R. v. Ingram Date:, 2013 BCPC 180

Citation: R. v. Ingram Date: 20130506 2013 BCPC 0180 File No: 192640-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BRAD MICHAEL WILLIAM INGRAM REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M. B. HICKS Counsel for the Crown: C. Pike Counsel for the Defendant: I. Ferbey Place of Hearing: Surrey , B.C. Date of Hearing: April 22, 2013 Date of Judgment: May 6, 2013 [ 1 ] THE COURT : Brad Michael William Ingram has pled guilty to two counts on Information 192640-1: First, that on October

30th of 2010 at Surrey, British Columbia, he operated a motor vehicle in a manner dangerous to the public, and thereby caused the death of Anthony Ruscheinski, contrary to s. 249(4) of the Criminal Code . [ 2 ] He has pled guilty to Count 4 on the Information, that in the same circumstances he operated a motor vehicle in a manner dangerous to the public and thereby caused bodily harm to Talvinder Singh Ghangus, contrary to s. 249(3) of the Criminal Code . [ 3 ] I heard sentencing submissions on April 22nd of 2013. Mr.

Ingram is before the court today to have sentence imposed. [ 4 ] Dangerous driving causing death carries a maximum penalty of 14 years imprisonment. Where bodily harm results, the maximum penalty is ten years imprisonment.

These maximum sentences demonstrate the seriousness of these offences and help us to understand the role which courts must play, through the sentencing process, in denouncing such conduct where terrible loss occurs, and in deterring this offender and others from such conduct in the future which puts members of the community at risk of catastrophic injury or death. [ 5 ] In the tragic circumstances of this case, the Crown seeks a global sentence of eighteen months to two years less one day incarceration, followed by a probation order for two to three years.

The Crown seeks a driving prohibition under the Criminal Code extending three years beyond the completion of the custodial sentence. The Crown seeks an ancillary order for DNA sampling, these being secondary designated offences under s. 487.04 of the Criminal Code . [ 6 ] Mr. Ferbey, on behalf of this offender, argues that a sentence of incarceration is called for but proposes the range be 12 to 15 months, reflecting the particular circumstances of Mr. Ingram and the importance of restorative and rehabilitative considerations as sentencing objectives.

The Crown's proposal for probation, a driving prohibition and DNA sampling are not opposed. [ 7 ] The circumstances are the following: Mr. Ingram, the deceased Anthony Ruscheinski and Talvinder Singh Ghangus were all friends. Mr. Ingram and Mr. Ruscheinski, in particular, enjoyed a lifelong relationship as best friends dating from their childhood. [ 8 ] On the evening of October 29, 2010, all three went together to a fundraising event attended by about 600 people. It was the Halloween season and Mr. Ingram wore an intricate costume to the gathering which began at 8:00 p.m.

The bar closed, I am told, at 12:30 a.m. on October 30th, and the event itself ended at 1:00 a.m. The three, including Mr. Ingram, consumed alcohol at the event; however, at the end of the evening witnesses did not observe overt signs of intoxication in respect to Mr. Ingram. The three assisted with cleanup and in putting tables away after the event had finished. [ 9 ] At about 2:30 a.m., a witness drove the three to Mr. Ingram's home. That witness did not observe signs that Mr. Ingram was intoxicated. Mr. Ingram took off the costume at his home.

He and his friends wanted to continue the evening and were in communication with others about gathering at the home of another friend. The three consumed alcohol while at the Ingram home. [ 10 ] At 3:40 a.m., Mr. Ghangus texted to their friends that they were on their way and "will be there fast". They got into Mr. Ingram's 2010 Chevrolet Camaro. Mr. Ingram was the driver, Mr. Ruscheinski sat in the front passenger seat, and Mr. Ghangus was in the back seat. They travelled eastbound on 64th Avenue towards Cloverdale. [ 11 ] I have reviewed photographs which are marked, as a package, Exhibit 2.

The approach to 176th Street along 64th Avenue eastbound is generally straight. There are two lanes of travel in each direction divided by a low median. Approaching 176th Street, a left-turn lane forms. The intersection is controlled by traffic lights. The roadway in this area is flat. There are no view obstructions approaching the intersection. The roadway was in good condition. The posted speed limit was 60 kilometres per hour. [ 12 ] Both 64th Avenue and 176th Street are major arteries, and 176th Street is a truck route.

That heavy truck traffic has created grooves in the pavement through the intersection, but there is no evidence before me that those grooves contributed to these events. It was not raining; traffic was light. Street lights were in place along the approach and at the intersection. [ 13 ] Two vehicles, one in each eastbound lane, were stopped for the red light eastbound on 64th Avenue as Mr. Ingram, driving his Camaro, approached the intersection at a high rate of speed. The driver of the vehicle stopped in the left lane, accelerated through the intersection when the light turned green.

He noted the vehicle stopped to his right did not move away as quickly. As the driver in the left lane reached mid-block beyond the intersection, he noticed a flash of headlights in his rear-view mirror. He saw Mr. Ingram's car approaching behind his vehicle. The Ingram vehicle was fishtailing and swerving around the slower car in the right-hand lane. [ 14 ] Mr. Ingram's vehicle went out of control. It appears to have rotated sideways over the curb at or just before reaching the intersection.

The vehicle slid sideways towards a utility pole on the south side of 64th Avenue at about the intersection with 176th Street. The passenger side of the vehicle struck the utility pole essentially broadside, sheering the pole off and uprooting the stump of the pole. The vehicle continued eastward back onto the roadway and continued to rotate, coming to rest in the right-hand eastbound lane but turned to face in a westerly direction beyond the 176th Street intersection. [ 15 ] People nearby rushed to the scene. Mr. Ingram was out of the car. He said he was the driver. Police arrived and quickly determined that Mr.

Ruscheinski in the front passenger seat was dead. Because of the state of the vehicle following the crash, emergency workers were initially unaware that Mr. Ghangus was in the rear seat. However, once they realized that he was there, he was tended to and removed to hospital. [ 16 ] Mr. Ingram initially denied having consumed alcohol or a drug. A faint odour was detected. He failed an ASD. A blood sample was subsequently taken which tested for alcohol at the level of 183 milligrams of alcohol in 100 millilitres of blood.

However, there is uncertainty, based on a possible drinking pattern, as to his blood alcohol level at the time of driving. He did not display overt symptoms of impairment. [ 17 ] The tracking device installed in Mr. Ingram's car was examined. It recorded a speed of 129 kilometres per hour 2.5 seconds before the airbag deployed.

[ 18 ] Talvinder Singh Ghangus has filed a victim impact statement. He has suffered significant injuries which appear likely to have a lifelong effect. Following these events, he was in a coma for a number of days. He suffered a severe brain injury which continues to affect his balance, memory and emotional state. He suffered extensive fractures to the frontal sinus, nasal bones and the orbital roof and wall of the face. He suffered a broken hip and right femur. His right leg is now two centimetres shorter than his left. His right forearm was broken. He has had surgery, and a plate and pins have been inserted.

He is developing arthritis in his hip and may require replacement. He suffers headaches and memory loss; for example, he is unlikely to recall where he parked his car and must take photographs to help him return to it. He struggles to recall his route home. Memory issues are a problem in his work as an electrician. He must repeatedly re-check his work to ensure nothing is forgotten. Concentration is a problem. His physical condition and balance issues cause all sorts of concerns and risks at work where he must routinely use ladders.

He is concerned about the safety of his co- workers in these circumstances. [ 19 ] His emotional stability is shaken. He is easily upset and his friendships have suffered. He has taken counselling. He is on various medications which have negative effects on his behaviour. He suffers depression and lack of motivation. He is no longer able to enjoy life as he did before these events. He faces future surgery. He has been told he is unlikely to see much further recovery from his physical or brain injuries.

His career prospects as an electrician, which were boundless before this accident, appear much narrower today. [ 20 ] Anthony Ruscheinski was called A.J. by his family and his many friends. He was 26 years of age. His parents, Wolf and Lois, and other members of his family have chosen not to file victim impact statements. The notice placed in the Vancouver Sun and Province following A.J.'s death has been filed and I have read it. Family members were present on the day submissions were heard here in court. Mr. Ruscheinski was cherished within a large extended family.

He was an important part of a wide circle of friends. He excelled in sports, and particularly as a baseball player. Friends who worked for the utility company have affixed a baseball bat to the utility pole at the site of this crash as a tribute to A.J. Ruscheinski. It can be seen in photographs included with Exhibit 4. The loss at such a young age of a well-loved and cherished son, brother, grandson, uncle and friend in such tragic circumstances can only be described as profound. No sentence which I impose on Mr. Ingram today can in any way compensate for the injuries suffered by Mr.

Ghangus and his family and friends, nor can it replace the loss or fill the void felt by the family and friends of Mr. Ruscheinski. Indeed, that is not a realistic expectation of sentencing in a criminal case such as this. [ 21 ] In determining a fit sentence to be imposed on Mr. Ingram, I must consider the purpose and principles of sentencing which are set out in s. 718 to 718.2 of the Criminal Code .

The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions which address the following objectives: to denounce unlawful conduct, to deter Mr.

Ingram and others from committing such offences, to separate him if necessary, to assist his rehabilitation, to provide reparation for harm done to victims and to the community, to promote a sense of responsibility in the offender and acknowledgment of harm done to victims and to the community. [ 22 ] The sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender. It must account for aggravating and mitigating circumstances. The sentence should be similar to sentences imposed in similar cases.

Courts must be careful, in imposing custodial sentences, to do so only to the extent required to address sentencing principles. The determination of a fit sentence requires a careful consideration and balancing of all of these considerations done in the context of the specific facts of the case and the particular circumstances of this offender. It is not an arbitrary process whereby a simple formula can be applied. It is among the most challenging responsibilities judges undertake.

It requires restraint to ensure the sentence balances properly in the circumstances the moral blameworthiness of this offender, while recognizing the importance of rehabilitation and restorative objectives. This is particularly important where the offender is relatively young and does not have a past criminal history. [ 23 ] With these considerations in mind, I am now going to address Mr. Ingram's circumstances. Mr. Ingram is 28 years of age; he was 26 at the time. He has no past criminal history. He does have a driving record, however, under the Provincial Motor Vehicle legislation.

That record is troubling when considered in the context of the events of October 30th, 2010. It includes six convictions for speeding, a conviction for disobeying a traffic-control device, and a conviction under s. 144(1)(

b) for driving without due consideration for others. [ 24 ] Prior to the events of October 30, 2010, Mr. Ingram received 24-hour driving prohibitions on two occasions where alcohol consumption was a concern. This was his motor vehicle driving record up to October 30th, 2010. I understand from the material filed that Mr. Ingram has not driven since that night. He was bound by an administrative driving prohibition for three months.

He has been bound since February 13th of 2012, based on my review of the court file, by a bail condition that he not drive. [ 25 ] He completed high school and did very well academically. He was active in sports. He has worked in the past in various trades and in a warehouse. [ 26 ] As a result of this crash, Mr. Ingram suffered fractured ribs. I have reviewed the letter from his family doctor who reports that he was on medication and has required medication since the accident to assist with sleep.

He has undertaken alcohol counselling. [ 27 ] He has suffered great anxiety and regret over his conduct, the lasting effects suffered by Mr. Ghangus, the terrible loss he has caused and the grief suffered by the Ruscheinski family. Mr. Ingram had a close relationship with the Ruscheinski family over many years extending back to his childhood. He has suffered himself over the loss of his close friend. [ 28 ] Initially, Mr. Ingram withdrew from social contacts following this event. However, as time passed I am told he developed a determination to make something of himself. Mr.

Ingram entered the Stagecraft Program at Douglas College. He excelled in the program and achieved high marks. The letters of teachers and fellow students filed on the hearing speak to his commitment and motivation, and to the high quality of his work. He has solid future prospects once he is able to fully engage in this field. [ 29 ] I have read all of the letters which have been filed from family and friends; his parents, sister and members of his extended family have provided letters which help to give me perspective on Mr. Ingram.

They assist me in concluding that he has, from an early stage, accepted responsibility for his actions and is highly remorseful. That is consistent with his own statement read in court on the last

day and filed. From these sources I can readily conclude that Mr. Ingram is profoundly ashamed of his conduct and of the enormous lossfor which he is responsible. [30] Our sentencing regime is a principled and nuanced application of the sentencing principles and objectives that I referred to amoment ago. Its challenge for sentencing judges lies in an assessment of the offender's moral blameworthiness, and in that context howbest to balance the relevant sentencing objectives.

I am going to quote briefly from a decision in a case which is well known in thecourts in this country which addresses sentencing principles. It is called R. v. M. It is a decision of the Supreme Court of Canada in1996, and I am taking the following from the decision of the Chief Justice of Canada at that time in paragraphs 79 through 82. I amgoing to read portions of those paragraphs as follows: 79.

The mental state of the offender gives rise to the moral blameworthiness which justifies the state in imposing the stigma andpunishment associated with criminal sentence…I submit that it is this same element of moral blameworthiness which animates thedetermination of the appropriate quantum of punishment for a convicted offender as a just sanction… 81. …The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particularoffender's conduct.

In short, a sentence with a denunciatory element represents a symbolic collective statement that the offender'sconduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law… Ourcriminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values arecommunicated.

In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also beimposed in a manner which positively instils the basic set of communal values shared by all Canadians as expressed by the CriminalCode. 82. …The relative weight and importance of these multiple factors will frequently vary depending on the nature of the crime and thecircumstances of the offender.

In the final analysis, the overarching duty of a sentencing judge is to draw upon all of the legitimateprinciples of sentencing to determine a just and appropriate sentence which reflects the gravity of the offence and the moralblameworthiness of the offender. (R. v. M (C.A.), (SCC), [1996] 1 SCR 500) [31] I have reviewed the cases that have been provided by counsel. Several cases assist me in concluding that the appropriate rangefor consideration is as has been proposed by counsel. [32] R. v. Smith (2013 BCCA 173) is a very recent decision of the Court of Appeal in this province.

The offender pled guilty to theoffence of impaired driving causing death. She was intoxicated. The offence was not precisely the same as the offences which arebefore me, but the concerns are the same. The offender in that case was acting in an erratic manner. She got into her vehicle and drovein a highly dangerous manner over 3.6 kilometres before crossing the centre line and killing a motorcyclist travelling the opposite way. She had no prior record. Immediately following this she entered a drug and alcohol recovery program. She had a very difficultbackground but had made remarkable progress in her recovery.

She was remorseful. The Court of Appeal considered the high level ofmoral blameworthiness inherent in such dangerous conduct and the enormous consequences where death ensues. The court noted theimportance of deterrence as a sentencing principle in such cases and the need to denounce that conduct in strong terms. Although thecourt recognized the positive value of her rehabilitation, the high level of moral blameworthiness required a sentence of two years lessone day with probation to follow.

That case involved an extended period of driving by a highly intoxicated individual with alongstanding addiction which had not been addressed before a death had ensued. [33] Counsel have brought to my attention the recent decision in R. v. Danyliuk ([2012] BCPC 481) involving driving circumstancesapproaching criminal negligence in which a youthful offender pled guilty to dangerous driving causing death and bodily harm incircumstances in which he fled and remained at large for some time, but where significant reform was in hand at the time of sentencing.

In that case I imposed two years less one day incarceration and lengthy probation. [34] On April 10th of this year my colleague, Judge Jardine in this court, sentenced Gurjit Singh Dhillon following conviction on acharge of dangerous driving causing death. The offender drove a Corvette through an intersection, accelerating quickly while changinglanes. He lost control, struck another vehicle, and then a bus stop where the victim sat. The intersection was busy. There were variouscommercial premises, schools and parks in the area, and it was rush hour.

The offender was 28 years of age, married and expecting, withhis wife, their first child. Considerable information respecting Mr. Dhillon was provided through letters filed on his behalf, and apsychological report was provided. Judge Jardine noted the consumption of alcohol or a drug as a particularly aggravating feature. Neither was in Mr. Dhillon's system at the time of the accident. Judge Jardine imposed a one-year jail sentence and two years probation. (R. v. Dhillon, April 10, 2013, Surrey Registry no. 186387-1, Jardine, P.C.J.) [35] I turn now to consideration of a fit sentence in this case. Mr.

Ingram consumed alcohol before entering his car in the earlymorning of October 30th, 2010. In doing so, he exercised the worst possible judgment. He then drove a distance of about ten blocks,and certainly at the point he approached the light at 176th Street, he did so at high speed. He was travelling in excess of twice the 60-kilometre-per-hour speed limit.

We all know traffic flow often exceeds the posted speed, but every right-thinking person knows that at129 kilometres per hour on a city street, the ability of a driver to control his vehicle, to make safe lane changes and to avoid a potentiallycatastrophic accident is on a knife edge. Prior Motor Vehicle Act penalties had clearly not deterred Mr. Ingram from fast and aggressivedriving, nor had two 24-hour prohibitions deterred him from driving after consuming alcohol. [36] Mr.

Ingram, in these circumstances, presented an enormous threat to every other driver or pedestrian on the road, and to himself,and to his passengers. The family and friends of Mr. Ruscheinski and Mr. Ghangus, and Mr. Ghangus himself, are paying and willcontinue to pay, perhaps for the rest of their lives, an enormous price. They must endure loss which really defies words. [37] Mr. Ingram's actions carry a high degree of moral blameworthiness.

Any sentence I impose must make a strong statementdenouncing his conduct and expressing the community's abhorrence over his actions and their consequences. [38] The submissions made and material filed satisfy me that Mr. Ingram is ashamed and highly remorseful of his actions and istaking positive steps to put his life on a positive and very productive track. He has pled guilty. He has no prior criminal history. He has

a productive future ahead which should not be set back unduly by a custodial sentence. He is still youthful and has the support of a wide circle of family and friends who love him. His specific deterrence is well in hand. I am aware that there is the likelihood that Mr. Ingram will face significant civil consequences. ( R. v. Sadler, [2009] BCJ 1801 (BCCA) ) [ 39 ] A custodial sentence is not required to address a need for separation. Mr. Ingram does not present a risk to the community. However, the sentence must make a strong statement of denunciation and, to the extent sentences can do so, work to deter others.

That is a very important sentencing objective in cases of highly-dangerous conduct where the risk of terrible consequences is so great. These objectives of denunciation and deterrence are of such concern that Parliament in recent years has removed the option of a conditional sentence order for consideration in these cases. [ 40 ] I have considered these factors in light of the principles and objectives of sentencing I mentioned a moment ago, in light of Mr. Ingram's significant level of moral blameworthiness. I have considered the sentencing range proposed by counsel.

There must be a sentence of conventional jail. [ 41 ] In determining the sentence to be imposed, I have tempered the outcome to account for the mitigating factors referred to, and Mr. Ingram's positive future prospects. [ 42 ] Mr. Ingram, if you could now stand.

On Count 1, on the charge of dangerous driving causing the death of Anthony Ruscheinski, I impose a sentence of 18 months incarceration. [ 43 ] On Count 4, on the charge of dangerous driving causing bodily harm to Talvinder Singh Ghangus, I impose a sentence of ten months to be served concurrent. [ 44 ] There will be probation to follow for a period of two years. The conditions will be that you keep the peace and be of good behaviour. You will report forthwith following your release to a probation officer, and thereafter as directed by the probation officer.

You will reside where directed by the probation officer. You will not change that address without the prior written approval of the probation officer. [ 45 ] 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. [ 46 ] Under s. 259 of the Criminal Code as proposed by counsel, I impose a driving prohibition which is intended to extend three years beyond the custodial period. It will be for a period of four years and six months. [ 47 ] There will be a DNA order in respect of these offences.

I order you supply a sample of your DNA to the national DNA databank during the course of your incarceration. [ 48 ] Surcharges are waived. [ 49 ] You are now in the custody of the sheriff. [ 50 ] MR. PIKE: Thank you, Your Honour. [ 51 ] THE COURT: Thank you, gentlemen. [ 52 ] MR. PIKE: A stay of proceedings from the Crown on Counts 2, 3, 5 and 6. (REASONS FOR SENTENCE CONCLUDED)