R. v. Friesen Date:, 2011 BCPC 418

Citation: R. v. Friesen Date: 20111215 2011 BCPC 0418 File No: 178341-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NATHAN JAMES FRIESEN ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: C. Pike Counsel for the Defendant: M. Jetté Place of Hearing: Surrey , B.C. Date of Hearing: October 26, 2011 Date of Judgment: December 15, 2011 [ 1 ] THE COURT : We have now reached the point in these proceedings where my role becomes perhaps clear. I have the responsibility to impose sentence here this afternoon.

In doing that, I have some notes from which I will speak which I hope will help all of you understand how it is that I come to the decision I do about an appropriate sentence, and then I will impose that sentence.

This process will probably take about half-an-hour. [ 2 ] Nathan James Friesen is before the court following his plea of guilty to the charge that on or about the 31st of July 2009 at or near Langley, British Columbia he did operate a motor vehicle in a manner that was dangerous to the public having regard to all the circumstances including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably be expected to be at that place, and thereby did cause the death of Gordon Thomas Lothian, contrary to s. 249(4) of the Criminal Code . [ 3 ] This is an offence which carries a maximum sentence of 14 years incarceration.

Other sentencing options are available, and as you have heard counsel describe today, a joint submission has been placed before the court which recommends that I impose a fine and place Mr. Friesen on a probation order for a period of time. As I explained not long ago, my responsibility is to consider that joint submission, consider the other sentencing options that are available to the court, evaluate those against the purpose and principles of sentencing under our criminal regime and then impose what I view to be a fit sentence.

The responsibility therefore should be clear to everyone; the determination of a fit sentence rests with the court. I take account, however, of a joint submission that has been made to

me by experienced and very well-respected counsel and that carries considerable weight when I determine whether or not that submission should be accepted. But at the end of the day I have to be satisfied that it meets the purpose and principles of sentencing in a case such as this. [ 4 ] The circumstances of this offence are the following. Mr. Friesen worked a graveyard shift at the warehouse of his employer which I understand was Black Press on the night of July 30th and the early morning hours of July 31st of 2009. He finished work sometime around 8:00 a.m. on the 31st of July. He felt ill throughout his shift.

The plant where he was working was hot, the work was highly physical. He felt feverish, he felt nauseated as well, during that shift. I understand that he took several caffeine pills in order to try to keep himself energized. He took some Rolaids because of the nausea. But the feeling of illness and fatigue continued to wear on him. It was observed by colleagues. There is evidence available that colleagues observed that he was tired, that his face was saggy and that he appeared sleepy. He completed the shift. [ 5 ] He then left the plant, got into his motor vehicle, a Cavalier, and he began to drive home.

He wanted to get home in order to go to bed. His route took him to the intersection of 28th Avenue and 200th Street which was his usual route. I understand that he was travelling eastbound on 28th Avenue. A stop sign controls traffic in that direction at the intersection of 200th Street. Mr. Friesen in all likelihood fell asleep at the wheel of his vehicle as he approached that stop sign. He drove through the stop sign. Gordon Thomas Lothian was travelling to work southbound on 200th Street. He was driving a truck with a trailer attached.

He operated a landscaping business and was heading to his first job of the day. He was alone in the vehicle. Mr. Friesen's vehicle travelled through the stop sign. It appears as though no braking occurred. There is no evidence of braking on the street. The evidence is that he was travelling at a normal speed within or very close to the speed limit. His vehicle travelled through the stop sign and struck Mr. Lothian's truck at the passenger door. Mr. Lothian's truck, with the effect of the trailer swinging from impact, flipped onto its side and spun clockwise into the northbound lane of 200th Street.

The trailer disengaged and landed to the east. [ 6 ] A vehicle carrying the Fame family was travelling north on 200th. They were unable to avoid colliding with the roof of Mr. Lothian's flipped truck. Mr. Friesen's vehicle spun to a stop in the southbound lane of 200th Street. Mr. Friesen was relatively uninjured. He got out and checked first the Fame vehicle and then he sought a cell phone from a bystander. He called his father and then he called 9-1-1. There is no tape of the 9-1-1 call available but there is no disagreement among counsel that the 9-1-1 operator asked Mr.

Friesen to check the driver of the truck, that is, Mr. Lothian and to determine whether he could detect a pulse. [ 7 ] Mr. Friesen made his way through a gathering of people at Mr. Lothian's truck. He climbed inside the vehicle and he felt Mr. Lothian's neck for a pulse but could not find one. He observed Mr. Lothian changing colour. He was unable to help further and he got out of the vehicle. Police and Emergency Services arrived moments later. Gordon Thomas Lothian was dead at the scene. [ 8 ] Tonya Fame and her husband Samuel were travelling with their children to the funeral of Mr. Fame's sister.

They all suffered injuries in the collision with Mr. Lothian's truck. Ms. Fame's injuries were the most serious. She was unconscious and was removed from the scene by helicopter to hospital. Both her and her husband continue to suffer from the injuries that they received in this incident, at least up to the date that their victim impact statements were completed as filed here in court and which I have reviewed. Those injuries have had and continue to have a significant effect on their work circumstances, family enjoyment and their general quality of life.

They graphically describe the impact of those injuries and the effects of this day. They continue to suffer pain and emotional distress over these events and the circumstances in which they occurred because they were unable to attend the funeral of Mr. Fame's sister, which continues to cause distress for them. [ 9 ] In determining a fit sentence under the Criminal Code I am required to consider the purpose and principles of sentencing which are described in sections 718 to 718.2 of the Criminal Code . You have heard this said before.

It is said in virtually every case of this kind that comes before the courts and it is no less relevant here. This court and the sentence that I impose under the Criminal Code regime can never replace the loss that has been suffered by the Lothian family or the injuries that have been suffered by the Fame family. The sentencing process here is not intended to replace that loss or to compensate in some tangible way that can never really be satisfactory. The sentence that I impose is intended to address concerns that the community has to meet the responsibilities and cause drivers and this individual Mr.

Friesen to address and take responsibility for their conduct and to ensure as much as the sentencing process can, that events like this occur as infrequently as is possible.

The sentence I impose must contribute to respect for the law and the maintenance of a just, peaceful and safe society and addressing in that process the following objectives: to denounce unlawful conduct; to deter this offender and others in a general way; to separate an offender from the community if necessary; to contribute to rehabilitation of an offender; to provide reparation for harm done to victims and to the community; to promote a sense of responsibility in an offender and acknowledgement by that offender for harm done to victims and to the community.

I must take account of aggravating and mitigating circumstances relating to the offence and the offender. I must take account of sentences imposed on offenders in similar circumstances. I must consider all available sanctions other than imprisonment that are reasonable in the circumstances. The sentence I impose must not deprive an offender of liberty if less restrictive sanctions are appropriate in the circumstances.

The sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 10 ] From this you will see, I hope, that the imposition of a sentence for a serious criminal offence as this is, is a complex task. It is not an arbitrary process accomplished through the simple application of a mathematical formula.

Our sentencing process in this way and in its complexity asks the court to assess each individual offender and the offence committed and to balance in the result the objectives and interests that I referred to. [ 11 ] I am going to speak for a moment to the members of the Lothian family that are here today. Gordon Thomas Lothian was 29 years of age at the time of his death. He was a young man with a large life ahead of him. He was a member of a very close and loving family. I have heard presented here today victim impact statements read by his mother Noreen, his sister Christine, and his partner Kristy McLean.

Noreen's victim impact statement I would say is presented on behalf of herself and Mr. Lothian's father Tom. Those victim impact statements are moving testaments to a son who meant the world to his family in a way that cannot be expressed easily in words and whose loss continues to be felt in the most profound way. This loss is captured eloquently in the following paragraph which I choose to read from Noreen Lothian's victim impact statement. She said this: There is still so much I could say. Our life is a jigsaw puzzle in which we cannot complete the picture. No matter how hard we try, one

main piece is missing. Gord's absence is constantly the elephant in the room that as time goes on, for self-preservation we do not talk about quite so much, although everyone knows it's there. I light a candle next to his picture at family dinners. The days leading up to May 30th, his birthday, and July 31st are filled with tension. The Christmas season is difficult and I can't wait for it to be over. I can feel my anxiety build with the court dates.

Tom's emotions are still so close to the surface and eruptive that I don't think he will attend, and that is best. [ 12 ] Those words help us to understand how fleeting life can be, and the challenges family and friends must face in grieving, coming to terms with loss of a life so young and then finding the strength to pick up, take support from each other and move forward. [ 13 ] Nathan James Friesen is 22 years of age. He was 20 at the time of this offence. He has no previous criminal or Motor Vehicle Act record. He had not consumed alcohol or any other illicit substance leading up to these events.

At a young age, Mr. Friesen struggled in the conventional school environment. He was diagnosed with a learning disability. He moved into the Apex Alternate School program in high school and completed Grade 12. That school environment worked to his advantage and he did well there. He was recognized as the most improved student. Following school he has worked at several occupations but most recently at Basalite Concrete Products. Plant manager Randy Martin has provided a letter in which he notes Mr. Friesen's good character and diligent work ethic. It is a strong letter of recognition on Mr. Friesen's behalf. Mr.

Friesen has worked on a part-time basis at Black Press where he was working on the day of these events. [ 14 ] Mr. Friesen is also a member of a strong and supportive family group. His parents are separated, but remain on good terms and both are here today. His mother and his father, his sister, his girlfriend of four years are all present in court and have written letters of support which I have reviewed.

It is important to know that strong support is present for a person when a fit sentence is considered because it assists the court in knowing there are people close to an offender who want him to succeed and to address the issues that he has to address for that to occur. This assists the court in assessing the impact of a sentence on rehabilitative and restorative objectives. [ 15 ] Mr. Friesen has been assessed by and is receiving treatment from Dr. David Aboussafy. He has provided a report. He has in that report noted the need for objectivity, despite a professional relationship with Mr. Friesen.

No issue was taken with that report, nor any concern expressed respecting its objectivity and I accept it on that basis. The report documents a history in Mr. Friesen of significant depression in childhood. Following the events of July 31st, 2009 he was prescribed medication by others which did not work well. Under Dr. Aboussafy's care, Mr. Friesen has discontinued that medication but suffered withdrawal symptoms as a result. It is clear from the report, which essentially corroborates the observations of family and friends that Mr.

Friesen has suffered great distress over his responsibility over these events and the losses that have followed. The report describes symptoms of profound dysphoria, hopelessness and suicidal ideation. His sleep is profoundly disturbed. He suffers agitation, anxiety and nightmares. Treatment continues to be focused on crisis management. [ 16 ] The degree of trauma experienced by Mr. Friesen is reflected in the following, which I take from Dr. Aboussafy's report at page 3.

I will quote the following paragraph: With respect to psychological treatment provided, the sessions to date have focused primarily on crisis management, such as safety and action plans for suicidality and strategies for some degree of self-regulation. Close support of Mr. Friesen's mother and girlfriend have been instrumental in ensuring some degree of safety. If such support and supervision was not present, Mr. Friesen's presentation may have warranted psychiatric hospitalization, given the intensity of his dysphoria, agitation and suicidality. He reports that Mr.

Friesen suffers post-traumatic stress disorder and major depressive disorder, requiring urgent psychiatric and psychological treatment. [ 17 ] I am satisfied, based on the observations of Dr. Aboussafy and the letters filed, that Mr. Friesen feels extreme remorse for his conduct. His letter of apology read in court by Mr. Jett é , his counsel, and provided to the family of Mr. Lothian, demonstrates this graphically.

Although his plea of guilty was entered on what would be the first day of trial, I understand discussions had been underway between counsel from a much earlier stage to address a resolution short of trial. Mr.

Friesen has not driven since these events occurred. [ 18 ] Sentences in cases like this usually involve the balancing of concerns the community has for deterrence both general and specific, and denunciation, which often argue for a custodial sentence, balanced against rehabilitative and restorative principles which usually argue for a sentence served in the community but with proper attention to acknowledgement of harm done and acceptance of responsibility.

As you have heard discussed here today by counsel, a custodial sentence served in the community by way of a conditional sentence order is no longer available to the court as a sentencing option. Both Crown and defence counsel have urged me not to impose a conventional jail sentence. [ 19 ] The particular circumstances of the offence and the offender must be considered. In this case, Mr. Friesen drove a motor vehicle when he was ill and fatigued. He should not have done so. He should have known that in doing as he did, he put others in danger. He went ahead and he drove and these tragic consequences followed.

There is no minimizing the seriousness of this conduct and the consequences. But I must assess his moral culpability, and in assessing the degree of his culpability I found the following passage from the decision of Mr. Justice Cullen in a case called R. v. Kwasnica, in the Supreme Court of British Columbia in 2006 to be helpful. In a case involving a driver who drove through an intersection and struck and killed a pedestrian, Mr. Justice Cullen stated the following. This quotation I take from the decision provided by Mr. Jett é in R. v. Biring . At page 25 Mr.

Justice Cullen stated the following: This is not a case like some where there are aggravating circumstances such as excessive speed or drinking or a protracted period of dangerous or aggressive driving . In those cases, the moral culpability of offenders is regarded as at the higher end of the scale because it involves the offender deliberately engaging in behaviour that creates the very risk leading to the offence, whereas in cases such as the present one it is a matter of failing to respond to an existing risk.

On the scale of moral culpability therefore this case, while not at the lowest end, is nearer than those cases involving the deliberate creation of risk through activities such as drinking and driving, street racing or prolonged aggressive driving. The offender's misconduct here… was essentially contained within a few critical seconds in which he disregarded his duty to avoid a clear risk. [ R. v. Kwasnica BCJ 3504 (BCSC, Cullen, J.)] Now, every case is different, and Mr. Friesen's conduct differs from that in R. v. Kwasnica , but it is the assessment of the level of moral

blameworthiness which I find helpful in my consideration of this case. [ 20 ] Here, there are none of those frequently observed aggravating features such as the evidence of a pattern of poor driving or aggressive driving, the presence of drugs or alcohol, excessive speed. There is a high level of remorse. Mr. Friesen faces civil consequences. There is no other record, criminal or Motor Vehicle. There is before the court a person loved, respected and supported by family and friends who is, and will carry the burden of his conduct on his shoulders into the future. I take account, as well, of Dr.

Aboussafy's conclusions and his opinion about the importance of the ongoing close support Mr. Friesen requires from those close to him, which would not be available in a prison setting. [ 21 ] In balancing the purpose and principles of sentencing, I have concluded that the sentence jointly recommended by counsel is appropriate and fit. A custodial sentence, in my view, would be disproportionate to Mr. Friesen's degree of moral blameworthiness. [ 22 ] Mr. Friesen, could you stand, please. I have accepted the recommendation jointly put forward by counsel. I impose a fine of $1500 plus the victim fine surcharge.

In addition to that, I am placing you on a probation order for a period of two years. [ 23 ] The conditions are that you keep the peace and be of good behaviour. You must report to a probation officer at an address to be provided before you leave the courthouse today, before four o'clock in the afternoon tomorrow, which is December the 16th, 2011, and you are thereafter to report as directed by the probation officer. [ 24 ] You will reside where directed by the probation officer.

You are not to change that address without the prior written approval of the probation officer. [ 25 ] You will attend, participate in and complete to the satisfaction of the probation officer any assessment, treatment or counselling that may be directed by the probation officer. [ 26 ] You will complete to the satisfaction of the probation officer and the community work service officer 100 hours of community work service before the end of the 18th month of the probation period.

I believe that covers the terms that have been proposed by counsel to be included in the probation order. [ 27 ] The final issue to address is the DNA databank requirements. This is a secondary designated offence under the DNA databank provisions. I have considered whether it is appropriate that you provide a sample of your DNA to the national DNA databank. I have considered the circumstances of this offence, the past history. I am satisfied that it is not necessary that you provide a sample to the databank and I will not make that order. [ 28 ] Time to pay? [ 29 ] MR.

JETTE: Your Honour, six months would be adequate time to pay, if that's agreeable. [ 30 ] THE COURT: The fine and the victim fine surcharge are going to be due and payable on or before the 30th of June 2012. That is just over six months. [ 31 ] MR. JETTE: Thank you, Your Honour. And the other aspect of the joint submission that was placed before you was the driving prohibition. [ 32 ] THE COURT: Yes, thank you. The Crown's proposal on the driving prohibition was two years under the Criminal Code provisions, Mr. Pike, and I will now impose a two-year driving prohibition.

You are not to operate a motor vehicle anywhere in Canada for two years, commencing now. Do you have a driver's licence with you here today? [ 33 ] THE ACCUSED: I believe so. [ 34 ] THE COURT: If you do, I am going to ask you to turn it over to the sheriff. Mr. Jett é , I'm sure, will have informed you of the significant penalties that apply if a motor vehicle is driven during the probation period. (REASONS FOR SENTENCE CONCLUDED)