Client admitted to police and to the Court that he had been engaged in sexualized “chats” with a person who turned out to be an undercover police officer “posing” as a 13-year old girl. On sentencing, Vancouver Criminal Lawyer Emmet J. Duncan persuaded the Court that jail was not necessary and would be counter-productive to the Client’s future rehabilitation. Client received no jail.
Stanley Cup Riot Sentence Upheld in Highest Court
R. v. A.P. (2013 British Columbia Court of Appeal & 2012 B.C. Provincial Court)
In 2012, Vancouver Criminal Defence Lawyer Emmet J. Duncan represented one of the first of the so-called Stanley Cup rioters to be charged, and one of the first to be sentenced. The stakes were very high, because although the Client was young, had no criminal record, had excellent family and community support, was employed and was a full time University student, the Crown still sought a lengthy sentence (9 months) of conventional imprisonment. The reason the Crown sought such a stiff penalty was that the Client was said to be one of the Riot’s “early instigators”, and because the Client had not only taunted police, but had “sucker punched” and thereby assaulted a citizen who, as it turns out, was trying to put fires out (though that was not known to the Client). The Crown was staunchly opposed to a “house arrest”-based sentence, or even a sentence that could be served on weekends, so as to preserve the Client’s ability to attend school. In a two day hearing dedicated to the appropriate sentence, Mr. Duncan presented lengthy arguments supporting a lenient sentence, taking the Court through numerous previous authorities, upwards of two dozen character references and a thorough and comprehensive risk assessment report prepared by one of British Columbia’s leading forensic psychologists and experts in risk evaluation.
Following those submissions, the Court disagreed with the Crown and agreed with Mr. Duncan that although the sentence must reflect the community’s intolerance for behaviour like the Client’s, and though the sentence must serve as a message to others who in the future may wish to involve themselves in such upheavals, that the principle of rehabilitation must be seriously addressed, and that it justified a more lenient sentence. The Judge imposed a 60 day sentence, to be served on Fridays-Sundays, so that the Client could continue attending school.
The Crown was disappointed with the result and decided to take Mr. Duncan’s case, along with one other, to the province’s highest Court – the British Columbia Court of Appeal – as a “test case”, inviting the Court to direct the Provincial Court judges that the sentences they had been handing down were too lenient, and that unless the offender was a youth or had a mental disability, every single riotermust go to jail.
Along with a colleague, Mr. Duncan argued the case in the Court of Appeal and was successful in winning. The Court upheld the original sentence, agreeing with submissions that Mr. Duncan’s team made, that although sentences in older riots were longer and harsher, that amendments to the Criminal Code in 1996 that were designed to reduce incarceration in favour of rehabilitation made those older cases ones which must be approached with some caution.
At the time of the appeal, the Client had in fact completed his jail sentence, and the Crown was seeking his re-incarceration. As a result of this work in the Court of Appeal, the Client’s sentence remained as is, and he continued to contribute to the community, including his Community Work Service and the restitution he paid to the owner of one of the vehicles that was lost in the Riot.
This case is now the leading case on riots in British Columbia, and in relation to the 2011 Stanley Cup Riot in particular.
BAIL VARIED IN SUPREME COURT TO RESTORE ACCESS TO SON
R. v. R.S. (2009 BC Supreme Court)
Client charged with a spousal assault had lost access and the right to communicate with his six year-old son. After Client tried with two lawyers and by himself to persuade the Crown and the Provincial Court to allow him to see his son, he retained Vancouver Criminal Defense Lawyer Emmet J. Duncan to represent him in an appeal to the Supreme Court to change the bail order. Mr. Duncan brought a British Columbia Supreme Court Bail Review and was successful in having the Bail Order VARIED to DELETE the conditions of bail that prevented him from seeing and talking to his son.