R. v. Dan, 2017 BCSC 2438

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Dan, 2017 BCSC 2438 Date: 20171006 Docket: 25850-2 Registry: Quesnel Regina v. Cody Robert Francis Dan Before: The Honourable Madam Justice Church Oral Reasons for Sentence Counsel for the Crown: J.C. Johnston Counsel for the Accused: M. Houg Place and Date of Hearing: Quesnel, B.C. October 6, 2017 Place and Date of Judgment: Quesnel, B.C. October 6, 2017 [ 1 ] THE COURT: On the evening of August 16, 2012, Cody Dan made a decision that would forever change his family and his community. After drinking and playing videogames for some hours, Mr.

Dan was intoxicated and he decided to take his brother Jackson's car without his permission and drive the approximately 100 kilometres to Nazko with his cousin, Larry Laurent. Cody Dan had just turned 19 years of age two months earlier and Larry Laurent was just 17 years of age. Witnesses eventually located the vehicle in the ditch on the Nazko Highway where it failed to take a sweeping curve in the highway, left the road, and collided with a stump. Mr. Dan was either ejected from the vehicle or able to escape following the collision.

The vehicle caught fire and Larry Laurent was unable to escape from the burning vehicle and died at the scene. Mr. Dan was taken to hospital and arrested for impaired driving causing death. Blood samples taken after 6:10 a.m. on August 17, 2012 gave readings of 180 and 170 milligrams of alcohol in 100 millilitres of blood. A toxicologist estimated that Mr. Dan's blood alcohol readings at the time of the collision would have been between 213 and 256 milligrams of alcohol in 100 millilitres of blood. [ 2 ] After his release from custody on a promise to appear and an undertaking, Mr.

Dan asked to speak to a police officer and made a statement admitting that he had taken his brother's car without his consent and that he had driven while intoxicated with his cousin, Larry, and driven off the road. He said that he was not driving fast and had become distracted during conversation with his cousin. [ 3 ] For various reasons, the prosecution of Mr. Dan for these offences has taken a considerable time, only some of which was as a result of the actions of Mr. Dan. Although the matter was set for trial, it is clear from Mr.

Dan's statement to police on the morning after his cousin's death that he accepted that he was responsible for what occurred and on June 12, 2017 he eventually pleaded guilty to Count 1 on the indictment, impaired driving causing the death of Larry Laurent. Earlier today, Mr. Dan also pleaded guilty to Count 4 on the indictment, taking a motor vehicle without consent of the owner. [ 4 ] In terms of Mr. Dan's background, he was born on June 18, 1993, and he is 24 years of age. He is a member of the Lhoosk'uz Dene Nation and I have been provided with information about Mr.

Dan's background and the role his aboriginal heritage played in his life and the tragic events of August 16, 2012. That information is contained in a Gladue report dated September 15, 2017, authored by Lynda Price, Gladue report writer and a member of the Ulkatcho First Nation, and a pre-sentence report filed September 14, 2017, authored by Probation Officer P. Reinsdorf. Those reports are contained in Exhibit 1 on sentence. The reports indicate that, like many First Nations children, Mr. Dan had a difficult upbringing.

He and his siblings were exposed to alcohol abuse by their parents from an early age and moved from community to community due to dysfunctional family relationships. Mr. Dan reported that his mother and stepfather would drink heavily and leave him and his siblings to fend for themselves for days on end. He began drinking at the age of 13 years and his alcohol and substance abuse escalated from there. Mr. Dan moved from school to school, causing loss of long-term friendships and relationships and he eventually dropped out of school in grade 10. [ 5 ] Both Mr.

Dan's mother and grandmother attended residential school and suffered mental, physical, and emotional abuse during their stays and Mr. Dan and his siblings suffered from the intergenerational impact of residential school, including living with parents who lacked parenting skills. [ 6 ] After the death of Larry Laurent, Mr. Dan moved to Abbotsford where he lived for two years while working for Mallory Reinforcement. He continued to abuse alcohol and other substances, including methamphetamines and struggled with depression and suicidal thoughts in the wake of this offence. In July 2016, Mr.

Dan suffered drug overdose and believed that he was going to die. He

ended up in hospital for two days and was diagnosed with heart problems related to his past abuse of drugs and alcohol. He reported tothe report writers that he has not used drugs or alcohol since his overdose in 2016. [7] More recently, Mr. Dan has been working with the Aboriginal Education Centre in Quesnel to complete his basic education. He has expressed the desire to share his story with youth to impress upon them the importance of making good choices. The principal ofthe Aboriginal Education Centre, Ms. Kimpton, has expressed that she is willing to work with Mr.

Dan after he has completed hissentence to prepare and present to classes and groups of youth and local high schools. [8] Mr. Dan has also been accessing support and counsel through the Quesnel Tillicum Society as well as using traditionalpractices to help deal with the trauma of what occurred. The Lhoosk'uz Dene Nation continue to support Mr. Dan in his rehabilitationand his recovery. [9] Mr. Dan has no criminal record and this is his first encounter with the criminal justice system.

He also has no drivinginfractions on his driver's abstract. [10] Members of Larry Laurent's family are present here today including his mother, Rebecca Hall, his father, Hank Williams, hisgrandmother, Betty Hall, his grandmother, Victoria Williams, his grandfather, Joe Williams, his brother, Cole Hall, his uncle, RichardLowley, his uncle, Gordon Hall, his auntie, Delilah Michelle, and his nephew, Logan Hall. I have had the benefit of hearing the victimimpact statement read by Larry Laurent's mother, Rebecca Hall.

It was clear from her emotional and heart-wrenching statement that thepassage of time has done little to diminish the profound loss that Ms. Hall and her family have suffered as a result of Mr. Dan's carelessdrunken decision and the needless loss of life. Nothing can bring Mr. Laurent back to his family and, regardless of any sentence I imposetoday, the loss and devastation felt by Ms. Hall and her family will no doubt continue for their lifetime. [11] During the pre-sentence report interview, Mr.

Dan expressed to the report writer his deep sorrow for what happened and that hewished that it was him who had died in the collision. He expressed that he has wanted to talk to Larry's family to tell them how sorry hewas but that they wanted nothing to do with him. During the Gladue report interview, he expressed a desire to participate in restorativejustice to help the family and the community begin to heal. [12] Mr. Dan has accepted responsibility for the events of August 16, 2012 and the loss of life that he caused.

He admitted hisresponsibility when he spoke to Constable Isaac on August 17, 2012, he admitted his responsibility when he pled guilty to these offencesand he stood before the family of Larry Laurent today and took responsibility for what he has done, apologizing to them and begging fortheir forgiveness. It is clear that this incident has had a profound effect on him and his entire family. Several members of Mr. Dan'sfamily are here with him in court and I accept the submission of defence counsel that Mr. Dan's family are here not only in support ofhim, but also to bear the weight and the shame of what Mr.

Dan has done. I am satisfied that Mr. Dan is extremely remorseful forcausing the death of his cousin, Larry. His actions were not deliberate, but rather the result of stupidity, disregard for the risks of drivingwhile impaired, and years of alcohol and drug abuse. I accept that his expressions of remorse are heartfelt. [13]

Section 718 of the Criminal Code provides that the purpose of sentencing is to contribute to respect for the law and themaintenance of a just, peaceful, and safe society by imposing sanctions that have one or more of the following objections: denunciationof unlawful conduct, deterring the offender and other persons from committing offences, separating offenders from society wherenecessary, assisting in rehabilitation of offenders, providing reparation for harm done to the victims or the community, and promoting asense of responsibility in offenders and acknowledging harm done to the victims and the community. [14] Sentencing is an individualized process and emphasis is to be given to different objectives of sentence according to theparticular offence and the particular offender.

In this case, while the paramount objective to consider is protection and safety of thepublic, the objectives of sentencing in this case include denunciation, deterrence, assisting in the rehabilitation of Mr. Dan andacknowledging the harm done to Mr. Laurent and his family and to the community. [15] In R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, the Supreme Court set out the unique process that must befollowed when sentencing aboriginal offenders.

Paras. 75 and 81 state: [75] The role of the judge who sentences an aboriginal offender is, as for every offender, to determine a fit sentence taking intoaccount all the circumstances of the offence, the offender, the victims, and the community. Nothing in

Part XXIII of the Criminal Codealters this fundamental duty as a general matter. However, the effect of s. 718.2(e), viewed in the context of

Part XXIII as a whole, is toalter the method of analysis which sentencing judges must use in determining a fit sentence for aboriginal offenders.

Section 718.2(e)requires that sentencing determinations take into account the unique circumstances of aboriginal peoples. … [81] The analysis for sentencing aboriginal offenders, as for all offenders, must be holistic and designed to achieve a fit sentence inthe circumstances. There is no single test that a judge can apply in order to determine the sentence. The sentencing judge is required totake into account all of the surrounding circumstances regarding the offence, the offender, the victims, and the community, including theunique circumstances of the offender as an aboriginal person.

Sentencing must proceed with sensitivity to and understanding of thedifficulties [that] aboriginal people have faced with both the criminal justice system and society at large. When evaluating thesecircumstances in light of the aims and principles of sentencing as set out in

Part XXIII of the Criminal Code and in the jurisprudence, thejudge must strive to arrive at a sentence which is just and appropriate in the circumstances. [16] A sentence should also be increased or reduced to account for aggravating or mitigating factors related to the offence or theoffender. Counsel are in agreement regarding the aggravating and mitigating factors in this case. The aggravating factors are the natureof the offence itself. Larry Laurent lost his life and he was only 17 years of age. The mitigating factors are that Mr. Dan does not have acriminal record or a driving record. Mr.

Dan was very young at the time of this offence having just turned 19 years of age two monthsprior. Mr. Dan confessed this crime to Constable Isaac after he was released from custody and Mr. Dan pleaded guilty to these offencesthereby making it unnecessary to subject Mr. Laurent's family to the further trauma of a trial. Since this unfortunate event, Mr. Dan hasmade efforts to address his alcoholism and substance abuse and has maintained his sobriety since approximately July of 2016. He has

also engaged in counselling to assist in his rehabilitation. He continues to take responsibility for his actions and plans to share his story with other youth to help them understand the tragic consequences of such behaviour and encourage them to make good choices. [ 17 ] Both Crown and defence submit that the appropriate sentence in this case is a period of incarceration for two years less a day followed by a period of probation for 12 months and a three-year driving prohibition. In support of that joint submission, Crown and defence counsel have provided me with the case of R. v.

Cardinal , 2015 BCSC 2536 , a case whose facts bear some considerable similarity to the facts in this case, in which the sentencing judge imposed the same sentence proposed in this case. I also note that the sentence proposed is within the range of sentence referred to by the Supreme Court of Canada in the case of R. v. Lacasse , 2015 SCC 64 . [ 18 ] Although a judge is not bound to accept a joint submission, a judge should not reject a submission unless it is contrary to the public interest and the sentence would bring the administration of justice into disrepute.

In this case, the sentence proposed by Crown and defence counsel balances the need for denunciation and deterrence on one hand and the role played by Mr. Dan's aboriginal background and his particular circumstances on the other. Mr. Dan's background and circumstances put in context and explain at least to some degree how this tragedy happened. This tragedy has resulted in enormous loss to Larry Laurent's family and the proposed sentence also addresses the need to deter others from this kind of driving behaviour.

This is not a sentence that is contrary to the public interest and, in the circumstances of this case it is a fit and appropriate sentence. [ 19 ] Mr. Dan, would you please stand. [ 20 ] Mr. Dan, on Count 1 of the indictment, I sentence you to be incarcerated for two years less a day. [ 21 ] The period of incarceration will be followed by a period of probation for 12 months on the following conditions, and Madam Clerk, I will provide you with a copy. [ 22 ] You must keep the peace and be of good behavior. You must appear before the court when required to do by the court.

You must notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation. [ 23 ] You must report in person to a probation officer at the probation office in Quesnel, B.C., within two business days after your release from custody unless you have obtained, prior to your release, written permission from the probation office that you report elsewhere or within a different timeframe.

After that, you must report as directed by your probation officer. [ 24 ] You must not possess or consume alcohol, drugs, or any other intoxicating substance except in accordance with a medical prescription. [ 25 ] You must attend, participate in, and successfully complete any intake, assessment, counselling, or program as directed by the probation officer. [ 26 ] You must participate in a restorative justice program if so directed by the probation officer. [ 27 ] You must not occupy the driver's seat of any motor vehicle. [ 28 ] You must provide a copy of this order to any peace officer who asks to see your driver's licence. [ 29 ] Do you understand those conditions, Mr.

Dan? [ 30 ] THE ACCUSED: Yes, Your Honour. [ 31 ] THE COURT: All right. I am also prohibiting you from driving for a period of three years commencing at the end of the period to which you have been sentenced to imprisonment. [ 32 ] On Count 4 of the indictment, I sentence you to 30 days jail to be served concurrently with the sentence on Count 1. [ 33 ] Good luck, Mr. Dan. [ 34 ] MR.

HOUG: The victim fine surcharges I would ask that Your Ladyship determine that he does not have the means to pay and be sentenced to default one day on each count. [ 35 ] THE COURT: I think the date of the offence predates the changes to the Criminal Code . [ 36 ] MR. HOUG: Oh, very well, thank you. [ 37 ] THE COURT: -- in which case, I think given the circumstances of Mr. Dan that I have read in the reports, I am satisfied that this would cause him undue hardship so I will waive the victim fine surcharge. [ 38 ] MR. HOUG: Thank you, My Lady. [ 39 ] THE COURT: All right, thank you, counsel.

“The Honourable Madam Justice Church”