisp

Counsel for the Defendant:

M. Swartz

Place of Hearing:

Vancouver, B.C.

Date of Hearing:

December 29, 2021

Date of Judgment:

December 29, 2021


[1]         THE COURT:  These are reasons for sentence in the matter of Regina versus Yves Gerard Joseph Castonguay.

[2]         Mr. Castonguay is before the court to be sentenced.  He has entered a guilty plea to Count 2, which alleges that on April 2, 2020, while being motivated by bias, prejudice, or hate based on religion, race, colour, or national or ethnic origin, he did wilfully commit mischief by causing damage to the Chinese Cultural Centre, a building that is primarily used by an identifiable group for administrative, social, cultural activities or events, an offence contrary to s. 430(4.1) of the Criminal Code.

The circumstances of the offence

[3]         The facts which support the plea are set out in the agreed statement of facts, which are incorporated, by reference, in these reasons.  I first start by noting that, midafternoon on April 2, 2020, Mr. Castonguay went to the Chinese Cultural Centre.  With a black marker in hand, he approached the doorway of the David Lam Auditorium.  For a period of 10 minutes, he wrote onto several windowpanes a series of comments that were clearly visible to the public.  His message was meant to be seen by the public.

[4]         The words Mr. Castonguay used and the meaning he intended to convey by them supports his guilty plea to mischief to property.  He defaced the Chinese Cultural Centre with his racist diatribe, and this conduct was motivated by bias, prejudice, or hate towards persons of Chinese ethnic origin or descent.  The words that Mr. Castonguay used were morally reprehensible and should shock the conscience of the community.  They were despicable and hateful; they were full of venom and anger.  His messaging invoked the use of violence, calling for shooting of innocent persons simply based on their perceived race or ethnicity.  He demanded their forced removal and exclusion from Canada.

[5]         I hesitate to read into this record the vile statements made in writing by Mr. Castonguay.  Yet, in passing sentence that denounces such criminal conduct, it is necessary to provide the context for the punishment that will be imposed.  More specifically, Mr. Castonguay's words included the following messaging to the public:

         He embraced, wrongly, Hitler's extermination of the Jews as a means by which to stop persons of Chinese origin from coming to Canada.

         He wrote, wrongly, that people from Hong Kong were infected by the virus and were deserving of being killed and sent back from Canada to their place of birth.

         He referenced Canada as "our great, beautiful land Canada" and said, wrongly, that if Chinese persons were found they should be killed "just like Hitler did to the Jews".

         He used a racist word I will call the 'C' word, which is used as a slur in reference to persons of Chinese origin.

         He espoused not letting persons from Hong Kong into Canada, describing their entire category of persons as "no good".

         He said anyone who protects Chinese people or 'C' word should be shot "on the spot".

         He said 'C' word should be shot on the spot and driven out of Canada.

[6]         His markings were seen the next day by Fred and William Kwok, the directors of the Chinese Cultural Centre. They were deeply upset by them.  Fortunately, the writing was able to be quickly and inexpensively removed.  The words, in my view, were beyond shameful.  They were utterly contemptible.

[7]         The circumstances of Mr. Castonguay were put before the court.  Mr. Castonguay was born in 1974 and he is age 47.  He has lived for the last 10 years in the Downtown Eastside.  He had an unfortunately abusive and traumatic childhood, which is likely connected to his polysubstance use disorder.  He is on social assistance and has been unemployed for many years.  He has a longstanding relationship with a female partner, who is Aboriginal, and he appears to have integrated into her social community and circle.  He is reportedly addicted to multiple substances, including opioids, methamphetamine, and cocaine.

[8]         Mr. Castonguay has been assessed by psychologist Dr. Dylan Gatner, in a report dated November 8, 2021, and earlier by psychiatrist Dr. Mark Levy.  These reports provide comprehensive background information about Mr. Castonguay's level of functioning and challenges.  It is likely he does suffer some form of cognitive deficit, but it is unclear whether this is from trauma or from his longstanding substance use disorder.

[9]         There is a question about the accuracy of his self‑reporting, as a number of times his information, as provided to his assessors, has not been verified.  For example, he reports a head injury, which was not found on any hospital records searched by Dr. Levy.  His Aboriginal background, as stated to be on his mother's side, was not confirmed by his mother.  Dr. Gatner provided the opinion that his childhood trauma is a distal risk, in that his possible cognitive deficits appear less directly related to his offending at this time, based on the available data.

[10]      Mr. Castonguay provided a written and verbal statement to the court expressing his remorse for his actions.  He said he was simply repeating what he saw on the Internet and that he is not a racist.  He said that he is with an Indigenous woman and provided that as proof of his lack of racial bias.  He noted in his statement that his behaviour was wrong, and he said it was out of character.  He said that he is not a hateful person.

[11]      Mr. Castonguay has a long record of offending, with many convictions seen on his criminal record.  There are over 155 convictions, largely related to property crimes and some for crimes of violence.  He has spent up to one year in custody on a couple of occasions, and his last conviction for offences of break and enter and uttering threats resulted in a total sentence of 122 days.

[12]      On the issue of what his sentence might have been, had he been sentenced in September of 2021, the defence says that he should be given some presentence custody credit for a reduced sentence, since there has been a delay in his sentencing to today's date.

[13]      I turn next to the community impact statement.  Bill Kwok provided a statement to the court which was read in by Crown counsel and filed as an exhibit.  It is an eloquent statement of the hurt and losses Mr. Castonguay caused to the patrons of the Chinese Cultural Centre; to Mr. Kwok, as a director; and to the Chinese community at large.  Mr. Kwok notes that the comments, in one stroke of a pen, attacked two groups of people: the Jewish people and the Chinese.  He notes that his comments caused staff members and volunteers and visitors to feel unsafe, unwanted, and feeling as if their lives held little value.  He noted that many seniors living in Chinatown, who had attended the garden and courtyard during the pandemic, had to confine themselves to their small units because of these racist attacks. Because of Mr. Castonguay's message, the Chinese Cultural Centre remains closed and locked because of safety concerns after his messaging reverberated into the Chinese community.  Mr. Kwok also notes that the profound impact of hurt and loss of this conduct has also spilled over to all Chinese persons or all persons of Asian background or descent.

[14]      As indicated, I do take judicial notice of the importance of Chinatown and of the Chinese community as part of the fabric of our Canadian society.  Vancouver's Chinatown was the main headquarters for challenging discrimination in the long struggle of Chinese Canadians against racism.  For example, in 1907, a mob organized by the Asiatic Exclusion League marched into Chinatown and damaged windows and looted stores.  During the Chinese exclusion, between 1923 up to 1947, when the Exclusion Act was finally overturned, Chinese Canadians endured widespread segregation in housing, in employment, and in professions such as medicine, pharmacy, and law.  Chinese Canadians did not get the right to vote until 1947.  This information is widely known, and it is available on the Vancouver Heritage website.

[15]      Therefore, Vancouver's Chinatown was recognized as a national historic site of Canada in 2011.  It is one of Vancouver's oldest neighbourhoods; it is the home to important cultural heritage and community organizations; it has deep historical roots in Vancouver and in Canada.  As noted, there has been a history of racism against the Chinese persons in our community, the resistance to which started with the Chinese Benevolent Association in Vancouver’s Chinatown.  I make those comments because I believe that the sentencing must be situated both in the present day but also with an eye to the context and history faced by Chinese Canadians in Canada.

[16]      I have reviewed the cases provided by the Crown and defence, and they include, for the Crown, R v Kroeplin, 2021 ONCJ 19R v Lelas, 1990 CanLII 6836 (ON CA), 1990 OJ No 1587;  R v Mackenzie, 2016 ABPC 173R v Milne, 2021 BCCA 166, and R. v. Topham, 2017 BCSC 551.  The defence cases include R. v. Presseault, 2007 QCCQ 383;R. v. Barnett, 2017 ONCA 897; R. v. Ghaffar, 2017 ONCJ 524; R. v. McKenzie, 2016 ABPC 173; R. v. Orford, 2017 BCSC 2039; R. v. Topham, 2017 BCSC 551 ; and R. v. Wilson, 2008 ONCA 510

[17]      I have also reviewed the presentence reports, the forensic psychiatric assessments, and letters provided to the court.  I have taken into account Mr. Castonguay's written statement and his verbal statement to the court.

[18]      As to sentencing positions, the Crown seeks an effective sentence of nine months' imprisonment and a three‑year probationary period thereafter.  Mr. Castonguay has, to date, spent 109 days on presentence remand.  This would be credited at 161 days, and the Crown is asking for a further 109 days to be served.  The defence seeks an effective sentence of six months, which sentence would be nearly served on remand by Mr. Castonguay.  So, essentially, a time‑served sentence.

[19]      One of the issues the court must consider is whether and to what extent Mr. Castonguay should be given the benefit of a reduced sentence because of the delay in sentencing after his sentencing on unrelated matters on September 15, 2021 for offences committed in March 2020 and April 2021.

[20]      I turn first to the purpose, principles, and objectives of sentencing.  The sentencing process is governed by the legislative framework outlined in s. 718 through to s. 718.2 of the Criminal CodeSection 718 of the Criminal Code provides that the fundamental purpose of sentencing is to protect the public and to contribute to respect for the law and the maintenance of a just, peaceful and safe society.  To achieve this purpose, under s. 718.1, a judge is required to undertake an individualized assessment of the seriousness of the offence and the degree of responsibility of the offender in committing it, and to balance all relevant sentencing considerations, including the objectives of sentencing set out in s. 718 and the secondary sentencing principles under s. 718.2 of the Criminal Code.

[21]      The objectives of sentencing include denunciation of the unlawful conduct; deterrence of the offender and others from committing similar offences; separation of the offender from society, where necessary; rehabilitation of the offender; reparation for the harm done; and promotion of a sense of responsibility in the offender, including an acknowledgment of the harm done to victims or to the community.

[22]      A judge has a duty to impose a fair, fit, and principled sanction, with proportionality as the organizing principle in reaching this goal.  Proportionality calls for the court to assess the gravity of the harm caused by the offender to the victim in committing the offence, as well as harm caused to society and to society's values.  Clearly, in this case, the harm is caused to the victims, being the members and attendees of the Chinese Cultural Centre; and it also has been caused to all persons who identify as Chinese by descent, or origin, or family connection.  The harm is also caused to society at large because, in a free and democratic society, we value the principles of equality and we value the principles of non‑discrimination; and so, in this case, clearly, all of them were impacted by the very terrible, hurtful things that Mr. Castonguay wrote on the windows of the Chinese Cultural Centre.

[23]      As to the moral fault or culpability of Mr. Castonguay in the commission of this offence, in my view, he knew precisely what he was doing.  He had his script in his mind; he referenced violence to persons of Chinese descent; and he referenced Jewish persons and Hitler's annihilation of the Jewish persons in the Holocaust.  So the moral culpability for the offending, in my view, is high.

[24]      Section 718.2 of Code sets out a number of secondary sentencing principles which must be considered.  They include that a sentence should be increased or reduced to take into account any mitigating or aggravating factors established; and of course, the principles of parity and restraint also apply.

[25]      In terms of aggravating factors, I am of the view that this was not a spontaneous outburst, but one that was clearly in Mr. Castonguay's mind when he went to the centre and when he spent over 10 minutes writing his screed on the windows.  He targeted a revered cultural institution, at the heart of the historical roots of the Chinese community, at a time of very increased vulnerability because of the misinformation directed about Chinese persons and their linkage to the COVID‑19 pandemic.  It is also an aggravating factor that Mr. Castonguay had a prior lengthy record.

[26]      In mitigation of sentence, the guilty plea by Mr. Castonguay is a mitigating factor.  He has saved witnesses from having to testify about their horrific response to the defacement of the Chinese Cultural Centre and it has saved the justice system the expense of running a trial.  I do note that Mr. Castonguay has accepted responsibility in writing, and it shows some change in his virulent thinking from what he advanced in April 2020.  However, it is also important to note that Mr. Castonguay said that he was a person of good character or that this was out of character for him.  In my view, he is a person who has a lengthy criminal record of antisocial behaviours, and the weight to put on this matter being out of character would be somewhat reduced.

[27]      I have looked at all of the cases that counsel have provided to the court, and, of course, each case differs on the facts and on the circumstances of the offender.

[28]      In R. v.Kroeplin, two 23‑year‑old men posted racist posters and it was said in that decision that these posters were placed at a place of no particular significance to the Black or Jewish community.  I would pause to say that Black and Jewish community members are part of our community at large and the kind of posters in Kroeplin would have had significance to them wherever placed, but I take it that it was not of any specific cultural or religious significance to them.

[29]      R. v. Topham contains a set of considerations as to the circumstances to be weighed, such as whether the outburst was spontaneous or organized; whether the person is a lone member or a member of an organized racist group; or whether the views appear to be deeply rooted in racist values or not.

[30]      While those are helpful factors to consider, each case turns on the facts presented before the judge who does the sentencing.  Yes, it is correct that Mr. Castonguay did not run a website over a number of years, nor provide racist links to others, but he committed an act, the repercussions of which, the reverberations of which, went out to the members of the community at large and, in particular, impacted the Chinese Canadian community.  There is not the aggravating factor of the offender being part of a known racist organization, but, on the other hand, the impact of conduct in the case is what this court must assess.

[31]      I have considered, as well, the very helpful comments of Justice Butler, as he then was, in R. v. Topham, and I simply accept and quote that the harms caused by this type of behaviour is that it harms members of the target group, it causes emotional damage by words, and has grave psychological and social consequences.  This is a summary of what Justice Dickson stated in R. v. Keegstra.

[32]      In this case, the moral gravity of the offending is high.  The conduct was a grave affront to the dignity of all persons, and particularly to those of the Chinese Canadian community.  The sentence that I impose must be a denunciatory sentence.  By denunciation, the court speaks for members of the community to say that what occurred here was wrong.  By deterrence, through a sentence, a court sends a message to other members of the community that there will be significant and punitive consequences for this type of criminal behaviour.  That is, that society will expect the justice system to hold such offenders to account, and separation from society may be a result of such conduct.

[33]      I have to also consider the objective of rehabilitation.  In my view, it has a lesser import, given the many opportunities Mr. Castonguay had for rehabilitation over the many sentencing opportunities that he faced.  They appear not to have had much effect on him.

[34]      At the end of the day, I have taken into account the concern raised by the defence as to whether there might have been a different outcome had this sentencing taken place in September, and I am of the view that, given the particular facts and circumstances in this case, the acts were so reprehensible that they would have resulted in a very minor discount from the nine‑month sentence that the Crown is proposing.

[35]      In my view, it is time for sentencing judges to take into account the profound impact these kinds of criminal acts have on members of vulnerable communities; and, in this case, although the Crown is asking for a sentence of nine months, had there been an earlier sentencing, I believe that the judge, at that point in time, would have sentenced Mr. Castonguay to a sentence of eight months, effectively, and that is the sentence I intend to impose today.

[36]      The sentence, in effective days, is a 240‑day sentence.  He is to be given credit of 161 days that he has already spent on remand.  By my calculation, that means that Mr. Castonguay is to serve a further 79 days in custody, to the completion of his sentence.  He is to be placed on probation for three years.  In addition to the statutory terms of the probationary order, it is a non‑reporting probation.  The sole condition will be that Mr. Castonguay shall not be found at the Chinese Cultural Centre or on the block of Pender Street, on which it is located.  And I do not have the precise block, and I do not know whether, Mr. Crisp, you managed to look it up.

[37]      CNSL. M. CRISP:  It's, I believe, 55 Pender.  The --

[38]      THE COURT:  The unit block of Pender Street?

[39]      CNSL. M. CRISP:  Pardon me?

[40]      THE COURT:  Not to be found at 55 Pender Street or on the block on which the Chinese Cultural Centre is located.  So even though Mr. Castonguay lives in the Downtown Eastside, he can circle around, if he needs to go from one place to the other, and just stay away from that particular block.  Mr. --

[41]      THE ACCUSED (via video):  It's just one block, correct, Your Honour?  Just a one‑block radius?

[42]      THE COURT:  Yes, one block.

[43]      THE ACCUSED:  Okay.

[44]      THE COURT:  All right.

[45]      THE ACCUSED:  Good.

[46]      THE COURT:  Because I am of the view that the Chinese Canadian community, all visitors, need to feel they can reclaim that space for themselves.  They need to reclaim it in an honourable and safe way.

[47]      So that is the only condition, other than the statutory conditions, which mean to keep the peace and be of good behaviour, appear before the court when required to do so by the court, and --

[48]      THE ACCUSED:  Okay.

[49]      THE COURT:  -- advise the probation officer or court in advance of any change in your name or address, and promptly notify the same of any change in your occupation or employment.

[50]      Victim fine surcharge.  I do know that he is a person with disabilities and I know that he is of limited financial means, so I decline to impose a victim fine surcharge in this case.

[51]      Have I managed a complete sentencing -- I think you need to deal with Count 1.

[52]      CNSL. M. CRISP:  Yes, that's the only thing; and Crown directs a stay on Count 1.

[53]      THE COURT:  Yes, very well, then.  I think I have made you a little late, Mr. Swartz, but not too late for you to be able to get on to Abbotsford.  Thank you everyone for accommodating me today.

[54]      THE CLERK:  So, Your Honour, should I put the address for the Chinese Cultural Centre [indiscernible/overlapping speakers] --

[55]      THE COURT:  Yes, please, you can, if you look it up.

[56]      THE ACCUSED:  So is it -- it's a sentence of 79 days?

[57]      THE COURT:  Yes.  Additional days to go forward, yes.

[58]      THE ACCUSED:  Seventy‑nine days?

[59]      THE COURT:  Yes.

[60]      THE ACCUSED:  Okay.  Thank you.

[61]      THE COURT:  Thank you very much.

[62]      THE ACCUSED:  Okay.  Thank you, Your Honour.

[63]      THE COURT:  Thank you.  And --

[64]      THE ACCUSED:  Thank you.

(REASONS CONCLUDED)