R. v. Grant, 2022 BCPC 200

Citation: R. v. Grant 2022 BCPC 200 Date: 20220902 File No: 42918-2C Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GRIFFIN LEE GRANT REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K. WHONNOCK Counsel for the Crown: T. Morgan Counsel for the Defendant: M. Berry Place of Hearing: Campbell River , B.C. Date of Hearing: February 18, 2022 Date of Judgment: September 2, 2022

REASONS FOR MY DECISION [ 1 ] On March 28, 2020, Mr. Dustin Kowbel tragically passed away. [ 2 ] Mr. Griffin Lee Grant was charged with several offences resulting from that day. [ 3 ] Mr. Griffin Lee Grant plead guilty to Count One on October 14, 2021; that is, causing the death of Dustin Kowbel by driving with over 80 mg of alcohol, contrary to

section 320.14(3) of the Criminal Code, RSC 1985, c. C-46 . [ 4 ] This matter came before me for sentencing submissions on February 18, 2022. [ 5 ] There were 12 exhibits at sentencing: i. Exhibit One – ICBC Driving Record of Mr. Grant; ii. Exhibit Two – Sentencing Materials of Mr. Grant; iii. Exhibit Three – Admissions of Fact; iv. Exhibit Four – PSR filed December 9, 2021; v. Exhibit Five – PSR and Psychological Assessment filed December 29, 2021; vi. Exhibit 6 – CD of videos; vii. Exhibit 7 – Victim Impact Statement of Peter Goebel; viii. Exhibit 8 – Victim Impact Statement of Jack Blake; ix.

Exhibit 9 – Victim Impact Statement of Oliver Blake; x. Exhibit 10 – Victim Impact Statement of Marley Watson-Blake; xi. Exhibit 11 – Victim Impact Statement of Grace Kowbel; xii. Exhibit 12 – Victim Impact Statements of Kevin and Lorraine Kowbel. [ 6 ] At sentencing, the court heard the following people read their Victim Impact Statements: Peter Goebel; Jack Blake; Oliver Blake; Marley Watson-Blake; and Kevin Goebel. The court also heard from Mr. Grant.

Issue [ 7 ] The issue for the court is to determine a fit and proper sentence taking into account all of the relevant purposes and principles of sentencing, the circumstances of the offence and the particular circumstances of the offender Mr. Griffin Lee Grant. Having considered the aggravating and mitigating factors, the case law, legislation and a holistic Gladue analysis, I order Mr. Grant to serve 18 months of incarceration to be followed by two years of probation. Circumstances of the Offence [ 8 ] I adopt the Admissions of Fact contained in Exhibit Three. [ 9 ] On March 27, 2020, Mr.

Grant was seen on video camera at Jak’s liquor store purchasing two six packs of alcohol. [ 10 ] Mr. Grant consumed alcohol with friends after that. Mr. Grant left and went to the residence of Dustin Kowbel at about 3:36 a.m. on March 28, 2020. [ 11 ] The two men left the residence about 3:45 a.m. Mr. Grant was driving his Subaru and Mr. Kowbel was in the passenger seat. [ 12 ] Mr. Grant drove northbound onto Island Highway South. [ 13 ] Mr. Grant drove at a very high rate of speed, 120 km/ph in a posted 50 km/ph speed zone. [ 14 ] Mr.

Grant was driving while impaired by alcohol as his blood alcohol content was no less than 155 milligrams of alcohol in 100 ml of blood. [ 15 ] It is admitted that Mr. Grant was driving in a manner that was dangerous to the public. [ 16 ] Corporal Bignell was travelling southbound on Island Highway South and making a left-hand turn when Mr. Grant approached at a very high rate of speed. Mr.

Grant swerved, missed the police car and then hit a raised median and went across the road, hitting a tree, with the passenger side of the Subaru being ripped off. [ 17 ] Corporal Bignell immediately attended to the scene of the vehicle crash and arrested Mr. Grant who was uninjured. [ 18 ] Mr. Grant denied he had anything to drink since 3:00 p.m. on March 27, 2020, but the police detected an odour of alcohol and

proceeded to administer breath analysis testing. [19] Mr. Kowbel was ejected from the Subaru when the vehicle hit the tree. He suffered severe injuries, such as the amputation of hisleft arm and trauma to his head and left leg. Mr. Kowbel was taken to the Campbell River Hospital and then to the Victoria GeneralHospital. Tragically, Mr. Kowbel died at 2:50 p.m. on March 28, 2020. Victim Impact [20]

Section 722 of the Criminal Code directs a sentencing judge to consider a Victim Impact Statement for the purpose ofdetermining the sentence to be imposed. [21] The loss of Mr. Dustin Kowbel as a family member and friend is immeasurable. It is clear to the court that Mr. Kowbel wasdeeply loved and is greatly missed. Mr. Kowbel was described as funny, social and as a charmer. He was described as always smiling. [22] Peter Goebel, father-in-law of Dustin Kowbel, shared that Dustin Kowbel was a best friend and soulmate to his daughter. Mr.Goebel writes that Dustin was a big part of his family’s life. Mr.

Kowbel and his daughter had a lot of plans for the future. They wantedto move to Victoria and start school. Mr. Goebel told the court about the heartbreak, grief and anguish his family went through when Mr.Kowbel passed away. Mr. Goebel described how Dustin Kowbel was a polite, caring and loving man. Mr.

Goebel told the court that hewas proud that Dustin Kowbel was dating his daughter. [23] Jack Blake, brother-in-law to Dustin Kowbel, told the court that Dustin Kowbel was a big part of his life and brought joy to hislife. [24] Oliver Blake, brother-in-law to Dustin Kowbel, shared with the court that he had fun memories of sharing time with DustinKowbel and talked about how much he misses Dustin Kowbel. [25] Marley Watson-Blake, the partner of Dustin Kowbel, told the court that Dustin Kowbel had been her partner in life, best friendand soulmate. She was in a relationship with Dustin Kowbel for over five years. Ms.

Watson-Blake described the anguish and horror ofsaying goodbye to Dustin Kowbel in Victoria. She relayed to the court that after his death, she would have extreme and uncontrollablefits of grief and anger. Since he passed away, she has experienced anxiety, depression, nightmares and insomnia. The death of DustinKowbel has impacted her employment, relationships and career goals. Before Dustin Kowbel died, Ms. Watson-Blake rarely drank, butafterwards she began drinking alcohol to the point of blacking out. She would also experience periods of dissociation and lose track oftime, sometimes for weeks. Ms.

Watson-Blake has been attending weekly therapy sessions. She has relocated to Victoria to move awayfrom the reminder of memories and loss in Campbell River but has not found the peace she was seeking in Victoria. [26] Grace Kowbel, grandmother to Dustin Kowbel, described in Exhibit 11 about how difficult it was on March 28, 2020. She toldthe court about the impact of COVID on Dustin Kowbel’s funeral and how that was extremely difficult in a time of great pain for thefamily. She has been unable to sleep or concentrate at times because of the pain and loss that she endures. Ms.

Kowbel told the court thather grandson was a trusting, friendly and popular young man with a good sense of humour. [27] Kevin and Lorraine Kowbel, the parents of Dustin Kowbel, provided a joint Victim Impact Statement (Exhibit 12). Mr. Kowbeltold the court about the devastating pain, anguish and suffering that his family has endured since the passing of Dustin Kowbel.

Mr.Kowbel told the court about how his son’s untimely death led to the family having heartbreaks and emotional breakdowns, eatingchanges, fatigue, headaches and migraines, nightmares and fear of driving. [28] Although I have not cited every part of the Victim Impact Statements, I can assure the Kowbel family that I have read every wordof the Victim Impact Statements. I have heard that Mr. Kowbel’s death has created unbearable grief and tragedy in your lives. [29] It is an understatement that this case is truly heart breaking.

No words can address the sorrow and tragedy experienced by Mr.Kowbel’s family and friends. No matter what sentence I may order, a sentence can do nothing to bring back Mr. Kowbel. The sentencetoday should not be considered a value on Mr. Kowbel’s life, which is priceless. There is simply no sentence that I can impose on Mr.Grant to adequately address the loss of a human being. Circumstances of the Offender [30] Mr. Grant is of Indigenous ancestry and R. v. Gladue, (SCC), 1999 1 S.C.R 688, applies to his situation. I willspeak more about the Gladue Report and Gladue factors shortly. [31] Mr.

Grant is reported to have had a troubled childhood. His parents separated when he was two or three years old (there is someconflict on the exact timing in the reports). Mr. Grant continued to live with his mother and have regular visits with his father. When Mr.Grant was six years old, his mother began a relationship with Jeff Tourneau and she married him when Mr. Grant was about ten yearsold. Mr. Grant does not have any siblings but he has a 19-year-old stepsister. Mr. Grant does not have any children. Mr. Grant is livingwith his mom and his stepfather but hopes to move out. Mr.

Grant’s troubled childhood primarily stems from being bullied by otherchildren because of his ADHD and Tourette’s syndrome. Mr. Grant had difficulties fitting in with other children and constantly seeks theapproval of others. [32] Mr. Grant received his grade 12 diploma in 2016. Since then he has obtained several tickets such as a film orientation certificate,fall protection and ground disturbance ticket and confined space ticket. He has also obtained a marine first aid basic A1/A2 certification. [33] Mr. Grant has been working for Fluor Constructors since May of 2021 and travels to Kitimat.

He expected to be laid off inDecember of 2021 although at the time of submissions in February of 2022, it appeared Mr. Grant still had the same employer. Mr. Grantreports that he makes $100,000 a year before taxes as a labourer. Mr. Grant has worked in towing, at a pizza place and as a productionassistant. Mr. Grant has goals of working in the film industry in Vancouver or Victoria.

Letters of Support for Mr. Grant [ 34 ] At Exhibit 2, Tab 6, is a letter from Rod Chant, Counsellor. Mr. Chant wrote on January 3, 2022 that Mr. Grant had attended nine sessions between September of 2020 and December of 2021. Mr. Chant shared that Mr. Grant was kicked out of two day cares and had behavioural problems in elementary school. Mr. Grant shared that he felt singled out and bullied for being the “weird kid” in school. Mr. Grant shared that his anger would get the better of him and he would lash out in team sports, leading to being ostracized. Mr. Grant became quite involved in BMX biking.

Around 14 or 15 years of age, Mr. Grant began drinking in order to socialize with others. Mr. Grant shared that he was the designated driver for his friends for a certain period of time. Mr. Chant believes that the need for social acceptance led Mr. Grant to start drinking. Mr. Chant gave Mr. Grant some cognitive behavioural techniques to encourage stress management. Mr. Chant says some of the anger or resentment that Mr. Grant has could be construed as seeing himself as the victim of the offence. Mr. Chant is of the opinion that Mr. Grant takes responsibility for the choices he made on March 28, 2020, but Mr.

Grant struggles with taking full responsibility for the offence. [ 35 ] At Exhibit 2, Tab 7, there is a character reference letter from a very good friend of Mr. Grant, Noah Ellis. Mr. Ellis reports that he considers Mr. Grant to be a brother. Mr. Ellis witnessed Mr. Grant being bullied at school as a youth because he was different. Mr. Ellis has stood by him when people sent death threats to Mr. Grant or attacked him on social media because of this file before court. Mr. Ellis believes that Mr.

Grant is devastated and will be haunted for the rest of his life by the events of March 28, 2020. [ 36 ] At Exhibit 2, Tab 8, there is a character reference letter of a good friend of Mr. Grant, Alex Green. Mr. Green tells the court that Mr. Grant tells him that he feels isolated from everyone that he used to know before the offence. Mr. Green tells the court that Mr. Grant has been harassed and threatened by former friends. [ 37 ] At Exhibit 2, Tab 9, there is a character reference letter from Karen Ann Lakberg who is the mother of a friend of Mr. Grant. Ms.

Lakberg tells the court that she has witnessed a profound change in Mr. Grant, as he is much quieter and more reserved now. [ 38 ] At Exhibit 2, Tab 10, there is a character reference letter of a former employer, Anne-Marie Fair, of North Island Insultech. She writes that Mr. Grant came to work for her company in October of 2020. She states that Mr. Grant is a kind, polite, hardworking and dedicated young man. Mr.

Grant shared that he needed to work to pay his lawyer’s fee so his family would not have to pay the bill. [ 39 ] At Exhibit 2, Tab 11, there is a character reference letter of a friend of the offender’s mother, Jenny Doyle. Ms. Doyle tells the court that she has known Mr. Grant since his birth. Ms. Doyle explains that Mr. Grant has overcome many challenges along the way. Ms. Doyle wrote that she was not surprised to hear of the crash but she was sad and horrified. She believes that there has been a profound shift in Mr.

Grant and she does not believe he would put himself or anyone else in a situation like this in the future. [ 40 ] At Exhibit 2, Tab 12, there is a character reference letter of Mr. Grant’s mother, Darcy Letourneau. Ms. Letourneau believes that her son has had challenges controlling his impulses. At age eight, Mr. Grant spent six months at the Ledger House in Victoria to be assessed. Ms. Letourneau believes her son has always craved acceptance from others. She tells the court that her son is smart and a hard worker but is capable of making mistakes.

She tells the court that her son has told her that he wishes that he had been the one who lost his life. Ms. Letourneau sees her son struggling every day with his guilt. [ 41 ] At Exhibit 2, Tab 13, there is a letter from an Indigenous Elder, JC Lucas. Elder Lucas tells the court about the importance of Indigenous ceremonies for an Indigenous Restorative Justice and Rehabilitation Plan . Mr. Lucas describes cedar brushing, pipe ceremonies, sharing circles, smudging and sweat lodge ceremonies. Mr. Lucas relates that Mr. Grant has expressed regret about what happened. Mr.

Lucas says that the Indigenous Restorative Justice and Rehabilitation Plan have given Mr. Grant hope and picked up his energy. Mr. Lucas believes that Mr. Grant is fully receptive to the process of Indigenous Restorative Justice and Rehabilitation Plan . Reports Pre-sentence Report filed December 9, 2021 by Nicolaus Toupin (Exhibit 4) [ 42 ] The Pre-sentence Report (“PSR”) sets out the personal circumstances of Mr. Grant. The PSR author states that Mr. Grant has been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”), Tourette’s syndrome, and Obsessive-Compulsive Disorder. Mr.

Grant reports that after the offence, he would not leave his bedroom for fear of what people might do to him. He reported that counselling has improved his mental state. Mr. Grant reported that he sometimes thinks about suicide but says that he would not follow through with it. Mr. Grant reported that he first started using alcohol in middle school so he could socialize with others. Mr. Grant reported that drinking alcohol would “amplify” his ADHD and lead to anger and poor decision making (page 4). Mr. Grant continues to drink alcohol on occasion since March of 2020 (page 4). Mr.

Grant used marijuana in middle school and decided to stop using it as it made him anxious (page 4). Pre-sentence Report and Psychological Assessment filed December 29, 2021 (Exhibit 5) [ 43 ] Dr. Shawna Darcangelo confirms that Mr. Grant has a diagnosis of Tourette’s syndrome and ADHD. Mr. Grant told her that he was anxious to leave his house as he had been in quarantine with his mother for about a week before the offence. Mr. Grant admitted consuming alcohol with his friends and girlfriend but states that he stopped consuming alcohol about midnight (p. 3). Mr. Grant relates that he had a message from Mr.

Kowbel that Mr. Kowbel wanted to hang out with them. Mr. Grant states he offered to pick up Mr. Kowbel. Mr. Grant expressed remorse for not pleading guilty earlier in the proceedings but related that he was following legal advice of his then lawyer. Mr. Grant told Dr. Darcangelo that Mr. Kowbel was one of his best friends (p. 3). Mr. Grant states he feels guilty and visits Mr. Kowbel’s grave at night to avoid any other people. Mr. Grant revealed that learning about his Indigenous heritage is a big part of his healing (p. 4). Mr.

Grant acknowledged that alcohol was a concern until he started counselling in late 2020/early 2021 (p. 6). Mr. Grant admits he has not used marijuana since he received a 24-hour prohibition for driving under the influence of drugs. Dr. Darcangelo is of the opinion at page 12 that Mr. Grant meets the criteria for ADHD, Tourette’s syndrome, Generalized Anxiety Disorder and Alcohol Use Disorder. She noted that Mr. Grant has a lengthy history of inattention, poor emotion regulation, hyperactivity, impulsivity, anxiety, interpersonal difficulties and poor decision making and motor tics and vocal tics.

She also described on page 12 that Mr. Grant’s risk of reoffending is in the low range if he continues with counselling and abstention from alcohol and drugs.

Psychiatric Assessment of Dr. Tyler Oswald (Exhibit 2, Tab 3) [ 44 ] Dr. Oswald reports that in addition to being bullied, Mr. Grant would at times bully other children in childhood and act aggressively (p. 6). Dr. Oswald was of the opinion at page 12 that Mr. Grant suffers from ADHD, Tourette’s syndrome, mild Alcohol Use Disorder in sustained remission, anxiety disorder traits and symptoms of psychological trauma. Dr. Oswald was of the opinion that Mr. Grant suffers from problems with impulsivity and the events of March 28, 2020 reflect his impulsive behaviour and poor decision making. Dr. Oswald opined that Mr.

Grant would have underappreciated the consequences of his actions on March 28, 2020 (p. 12). Dr. Oswald related that with respect to Mr. Grant’s ability to survive in prison, Mr. Grant is doing better in the world now than he did as a youth (p. 13) and he has shown great improvement with his anger and difficulties with Tourette’s syndrome. This should be balanced with the emergence of symptoms when Mr. Grant is under stress (p. 13) and keeping in mind his need for social acceptance. Dr. Oswald tells the court that Mr.

Grant would be vulnerable to the stress of a prison environment for emotional dysregulation, violence, bullying and abuse (p. 14). Dr. Oswald notes that Mr. Grant is generally naïve and somewhat immature which could increase his vulnerability in prison (p. 14). Positions of the Parties [ 45 ] Crown counsel submitted that 30 months’ jail is appropriate. [ 46 ] Crown argued that the sentencing range is set out in R. v. Suter, with two to three years being at the low end. Crown submitted that they had considered Mr.

Grant’s guilty plea, remorse, his young age and all the sentencing principles of denunciation, deterrence and rehabilitation. Moral blameworthiness is elevated in instances of drinking and driving. Crown put forward that Mr. Grant made the choice to drink alcohol and drive on March 28, 2020. Crown says that the related driving record of Mr. Grant is aggravating. Crown argued that after the 2016 suspension for driving while impaired by marijuana, Mr. Grant was fully aware that there are consequences for driving while impaired. Crown argued that Mr.

Grant only came to the teachings of Elders recently but he should be encouraged to do that. Crown argued that in R. v. Mero , it is still the law that more violent and serious offences will attract the same type of sentence for an Aboriginal offender and a non-Aboriginal offender. Crown is of the view that this is a serious crime with a violent outcome. Crown says that it is not credible that Mr. Grant did not drink alcohol after midnight, as expressed by Mr. Grant to Dr. Darcangelo. When asked if alcohol was a factor, Mr. Grant replied that it may have been a factor. Crown says this response by Mr.

Grant months after the crime shows that Mr. Grant is not insightful into his own actions. Crown was clear that what happened should not be described as an accident as Mr. Grant had made a choice to drive while under the influence of alcohol. Crown argued the offence and fatality were preventable.

Crown argued that deterrence and denunciation must be emphasized and the proper way to do that is through a custodial sentence. [ 47 ] Defence counsel submitted that two years of house arrest of a conditional sentence order or “CSO”, followed by three years of probation, is a fitting sentence. [ 48 ] Defence counsel argued that this is a reminder about how someone’s actions can ruin the lives of many people. Defence submitted that a fit and proper sentence would be a two year CSO followed by three years of probation.

Defence articulated that his client has been working and compliant with bail and has the support of his family. [ 49 ] Mr. Grant was sent away for six months as a child because of his behavioural problems. Defence put forth that Mr. Grant continues to struggle for social acceptance and this is a common theme throughout the reports. Mr. Grant does not fit in well with others. Mr. Grant admits that on March 28, 2020 he was driving 120 km/ph and it was 3:00 a.m. and he thought no one was on the streets. Mr. Grant admits that there is moral culpability in the risk to society and the risk to Mr.

Kowbel when he was operating a vehicle too fast while impaired. Mr. Grant puts forward that the message he sent to Ms. Watson-Blake at Exhibit 2, Tab 5, shows his genuine regret. Mr. Grant denies being in ‘victim mode’ as expressed in the PSR and argues that the letter from Dr. Chant at Tab 6 of Exhibit 2 shows the true growth in counselling sessions. Mr. Grant argues that the documents from Tabs 5 to 12 of Exhibit 2 all show that Mr. Grant deeply regrets his actions of March 28, 2020. Mr. Grant submits through his counsel that he has cut back on drinking alcohol since March 28, 2020. Mr.

Grant has argued that his safety would be in jeopardy if incarcerated because of stress and his Tourette’s syndrome. His counsel submitted that things would go very poorly for Mr. Grant based on Dr. Oswald’s Report. [ 50 ] Mr. Grant argues that Mr. Grant has had a Métis status card since he was four years old and he did not just learn about his Indigenous ancestry. Mr. Grant puts forward that the law is clear that there does not have to be a causal link between Gladue factors and criminal behaviour. In this case, Mr.

Grant argued there is a nexus as it is clear at paragraph 30 of the Gladue Report that alcohol has ravaged the family structure and alcohol was a key part of the offence of March 28, 2020. Mr. Grant submits that his mental health was unchecked and unaddressed as a youth, and his unstable home contributed to the offence. Mr. Grant argues that the incarceration rate for Indigenous offenders is extremely high at 30% and this is a chance to reduce Indigenous incarceration rates. Mr. Grant is of the view that Indigenous and traditional justice will help cement the lessons that he needs to be taught. Mr.

Grant pressed strongly for a Conditional Sentence Order with strict conditions. His counsel was of the view that R. v. Chen and R. v. Sharma would allow a conditional sentence order to be imposed on Mr. Grant. Mr. Grant contends that the unique psychiatric features and unique Gladue factors that he presents with allow for a CSO, even a punitive CSO. Mr. Grant highlighted cases like Gladue , Ipeelee , Parranto and Mero and others. THE LAW [ 51 ]

Section 718 sets out the purpose and objectives of sentencing: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

a) to denounce unlawful conduct and the harm done to victims or the community that is caused by the unlawful conduct;

b) to deter the offender and other persons from committing offences;

c) to separate offenders from society, where necessary;

d) to assist in rehabilitating offenders;

e) to provide reparations for harm done to victims or to the community; and

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [52] The primary sentencing objectives in cases involving drinking-and-driving causing death are denunciation and deterrence (seepara. 28 of R. v. Suter, 2018 SCC 34). As Ryan J., writing for the court, stated in R. v. Johnson, (BCCA), at para. 30: [30] Drinking driving causing death or bodily harm offences are senseless crimes because they are so easily avoided and at the sametime they are so easily committed by ordinary citizens.

They are unlike any other crimes in the sense that nothing much can be offered tojustify driving drunk. Crimes of theft may be motivated by poverty, crimes of assault may be motivated by fear, but what excuse can beoffered for driving drunk, except that alcohol allowed the offender to lose all sense of judgment? It is for this reason that communitiesrightfully express outrage when victims are killed or injured as a result of such conduct. It is for this reason that both deterrence anddenunciation are legitimate objectives to pursue for this type of offence. . . . [53]

Section 718.1 of the Criminal Code codifies the proportionality principle, which requires the sentence to be proportionate to thegravity of the offence and the degree of responsibility of the offender. The gravity of the offence refers to what the offender did wrong. Itincludes two components: (

a) the harm or likely harm to the victim; and (

b) the harm or likely harm to society and its values: R. v.Lacasse, 2015 SCC 64, at para. 130. The Supreme Court of Canada has held proportionality is the fundamental and overriding principleof sentencing. [54] This means that for the sentence I impose to be appropriate, it must be tailored to Mr. Grant’s circumstances and thecircumstances of the offence he committed. [55] Other important sentencing considerations are set out in

section 718.2, which states a sentence should be increased or reduced toaccount for any relevant aggravating or mitigating circumstances relating to the offence or the offender. [56] As a sentencing judge, I am required to exercise restraint.

Section 718.2(

d) of the Criminal Code mandates that any offendershould not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances. [57] Sentencing judges must adhere to the principle of parity to ensure that there is consistency in sentencing.

Section 718.2(

b) of theCriminal Code states that a sentence should be similar to sentences imposed on similar offenders for similar offences committed insimilar circumstances. Sentencing Range [58] As Crown has proceeded by way of indictment on File 88227-1, the maximum sentence is life imprisonment. [59] The sentencing range as set out in Suter at para. 27 is from two to three years at the low end, to eight to 10 years at the high end. [60] Madam Justice Watchuck in R. v. Laliberte, 2019 BCSC 318, confirms at para. 34 that the Suter range replaces previous cases. [61] Sentencing is highly individualized.

As the court set out in Suter at para. 4, sentencing requires a delicate balancing of thevarious sentencing principles and objectives set out in s. 718 of the Criminal Code. [62] I am mindful that sentencing ranges are only guidelines and a sentencing judge has the discretion to move beyond the rangewhen consistent with the facts and sentencing objectives and principles. [63] I accept the sentencing range after Suter and Laliberte is two to three years at the low end and eight to 10 years at the high end. Aggravating Factors [64] High rate of speed – Mr.

Grant drove at a very high rate of speed of 120 km/ph in a posted 50 km/ph speed zone. [65] Blood Level of Alcohol – was aggravating pursuant to s. 320.22(e ). Mr. Grant had been operating a vehicle while his bloodalcohol concentration was approximately 150 mg of alcohol in 100 ml of blood. That is almost twice the legal limit. It is statutorilyaggravating under the changes made to the Criminal Code in 2018. [66] Driving Record – Mr.

Grant has been convicted of two prior driving offences specifically, which shows one youth offence forspeeding in a school zone from 2015 and one 24-hour prohibition for driving under the influence of drugs on December 4, 2016. Mitigating Factors [67] Guilty Plea – Mr. Grant has pled guilty, sparing the Kowbel family the trauma of having to sit through a long contested trial. Aguilty plea provides certainty and finality in criminal proceedings. When an accused enters a plea of guilty, one can conclude that theaccused is accepting responsibility for having committed the offence. [68] Remorse – Mr.

Grant’s lawyer has told the court that Mr. Grant has shown genuine and profound remorse. Mr. Grant says that hewill follow any court-ordered condition such as a house arrest or curfew, abstaining from alcohol or attending counselling (page 4 of thePSR). Mr. Grant told the court that March 28, 2020 was a day which changed his life forever and where he made the worst decision ofhis life. He showed genuine remorse in asking for the forgiveness from the Kowbel family in court. [69] Family Support – Mr. Grant has the support of his family including his parents, grandparents and cousins. Jason Grant, the fatherof Mr.

Grant, believes that his son is a hardworking and responsible person who is good with his money. Mr. Jason Grant believes his

son is a good person who is impulsive and made a poor decision. [70] Counselling – Mr. Grant has attended nine counselling sessions with Mr. Chant. He has also attended three counselling sessionswith Irene Peterson. He has met seven times with Azalea Milwid, Native Courtworker, for informal talks. Mr. Grant has completed threesessions in SMART recovery run by Laichwiltah Family Life in Campbell River. [71] Responsible Driver Program – Mr. Grant has completed the Responsible Driver Program. [72] Youthful Offender – Mr. Grant is 24 years of age.

His relatively young age is a mitigating factor as it bodes well for futurerehabilitation. [73] Taking Responsibility – Mr. Grant does not deny his actions and takes full responsibility for the offence. Mr. Grant reported thatalthough he initially blamed the police officer for driving in front of his vehicle while making a left-hand turn, he has later retracted thatas it was in the heat of the moment (see p. 11 of Exhibit 5). It was reported by Mr. Chant in Exhibit 2, Tab 6, that Mr. Grant takesresponsibility for his actions but struggles with taking full responsibility.

This is repeated in the PSR at page 2 where Mr. Grant’s motherreports that what happened on March 28, 2020 is not entirely her son’s fault and others share responsibility for what happened. As well,in the PSR at page 2, Mr. Grant’s father reports that prior to the accident, Dustin Kowbel was encouraging Mr. Grant to speed.Apparently Mr. Grant has not said this to anyone else prior to the date of the PSR in December of 2021 as Mr. Grant did not want to takethe blame away from himself. The guilty plea from October of 2021 is the largest signal that Mr.

Grant has taken responsibility for hisactions on March 28, 2020. [74] Mental Health – I accept that mental health does not mitigate the severity of the fatality that occurred, but it can somewhat lessenthe moral culpability of the offender in certain circumstances. Mr. Grant meets the diagnosis for ADHD, Tourette’s syndrome, AnxietyDisorder Traits and Alcohol Use Disorder which is Mild and in Sustained Remission. Dr. Oswald also felt that Mr.

Grant suffers fromPsychological Trauma stemming from the vehicle crash and his current criminal charges but not to the threshold of a diagnosis for Post-traumatic Stress Disorder. Mr. Grant met the definition for Obsessive Compulsive Disorder in elementary school but it does not appear tobe a current diagnosis based on the reports. [75] Mitigating Culpability – I accept from Dr. Oswald’s report that at the time of the offence, Mr. Grant’s moral culpability anddecision making may have been reduced because of his ADHD, combined with his use of alcohol. As Dr. Oswald reports on page 13, itis likely that Mr.

Grant knew that driving while under the influence of alcohol was morally wrong but his ADHD would have caused himto underappreciate the consequences of his actions. Collateral Consequences [76] Collateral facts are not aggravating or mitigating at sentencing. [77] I have been told that because of the charges before the court, Mr. Grant has been shunned by former friends, having his houseegged, his tires have been slashed and he has lost his girlfriend. [78] Mr. Grant submits that this offence hit him hard because of his profound need to be liked by others. [79] Mr.

Grant submitted through his counsel that because Mr. Grant suffers from Tourette’s syndrome and ADHD, Mr. Grant’ssafety could be in jeopardy if Mr. Grant receives a jail sentence. Madam Justice Proudfoot addressed this issue in R. v. Chand, (BCCA), at paragraph 13: 13 I do not disagree with the comments of the trial judge when he states the safety of any inmate is in the hands of the correctionsofficials and not the courts. This court, or any other court for that matter, cannot get involved in the safety of an inmate.

That is aclassification problem for the appropriate authorities within the institutional setting. . . . [80] And at paragraph 15: 15 As part of the sentencing process within the general principles of sentencing a court will give consideration to personal circumstancesthat may cause an offender to experience an unusual burden in serving a sentence. Physical disability, and serious illness, are twoexamples that fall into that category.

However, if the point of argument goes to the personal safety of the offender in prison or his statusamongst the inmate population then that is a matter for the corrections authorities and should not be taken into account on sentencing. [81] Before treating health problems as a factor to justify a non-custodial sentence, a judge should also be satisfied that the institutioncannot adequately manage the health condition. The threshold is a high one. Here I am not convinced by the report by Dr. Oswald thatthe BC Corrections cannot deal with the unique situation that Mr. Grant would bring to prison.

Gladue Considerations [82]

Section 718.2(

e) of the Criminal Code directs that a sentencing judge consider all available sanctions, other than imprisonment,that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for alloffenders, with particular attention to the circumstances of Aboriginal offenders. [83] Mr. Grant is of Indigenous heritage and has had a Métis status card since he was four years of age. [84] In the PSR at Exhibit 4, page 5, Mr. Grant is listed as being of Métis ancestry. In the letter from Indigenous Elder Lucas at Tab13, Exhibit 2, Mr.

Grant is listed as being of Salteaux ancestry. Mr. Grant’s father indicates that his mother was from the KeeseekooseFirst Nation in Saskatchewan and his great grandmother attended a residential school in the 1920s or 1930s. Mr. Grant also reports beingin touch with the Native Courtworker from Campbell River, Azalea Milwid. She reports that Mr. Grant is a resilient person (p. 5 of thePSR).

Gladue Report by Ms. Anisa White [ 85 ] At Tab 1 of Exhibit 2 is the Gladue Report prepared on February 14, 2022 by Ms. Anisa White. Ms. White reviewed an impressive amount of documents, reports and websites and contacted 14 people for the preparation of the Gladue Report (p. 2- 4). Mr. Grant is of Métis ancestry. Ms. White confirms that Mr. Grant has Saulteaux ancestry and Keeseekoose First Nations ancestry through his father’s side. Ms. White describes the intergenerational effects, impacts of colonization and intergenerational trauma suffered through his father’s side.

Specifically, residential-school impacts, racial discrimination, loss of language and loss of culture were experienced (p. 5). Ms. White also reports that alcoholism, violence, poverty and drug use were other intergenerational effects (p. 5). Mr. Grant suffered from his father’s alcoholism before his father divorced his mother and then suffered from growing up in a single-parent household, as well as the mental health challenges of ADHD and Tourette’s syndrome. Mr. Grant reports that there was a lot of conflict between his parents at the time of separation (p. 6). Mr.

Grant was considered a special needs student at middle school (p. 6). Ms. White described how Mr. Grant was using alcohol to seek a social connection with others, as well as self-medication to deal with trauma, grief and depression (p. 7). [ 86 ] Ms. White relates that there is a history of alcohol abuse on Mr. Grant’s father’s side, as well as suicide. While Ms. White lists a number of programs at pages 17-19, five of which Mr. Grant is already involved in and one which is located 1½ hours away, she fails to provide any custodial programs for the court’s consideration.

This gives the reader an impression that the Gladue Report is not balanced in terms of Indigenous programs both in custody and out of custody. [ 87 ] The report, other than the lack of custodial resources and programs, is well written, thoughtful and provides to the court information on systemic factors that have brought Mr. Grant before the court, as well as individual and family circumstances that are unique to his situation. Analysis [ 88 ] As Mr. Berry stated at the beginning of his client’s submissions, this is an extremely difficult case.

There have been life-altering impacts because of March 28, 2020. [ 89 ] Mr. Grant has a high degree of moral blameworthiness for this offence. At paragraph 31 of the Laliberte case, Madam Justice Watchuk sets out that: “Sentencing courts have attributed an inherently high degree of moral blameworthiness stemming from the essential nature of impairment as one of its elements”. [ 90 ] Here, Mr. Grant attracted the high moral blameworthiness by driving highly intoxicated on that night. Driving while impaired is a reprehensible criminal act and has caused countless fatalities across Canada.

Driving intoxicated is reckless and dangerous and puts the public at risk. [ 91 ] In this matter, general deterrence and public denunciation are paramount sentencing principles which a jail sentence can address. [ 92 ] As the court held at para. 48 in Laliberte : [48] The range set out in Suter therefore applies. The principles of denunciation and general deterrence require the greatest emphasis in the determination of a fit sentence in this case.

It is fundamental to the sentencing process that the message be repeatedly sent that not merely does society denounce in the strongest of terms driving while intoxicated, those sentences must act as a deterrent to any who would make such choices, intentional risk-taking, that can and do lead to senseless indescribable tragedies and inconsolable grief. [ 93 ] Here, a guilty plea is especially mitigating when a trial might be highly technical and lengthy and complex. Mr.

Grant may have given up certain Charter defences when he pled guilty. [ 94 ] I have given serious consideration to the defence submissions for a conditional sentence order. Even where there are aggravating factors, a conditional sentence order is available. In my view, given the gravity of the offence and the aggravating factors such as high speed and the high level of alcohol readings, an order for house arrest is not sufficient. [ 95 ] I have considered s. 718.2(

e) and the Indigenous ancestry of Mr. Grant. His life has been greatly impacted by intergenerational effects of residential schools, such as alcohol abuse, suicidal ideation, mental health, the divorce of his parents and being raised by his mother primarily as a single parent. These are just a few of the examples. Mr. Grant feels that he has been treated differently because of his ADHD and Tourette’s syndrome. In balancing the Gladue factors with the other aggravating circumstances, it is critical to craft an appropriate and fit sentence for Mr.

Grant that focuses on rehabilitation and takes a new holistic approach as the court outlined in R. v. Mero . The seriousness and gravity of the offence in my eyes warrant a serious period of incarceration. I accept as per paragraph 69 in R. v. Mero that there are both systemic and unique factors that played a

part in bringing Mr. Grant before the court for this offence and I have seriously given thought to whether a non-custodial sentence would be appropriate. I have rejected a non-custodial sentence because of the high moral culpability when there is a drunk driving offence that results in a fatality. There are programs within the BC Correctional programming which focus on rehabilitation such as the Guthrie House. There are options to incorporate an Indigenous Restorative Justice and Rehabilitation Plan into a probationary period and I will do so keeping in mind the serious objectives outlined in R. v. Gladue . [ 96 ] In

summary, I am not imposing the 30-month jail term proposed by Crown counsel as there are many mitigating factors present here. I have considered Gladue , the counselling that Mr. Grant has voluntarily commenced, his guilty plea, youth, family support and mental health diagnosis by the various professionals and his sincere remorse. I have also put a lot of weight on Dr. Darcangelo’s report that Mr. Grant’s risk of reoffending is in the low range if he continues with counselling and abstention from alcohol or drugs. I have accepted that Mr.

Grant’s moral culpability may have been lowered because of his ADHD and his use of alcohol. Specifically, I reject the Crown’s reply that Mr. Grant is not in touch with his Métis ancestry and the implication is that therefore I should not consider R. v. Gladue , or perhaps the implication is that R. v. Gladue has less weight. The Supreme Court of Canada is clear that there will be Indigenous offenders who are not in touch with their culture or traditions because of the impacts of colonization. Crown submitted that the Gladue factors pertaining to Mr. Grant do not overwhelm the sentencing analysis.

To the contrary, a sentencing judge must always

consider R. v. Gladue whenever an Indigenous offender is before the court. [ 97 ] I am not imposing the two-year house arrest that defence counsel has recommended as there is a need to emphasize deterrence, both general and specific, as well as denunciation given the seriousness of the charge and the loss of life. [ 98 ] This jail sentence of 18 months falls below the sentencing range recommended in Suter . I have considered that sentencing ranges are guidelines only and not mandatory. I have also considered that the unique needs and circumstances of this case require a holistic approach to sentencing Mr.

Grant, a person of Indigenous ancestry. I find that his prospects for future rehabilitation are good based on the steps he has taken so far to reduce alcohol drinking, attending counselling programs and by completing a responsible driving program, and his young age. These mitigating factors combined with his prospects for employment, family support and Gladue analysis have lowered time for a jail sentence in my view.

My hope is that by crafting a custodial sentence with a recommendation for rehabilitation for 18 months followed by two years of probation that incorporates an Indigenous Restorative Justice and Rehabilitation Plan , that goal of rehabilitation will be met. Sentence [ 99 ] Having considered the circumstances of the offence and the aggravating and mitigating factors, the law and principles of sentencing, your sentence is as follows: on Count 1 on File 42918, I sentence you to a term of imprisonment of 18 months. [ 100 ] It is recommended by the court that Mr.

Grant be incarcerated at a location and in circumstances acknowledging his Indigenous status. [ 101 ] It is further recommended that BC Corrections consider Mr. Grant for any healing lodge access or Indigenous programming and also for substance abuse treatment and counselling at the Guthrie House program. [ 102 ] It is also recommended that BC Corrections provide the safety and security for Mr. Grant given the issues his counsel has raised in court, which are reflected in the Psychiatric Assessment of Dr. Oswald; namely, increased vulnerability to bullying, abuse and violence because of Mr.

Grant’s Tourette’s syndrome, ADHD and his problems with behavioral dysregulation. [ 103 ] The jail term will be followed by a term of probation for two years. [ 104 ] The following conditions will apply on probation: 2001 You must keep the peace and be of good behavior. You must appear before the court when required to do so by the court.

You must notify the court or your probation officer in advance of any change of name or address and promptly notify the court or the officer of any change in employment or occupation. 2104 You must report in person to a probation officer at 1180 Ironwood Street, Campbell River, BC within two business days after your release from custody, unless you have obtained before your release from custody, written permission from a probation officer to report elsewhere or within a different time frame.

After that, you must report as directed by your probation officer. 2201 When first reporting to a probation officer, you must provide them with the address or location where you live and regularly sleep and your phone number if you have one.

You must not change them without prior written permission from your probation officer. 2401 You must not possess or consume alcohol, drugs, or any other intoxicating substances, except with a medical prescription. 2501 You must attend, participate in and complete any intake, assessment, counselling, or education program as directed by your probation officer. [Not in the picklist] – Mr.

Grant shall report to Indigenous Elder Lucas or another Indigenous Elder at the Tsow-Ten Le Lum Society to develop, participate and successfully complete an Indigenous Restorative Justice and Rehabilitation Plan which will be filed with your probation officer within 21 days of your release from prison. [ 105 ] Victim Surcharge – there will be no victim surcharge given the jail sentence which I have just ordered. DNA Order [ 106 ] Count One on Information 42918-2C is a secondary designated offence.

After considering the factors set out in s 487.051(3) of the Criminal Code , I am satisfied that it is in the best interest of the administration of justice to authorize the taking of samples of bodily substances from you. The samples will be taken from you while you are in custody and you must submit to the taking of the samples. Driving Prohibition

[ 107 ] Pursuant to s. 320.24(1) of the Criminal Code , you are prohibited from operating any motor vehicle on any street, road, highway, or other public place in Canada for a period of two years plus the period of imprisonment. Restitution [ 108 ] Pursuant to

section 738 of the Criminal Code , I order that you pay restitution in the amount of $378 to Kevin and Lorraine Kowbel through the clerk of the court by August 31, 2024. _______________________________ The Honourable Judge K. Whonnock Provincial Court of British Columbia