R. v. Mainse Date:, 2012 BCPC 512

Citation: R. v. Mainse Date: 20121211 2012 BCPC 0512 File No: 186650-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHRISTOPHER RANDALL MAINSE ORAL REASONS FOR SENTENCE OF THE HONOURABLE MR. JUSTICE K.W. BALL (sitting as a Judge of the Provincial Court of B.C.) Counsel for the Crown: D. Wilson, for S. Sidhu Counsel for the Defendant: D. Gable Place of Hearing: Surrey , B.C. Date of Hearing: September 5, 2012

Date of Judgment: December 11, 2012 [ 1 ] THE COURT : Christopher Randall Mainse is before the court today having been found guilty after a trial of a count of operating a motor vehicle in a manner dangerous to the public having regard for all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated, contrary to s. 249(3) of the Criminal Code , and that took place on the 11th of January, 2010. [ 2 ] The circumstances of the offence are set out in reasons which were pronounced in this court on the 27th of September, 2012, and briefly put are that Mr.

Mainse was driving a high-powered vehicle on a wet roadway with tires which Mr. Mainse knew had very low tread depth. He was travelling on that road, which was wet from rain, between 97 and 144 kilometres per hour in a posted 60- kilometre zone. Unfortunately Mr. Mainse's vehicle crossed the centre line and struck a vehicle then being driven by a Mr. Custeau. Mr. Custeau suffered very serious injuries which have persisted to the present day, that is, for the three years since the incident. [ 3 ] A pair of victim impact statements were prepared which describe Mr.

Custeau's injuries and their affect on the lives of this couple and their young children, and I quote here at page 2 of the victim impact statement signed by Mrs. Custeau: The injuries caused by this accident have restricted the options of physical activities for our family to do together. Our children are limited in their choices to be physically active with their father and his opportunity to teach his children sports has been taken away. To be able to walk hand-in-hand for only short distances with my husband again was a milestone.

Not too many people have the dubious honour of sharing the accomplishment of learning how to walk again at the same time as their child. He's gained a considerable amount of weight since his immobility and is attempting to lose it, but is finding it difficult due to his physical challenges, knowing it would be easier on his body and ankles. We've endured many challenges since the incident, months of coordinating dropping off the kids so that I could take him to the doctor and physio appointments. He had to sit across the backseat of our car with his legs elevated.

I then had to drop him off at our house to put the car seats back in to pick up the girls and return home. We also had a ten-day stint of going to New Westminster every 12 hours for IV antibiotics. The layout of our house restricted him to the kitchen area and sleeping in the eating area on an electric bed. He also received sponge baths in the kitchen. This confinement lasted for months until he was able to get upstairs with walking casts and crutches.

We were in the middle of renovating our house prior to this life-altering accident, and sitting in a wheelchair, staring at all the incomplete jobs around the house with time on his hands but no ability to do them, proved to be a source of immense frustration. He could not even escape into his shop or the backyard for reprieve as we have a gravel driveway and he could not manoeuvre past the patio. [ 4 ] Mrs. Custeau goes on to express her concerns about their future life in their house.

At page 3 she sets forth the following: He is in considerable pain on a daily basis and prefers to take narcotic medications only as necessary due to not wanting to be "stoned" around our children. By nature, he does not like to take many medications. Rick requires the assistance of sleeping pills to get a restful sleep. However, the disadvantage is he feels groggy and unable to get motivated for several hours in the morning. Without this medication he is unable to fall asleep. [ 5 ] In Mr.

Custeau's shorter Impact Statement, the following appears: The physical damages caused to me from the incident are a broken right leg, my right heel was broken off and had to be put back into place with a metal plate that had ten screws. Two bones in the top of my left foot were smashed requiring eight screws in my foot from the outside with a frame holding it from collapsing. I also had bruised ribs on my right side and a huge black bruise on my left side up my leg and across my buttocks. The result of these injuries was a three-and-a-half-week hospital stay, then I went home in a wheelchair for two more months.

While in the wheelchair I was confined to our kitchen dining area because I could access food and a two-piece washroom with no use of stairs. After lowering my pain medications I started to have immense back, shoulder and neck pain causing me problems sleeping and sitting. Fortunately, after three months I finally got to start to walk again with a walker and walking casts. It was excruciatingly painful. At first I couldn't even hold myself up with the walker. It took me a month to walk a hundred feet with crutches.

I've also been on a crazy amount of drugs since the incident, such as blood thinners, needles twice a day, Oxycodone, Tylenol 3, antidepressants, muscle relaxants, sleeping pills, morphine at the hospital, and laxatives, most of them for over a year. And he too speculates about an uncertain future. [ 6 ] In the pre-sentence report the writer notes: Prior to the crash, Mr. Custeau was a refrigeration mechanic for Fraser Valley Refrigeration. He's no longer able to return as a mechanic because of the injuries he sustained.

He cannot stand for more than two hours at a time, resulting in his having to accept an office job within the company at a lower rate of pay. [ 7 ] Mr. Mainse is a man of 48 years. He has adult children, three of them who are referred to in the pre-sentence report. He and his wife have had a long-term relationship. He unfortunately has had also a very long-term court history beginning with driving over 80 milligrams of alcohol in 1991, followed by a series of theft offences, another impaired offence, as well as a series of failures to comply with court orders, and other property-related offences.

He has a very long and significant driving history which is not set out in the pre-

sentence report. He has had a number of suspensions over the period since 1991, up to and including the middle of 2006. Crown counselnoted that when the driving in this case actually occurred, he was without a licence as his had expired. [8] He has, since the incident, been taking a period of residential treatment at the Last Door Recovery Centre. I appreciate thereferences to recovery and treatment, although the offence information and the evidence at trial did not make reference to either use ofalcohol or use of a drug at the time of the collision. Mr.

Mainse has, however, through counsel, indicated that his criminal record islargely as a result of substance abuse of various kinds, and most recently alcohol, and those have obviously been problematic for him forsome time. He has at the same time been able, for periods of time, to have very good working relationships with his employer. A letterfrom his employer, British Hydraulics, was filed indicating his seniority and the fact that he oversees and trains some 20 employees anddoes other significant activities for and on behalf of that firm. Clearly Mr.

Mainse has taken steps which are rehabilitative. [9] Taking into account the cases which have been referred to by counsel, I find helpful the decision of the Court of Appeal ofNewfoundland and Labrador in the case of R. v. O'Keefe, [2011] N.L.C.A. 41 and the comments therein made at page 12. Crowncounsel submitted the appropriate sentence is between nine and 12 months of real jail because at this point in time conditional sentenceorders are not available for offences of this type.

In O'Keefe, the Court at paragraph 55 said: General deterrence and denunciation are very important in this case, as they always are where innocent people are seriously andneedlessly hurt by careless drivers. These sentencing principles are of primary concern to me in this case because we are told constantlyof the danger that speeding and reckless drivers present for other users of the highways. It is important to warn these drivers of the risksthat inhere in their behaviour so as to deter them from driving their vehicles when they are either unable or simply unwilling to do sosafely and prudently.

The sentences I impose on Mr. O’Keefe will inform him and others like him of this, as well as denounce thebehaviour. And the court goes on at paragraph 57: I am satisfied that there has been a developing trend towards the imposition of periods of incarceration for serious driving offencesresulting in bodily harm. The trend emanates from the decision of the Supreme Court of Canada in R. v.

Proulx, 2000 SCC 5 ,[2000] 1 S.C.R. 61. [10] In the case of O'Keefe, a six-month sentence was imposed. [11] The other case I found particularly instructive was the decision of Her Honour Judge Auxier of this court in the case of R. v.Sullivan, 2005 BCPC 206 , 2005 Carswell BC 1329 2005 B.C.P.C. 206.

In that case a driver was driving at high speed on theSea to Sky Highway, a driver without a prior record, and managed to pass, or tried to pass in an area where passing was not available,crossed the double solid line, narrowly avoided hitting a vehicle head-on and in the process hit another vehicle, pushing it off theroadway.

Again, Her Honour Judge Auxier emphasized the need for deterrence and denunciation being paramount, given the gravity ofthe offence and the responsibility of the offender and the need to stress in these cases that denunciation and deterrence are very importantwhere other people, innocent people, are hurt. [12] Now, in this case, as I said and I found in the Reasons I gave, Mr.

Mainse drove for a considerable period of time at a very highrate of speed in circumstances including the wet road and very, very low tread on his tires, that it was a dangerous and wrongful act, onethat should attract criminal sanction. [13] I am satisfied the appropriate sentence here, taking into account the circumstances of the offence, the circumstances of theoffender, the submissions of counsel that I have heard and the cases cited therein, is a sentence of nine months in custody. [14] That will be followed by a period of probation for one year. The terms of the probation order will be as follows.

To keep thepeace and be of good behaviour, appear before the court when required to do so by the court.

You will notify the court or probationofficer in advance of any change of name or address and promptly notify the court or probation officer of any change of employment oroccupation. [15] You will report within 48 hours of your release to the probation officer at 100 - 13545 - 64th Avenue in Surrey, BritishColumbia, and thereafter as and when directed. [16] You will provide your residential address to the probation officer and not change that residence without the prior writtenpermission of the probation officer. [17] You will attend, participate and successfully complete such counselling as directed by the probation officer which may includebut is not limited to substance abuse, alcohol abuse and related CORE programs. [18] You are prohibited from owning, possessing and carrying any weapons as defined by the Criminal Code of Canada. [19] You are to abstain absolutely from the consumption of alcohol and/or non- prescription drugs, or those drugs as defined underthe Controlled Drugs and Substances Act. [20] There will be a driving prohibition for seven years commencing today.

Do you now have a driver's licence, sir? [21] THE ACCUSED: I haven't driven since the accident.

[ 22 ] THE COURT: All right. You cannot apply for one during that period of time either, and given your record, if you were found driving now you would certainly go to jail. [ 23 ] There will be an order that during the serving of your sentence, within the next 30 days, you will provide a sample of your DNA. [ 24 ] At the request of Crown counsel I am not making an order for restitution; I assume that will be dealt with in other ways. [ 25 ] I will waive the surcharge in the circumstances. (REASONS FOR SENTENCE CONCLUDED)