R. v. Nikirk, 2020 BCPC 244

Citation: R. v. Nikirk 2020 BCPC 244 Date: 20201221 File No: 175695-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TENESSA RAYANN LYRIC NIKIRK ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D.M. McKIMM Counsel for the Crown: J. Patterson Counsel for the Defendant: T. Morino Place of Hearing: Victoria , B.C. Dates of Hearing: November 25, 26, 27, 28, 2019; December 2, 3, 2019; January 22, 2020 Date of Judgment: December 21, 2020 I.

SUMMARY [ 1 ] On January 22, 2020, the Court convicted Tenessa Rayann Lyric Nikirk (“the Accused”) of dangerous driving causing bodily harm contrary to

section 249 of the Criminal Code . It falls to the Court now to craft a fit and proper sentence for that offence. After

considering all of the principles of sentencing and the very able submissions of counsel I am satisfied that a sentence of 2 years in custody is the appropriate sentence for this very serious offense. II. FACTS A. The Driving [ 2 ] The circumstances of the driving in this matter are exhaustively covered in the reasons for conviction found at 2020 BCJ. No. 122 . In brief they are; during rush hour traffic on a frosty winter morning in suburban Victoria, the Accused was driving her Mercedes SUV on various two-lane suburban roads. Over a distance of 5 1/3 km she, at various times, sent and received 25 text messages.

She tailgated other drivers. She passed two cars at once exceeding speeds of 95-100 km/hr in a 50 km/hr zone. At the point of the road where this pass was executed the road was a narrow two-lane road with no shoulders or any room to avoid any hazards that might occur. She continued driving well in excess of the speed limit until she approached an intersection with a well-marked crosswalk. [ 3 ] She entered the intersection and appeared not to notice several clear signs that the crosswalk she approached required special attention, indeed it required her to stop.

One vehicle travelling in the opposite direction had already stopped to allow a pedestrian to cross at the crosswalk. Another vehicle at the crosswalk, noting the Accused did not appear to be slowing down, sounded his horn. The Accused did not respond to any of these clues. Ultimately the Accused entered the crosswalk travelling in excess of the speed limit and struck the victim who was walking in the crosswalk. After the impact, the Accused brought her vehicle to an immediate stop and was, throughout, cooperative in the investigation. [ 4 ] The eleven-year-old victim suffered catastrophic injuries. B.

The Victims [ 5 ] Criminal responsibility and the principles of sentence require the court to assess an offender’s responsibility in light of the harm caused by her behaviour. Here the harm is grave indeed. The young eleven-year-old girl struck while crossing the crosswalk suffered a catastrophic, traumatic brain injury. The right side of her brain is entirely destroyed and the left side is seriously compromised. Three years later she remains in a vegetative state. While she can generally breathe on her own, she regularly requires the assistance of medical devices that are attached to a permanent trachea tube.

She is nonresponsive. [ 6 ] The family of this child has been forever damaged by the Accused’s criminal behaviour. They have filed thoughtful and comprehensive victim impact statements. I can do no better to describe their pain than to quote from the statement of the victim’s mother: I have cried more in the last 2+ years than I have in my entire life combined and the tears keep coming. [ 7 ] And further I feel cheated.

To witness the kids around her age her friends she has known since kindergarten and though she just befriended in middle school all grow up, live life, become teenagers, experience middle school and now high school (my daughter) has been cheated of all of that. [ 8 ] And further The life of our daughter has forever changed; the life of our family has forever changed. C. The Accused [ 9 ] The Accused is presently 24 years old and was slightly in excess of 21 years old at the time of the accident.

She has no prior criminal record though her driving record shows three speeding tickets before this accident and, perhaps more importantly, one speeding ticket after this accident. She was raised by a single mother and enjoys a supportive family. She is also in a supportive long-term relationship. She has a positive work history with an emphasis on the care of children. [ 10 ] Throughout her life she has suffered with symptoms of depression that have been significantly exacerbated by this offense and the recognition of the damage she has done through her criminal behaviour.

She expressed genuine remorse and I am satisfied that she suffers from real, profound and enduring remorse for what she has done. [ 11 ] There is no evidence to suggest that the Accused poses any risk to reoffend. [ 12 ] The Accused offered to undertake restorative justice to assist the victim’s family with healing. The victim’s family declined that offer. She has also offered to work in the community to speak to other young people about the perils of distracted driving. Regrettably, that offer has yet to be accepted. D.

Position of the Parties [ 13 ] The Crown asked the Court to impose a sentence of 24 to 30 months in a federal penitentiary. They submit that this driving places the Accused at the high end of the culpability spectrum for this offense. They point to the extreme harm caused by her behaviour. They say that the principles of denunciation and deterrence demand a sentence at the low end of the federal range. [ 14 ] The Accused askes the sentence be limited to a sentence served in the community under a conditional sentence order or, at worst, an intermittent sentence to allow the Accused to continue her pro-social life.

She submits that this is dangerous driving of an inadvertent nature, not deliberate, she says that the need for specific and general deterrence as well as denunciation can all be met with the imposition of a conditional sentence order with serious restrictions on her liberty.

E. Procedural History [ 15 ] The Accused is charged by indictment with one count of dangerous driving causing bodily harm contrary to

section 249 of the Criminal Code . She elected to be tried by this Court. Following a seven-day trial she was convicted as charged. [ 16 ] By operation of

section 742.1(e)(i), the Accused is not entitled to a conditional sentence order. Shortly prior to sentencing, the Accused filed a Constitutional Notice challenging the constitutionality of that

section of the Criminal Code . The parties agreed and urged the court to proceed with that constitutional challenge in a two-step manner. First, decide if the Accused will receive a federal sentence, if so then the Constitutional challenge is moot. Second, decide if the sentence is one of two years or less, in which case decide whether the court would grant a conditional sentence, whatever the length might be. Only if the Court decides that a conditional sentence is the appropriate sentence for this offense and this offender should the court entertain the constitutional challenge of

section 742.1(e)(i). [ 17 ] While the Court expressed concern that such a procedure leaves an inadequate record for appellate review, both counsel urged this approach as a matter of judicial expediency. The Court acceded to that request. I make no determination on the merits of any constitutional challenge to

section 742.1(e)(i). I have made my decision assuming a conditional sentence is available, though obviously without further decision on that question that is not the case. F. Analysis [ 18 ] Where the Court is charged with determining a fit sentence for dangerous driving, it must consider the gravity of the offense including the harm caused as well as the responsibility of the offender. So too must the Court consider the aggravating circumstances and the mitigating circumstances of the offense and the offender respectively.

The Court must consider the sentence imposed on similar offenders in similar circumstances. The Court is called upon to send a message to other members of the public both that the court denounces the behaviour and that the sentence will be one that deters both the Accused and others. At the same time the court must show restraint in its restrictions on the liberties of the Accused and consider all other options before imposing a period of incarceration.

See Criminal Code sections 718, 718.1 & 718.2. [ 19 ] When sentencing offenders for dangerous driving the primary purpose of sentence will always be general deterrence and denunciation. Drivers operate high powered machines which, by their nature, are capable of enormous harm. All members of society must depend for their safety that all drivers of motor vehicles will operate those vehicles with a high level of responsibility.

When they do not do so they put all of the members of the public; pedestrians, cyclists and other drivers at risk of serious harm or death. [ 20 ] I am bound by the language of the Court of Appeal when they write:

(37) Dangerous driving causing bodily harm is widely recognized as an offence of considerable gravity. Pursuant to s. 249(3) of the Criminal Code , the maximum sentence is 10 years imprisonment. When an offender drives dangerously the public is needlessly placed at great risk of harm sometimes with life altering consequences. While the consequences are unintended, the risk-taking that produced them is undertaken by choice: Rawn at para 41; R. vs. Gill, 2010 BCCA 388 at para 25 .

(38) General deterrence and denunciation are the primary sentencing goals in dangerous driving cases. Members of the public share its highways and are entitled to do so in the expectation of reasonable safety based, in part, on responsible use of motor vehicles by all concerned. As Madam Justice Epstein emphasized in Rawn at paras. 49-50, driving is a privilege that can wreak great havoc when it is exercised recklessly. Accordingly, sentences for dangerous driving must unambiguously express society’s condemnation of the conduct and serve to warn like-minded others that it will not be tolerated.

(39) Driving offences are unusual in that otherwise law-abiding citizens like Mr. Bosco may be inclined to commit them without fully appreciating their criminality. Driving is a commonplace activity, and, to varying extents, human frailties like impatience, inattentiveness and impulsivity are ubiquitous. When drivers irresponsibly indulge such frailties from behind the wheel they imperil others in their orbit, sometimes with catastrophic consequences. All drivers are expected to know this and govern themselves accordingly. When they do not and harm ensues, the result is no mere accident. It is a true crime: R. v. Gilles , 2012 BCSC 775 at para.25; Johnson at para. 30 .

(40) The factual circumstances of dangerous driving cases tend to vary widely. That being so, the range of appropriate sentences is quite broad. Factors such as the offender’s age, the circumstances of the accident, the duration of the dangerous driving, the existence or absence of a criminal record, the degree of deviation from driving norms, the particulars of the highway and its use and driving conditions are all relevant factors for consideration. Although other cases provide helpful guidance, determining a fit sentence in a dangerous driving case is a particularly fact sensitive exercise: R. vs.

Sadler , 2009 BCCA 386 at para 34 . R. vs. Bosco , [2016] B.C.J. 193 (B.C.C.A.) [ 21 ] In this case the driving is particularly aggravated. The offensive driving took place over a lengthy period of time and for a significant distance, 5 1/3 km. The Accused not only drove while distracted, that is texting, when she was not texting she was driving well in excess of the speed limit on narrow suburban roads. The roads were busy with other motor vehicle traffic and pedestrian traffic. The elements of bad driving which constitute this offense are entirely wilful and deliberate.

While it may not be at the very highest end of personal culpability, it is extremely high. While it may not be street racing, it is but one small step short of that conduct. [ 22 ] The injuries this behaviour has inflicted on the victim and her family is catastrophic and permanent. While she did not cause a death, the most sacred of human values, she caused harm one small step short of that. She has destroyed an innocent human being’s life forever.

For these reasons the sentence must be one that calls for a strong statement of denunciation and condemnation. [ 23 ] With respect to deterrence, I am particularly mindful that, by its nature, driving offenses are often committed by those who lead otherwise blameless and productive lives. There is no question that every day our fellow drivers repeatedly use their cell phones to text while they drive. The problem is an endemic.

While high fines may be the civil penalty for such offending, the real consequences of the behaviour should really be understood in terms of the potentially catastrophic consequences that can flow to innocent third parties as a result of deliberately choosing to drive while using a cellular telephone. Members of the public must understand, that if you choose to

deliberately drive while distracted you are posing a very serious risk to other members of the public. If that risk is ever realized, there will be serious consequences. [ 24 ] In this case the distracted driving is made worse by the grossly excessive speed driven by the Accused in a quiet residential area. The speeding, as I say, was in the presence of relatively busy traffic during the morning rush hour. Pedestrians were present, children were present and other vehicles were present.

The roads were wet and just past frosty. [ 25 ] At the intersection where the accident occurred the Accused missed many clear warning signs of the hazards ahead. There is no explanation provided as to how the child in the crosswalk could have been completely missed by the Accused. There is no evidence the Accused even slowed down prior to entering the crosswalk and striking the victim. [ 26 ] Considering all of those factors, in my view, the responsibility of this offender considering the driving alone is very high.

When one considers the responsibility of the offender together with the serious and life altering injury sustained by the innocent victim, I consider the moral blameworthiness of this offense and this offender very high end or range. [ 27 ] I’ve considered the many cases provided with respect to the range of sentence for this offense. Each case is remarkably unique, but I agree that all decisions are particularly fact sensitive in these cases. R. vs. Bosco ,

(2016) B.C.J. No. 193 citing R. vs. Sadler ,

(2009) B.C.C.A. 386 I agree that the range of sentences for this offense ranges up to two years less a day with sentences in excess of that in certain aggravated cases. This is such as aggravated circumstances. R. v. Markos

(2019) O.J. 672 (Ont. C.A.) at para. 26 . [ 28 ] While the principles of retribution and denunciation are foremost in my consideration, I also find that this is a case where specific and general deterrence are highly applicable. Distracted driving continues to be a plague on our highways and roads. Everyone who drives sees the activity carried out by otherwise law-abiding citizens regularly. Citizens need to understand that what they are doing is highly dangerous to others and could very possibly lead to severe harm or death.

To those people who text and drive, they must understand that if serious consequences ensue there will be serious penalties. [ 29 ] Having said all of that, I must also remember that it is important that I consider the unique circumstances of this offender. She is young. She has no prior criminal history. Though her driving history suggest that she drives too fast as a matter of course it is not a particularly serious driving history. To her great credit I do accept that she is extremely remorseful and volunteered to do restorative justice.

It is her otherwise good character and remorse that compels me to show restraint and sentence this offender to the lowest of federal sentences, but the highest end of the usual range of sentences. [ 30 ] Considering all of the above it is my view the appropriate sentence is one of two years. That being the case, except for the statutory prohibition under

section 742.2(e)(

i) the Accused is otherwise eligible to serve the sentence in the community. However, in my view, the Supreme Court of Canada words in R. vs. Proulx , (2000) 1. S.C.R. 61 are particularly appropriate when they write; Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence.

Proulx @ para. 114 [ 31 ] The driving in this case calls for a sanction that will deter others and a sentence of real incarceration will be a meaningful application of the principles of general deterrence and significantly more effective than the imposition of a conditional sentence. [ 32 ] So too does a sentence of real incarceration more properly reflect the moral blameworthiness of this offense, considering particularly aggravated nature of the driving and the gravity of the consequences.

In the result, while I agree that all of the principles of sentence might be met by the imposition of a conditional sentence in this case they are not. G. Sentence [ 33 ] Considering all the principles of sentence I sentence you to a period of incarceration a federal penitentiary of two years. I further you prohibit you from driving anywhere in the Dominion of Canada for a period of three years thereafter. ________________________________ The Honourable Judge D.M.

McKimm Provincial Court of British Columbia CORRIGENDUM: [ 34 ] Following rendering judgment, Crown Counsel advised the Court that a sentence of two years was not eligible for a conditional sentence in any event. The Court confirmed that the custodial sentence imposed is not one that would be entitled to the benefit of a conditional sentence order, regardless of its length.