R. v. Bosco Date:, 2015 BCPC 190

Citation: R. v. Bosco Date: 20150521 2015 BCPC 0190 File No: 193371-1, 193371-2-A Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. JEAN JACQUES BOSCO ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R.N. HAMILTON Counsel for the Crown: A. Jantunen Counsel for the Defendant: D. Karp Place of Hearing: Surrey , B.C. Dates of Hearing: November 13, 14, 21, 2014; March 27, 2015

Date of Judgment: May 21, 2015 INTRODUCTION [ 1 ] THE COURT : Jean Jacques Bosco is before me today for sentencing with respect to two separate convictions. The first conviction is with respect to a charge pursuant to s. 249 of the Criminal Code that on January the 14th, 2012 he drove dangerously causing bodily harm in a motor-vehicle accident caused by his dangerous driving. The second conviction is for failing to attend court on August 20th, 2013 for his trial with respect to the charge for dangerous driving causing bodily harm. Following a trial I convicted Mr.

Bosco on November 21st, 2014 of the charge of dangerous driving causing bodily harm. On March 27th, 2015 when the dangerous driving matter came before me for sentencing submissions, Mr. Bosco entered a guilty plea to the charge of failing to appear in court on August 20th, 2013. [ 2 ] The Crown seeks a sentence of six months in jail on the dangerous driving charge but no probation, because given Mr. Bosco's personal circumstances rehabilitation is not a significant sentencing principle to be considered in this case.

On the conviction for failing to appear at his trial the Crown seeks a sentence of time served at an enhanced rate for a total of nine days in jail. The Crown is also seeking a lengthy driving prohibition. [ 3 ] Mr. Bosco seeks a conditional discharge with a lengthy period of probation on the dangerous driving conviction. Mr. Bosco's position is that given his personal circumstances jail is wholly inappropriate. In reviewing my notes from the sentencing submissions and having listened to the DARS recording of Mr.

Bosco's sentencing submissions, his counsel did not make any submissions with respect to a fit sentence for the conviction for failing to appear at the trial. Regardless, I am tasked with determining a fit sentence to be imposed with respect to both convictions. I will state at the outset that Mr. Bosco comes before the court today with no criminal record but a relevant and concerning driving record. Mr. Bosco is well-educated, an accomplished professional soccer player and he runs a successful soccer academy teaching children soccer throughout the Lower Mainland.

CIRCUMSTANCES OF THE OFFENCES [ 4 ] I will review the circumstances of the offences in reverse order dealing first with the conviction for failing to appear. Mr. Bosco's trial on the dangerous driving causing bodily harm charge was scheduled to proceed on August 20th, 2013. [ 5 ] MR. JANTUNEN: Your Honour, I'm afraid I have to clarify. It was a trial confirmation hearing on August 20th, 2013, to confirm whether -- to confirm trial dates September 26th and 27th, 2013. [ 6 ] THE COURT: Okay, then I got that confused. The conviction was a failure to appear on the 20th, correct? [ 7 ] MR.

JANTUNEN: That's correct. [ 8 ] THE COURT: He was to attend court on August the 20th to attend a trial confirmation hearing. He had appeared I believe a week earlier, but in any event he did not appear on that date and so a warrant was issued for his arrest. He was taken into custody on August the 28th and released the same day. He was to appear back in court in January 2014 but again failed to appear. He was arrested and held in custody from January the 23rd to the 27th, 2014 when he was again released with new trial dates. Mr.

Bosco has attended all future court dates without incident. [ 9 ] The Crown's position on sentence with respect to the failure of Mr. Bosco to appear in court on August the 20th is that he should be sentenced to one day in jail with credit for nine days spent in custody prior to his sentence. Mr. Bosco was in custody on August the 28th and from January 23rd to 27th, 2014 for a total of six days in jail. Enhanced credit for those days in custody at one-and- a-half days for each day in jail works out to nine days of pre-sentence detention. As I have indicated, Mr.

Bosco made no submissions on a fit sentence with respect to the failure to appear conviction. However, his counsel stated his view that Mr. Bosco's failure to appear was at the low end of circumstances for that offence. I will return to the sentence I am imposing with respect to that conviction later in these reasons. [ 10 ] Turning now to the conviction for dangerous driving causing bodily harm. On November the 21st, 2014 I convicted Mr. Bosco of dangerous driving causing bodily harm following a two-day trial in which Mr. Bosco testified in his own defence.

I will not review my reasons for conviction in detail now. Reference can be made to my oral reasons for judgment delivered on November the 21st, 2014. On January 14th, 2012 Mr. Bosco had travelled from his home in Abbotsford into Vancouver to attend his soccer academy on Vancouver's west side. During his commute into Vancouver that morning he noted that the road conditions were dangerous. Snow was gathering along the side of the highway. Following his day spent at the soccer academy, Mr. Bosco stopped for something to eat and then decided to drive back to Abbotsford along 16th Avenue through Surrey and Langley.

Sixteenth Avenue is a well-travelled, rural road running east to west through the Fraser Valley. Somewhere between 6:30 and 6:45 p.m. on January 14th, 2012, Mr. Bosco was travelling eastbound on 16th Avenue between 224th Street and 240th Street. It was dark out and 16th Avenue was icy and slippery. Sixteenth Avenue in this area of Langley is a two-lane road with one eastbound and one westbound lane of travel. Much of this stretch of 16th Avenue is separated by a double yellow centre line prohibiting vehicles from passing. Mr. Bosco was tailgating a vehicle driven by Mr. Kindret, and after Mr.

Kindret pumped his brakes twice to get Mr. Bosco to back off, Mr. Kindret decided to slam on his brakes. Mr. Bosco was now faced with a split-second decision and he chose to swerve into the westbound lane of 16th Avenue in order to avoid a collision with Mr. Kindret's vehicle. [ 11 ] As I indicated in my reasons for judgment convicting Mr. Bosco, the evidence as to what then transpired is in conflict. However, on either version of the evidence, that being Mr. Kindret's or Mr. Bosco's account, I was left in no doubt that Mr. Bosco's driving was criminally dangerous. Once Mr.

Bosco reacted by swerving into the westbound lane of 16th Avenue he had a choice to make. He could merge safely back into the eastbound lane of 16th Avenue, or not and continue to travel in the oncoming lane of traffic. He chose the latter, and while remaining in the westbound oncoming lane of traffic, he passed a total of three or four eastbound vehicles. Mr. Bosco attempted to pass the last of the eastbound vehicles as 16th Avenue crested a blind hill.

[ 12 ] Mr. Mayes, the driver of this last eastbound vehicle, noticed the glow of the headlights of an oncoming westbound vehicle and knew there was likely to be a head-on collision between the westbound vehicle and Mr. Bosco's vehicle. Sure enough, as the vehicles crested this blind hill on 16th Avenue, Mr. Bosco crashed his vehicle head-on into Ms. Gudbranson's westbound vehicle. Ms. Gudbranson suffered significant injuries in this accident and there is a civil suit ongoing to determine Ms. Gudbranson's damages arising out of the collision. [ 13 ] In my reasons for judgment convicting Mr.

Bosco for dangerous driving causing bodily harm I commented upon Mr. Bosco's evidence at trial that he remained travelling eastbound in the oncoming westbound lane of 16th Avenue for slightly more than 40 seconds as he passed the three or four eastbound vehicles. I rejected Mr. Bosco's evidence that over the course of that significant distance he travelled in the oncoming lane there was no safe opportunity for him to merge back into the eastbound lane of 16th Avenue. [ 14 ] I accepted Mr. Mayes' evidence that he noticed the glow of Ms. Gudbranson's oncoming headlights and he saw Mr.

Bosco travelling in the westbound lane of 16th Avenue and he knew there was likely to be a collision so he manoeuvred his vehicle towards the shoulder of 16th Avenue, but the accident was inevitable as Mr. Bosco crested the blind hill. I also accepted Mr. Mayes' evidence that there were no vehicles travelling eastbound behind him that prevented Mr. Bosco from safely merging back into the eastbound lane of 16th Avenue as they crested the blind hill.

POSITION OF THE PARTIES [ 15 ] As I indicated at the outset of these reasons, the Crown seeks a jail sentence of six months coupled with a three to four-year driving prohibition for the dangerous driving conviction. In addition, the Crown seeks a sentence of one day in jail with enhanced credit of nine days in jail time served on the conviction for failing to appear in court on August 20th, 2013. Mr. Bosco seeks a conditional discharge for the dangerous driving causing bodily harm conviction and I must determine a fit sentence on the failure to appear conviction.

AGGRAVATING AND MITIGATING FACTORS Mitigating Factors [ 16 ] Mr. Bosco comes before the court with significant mitigating factors. He has no criminal record. He has never been convicted of a criminal offence prior to this conviction on these offences. He has been a law-abiding and contributing member of society and for that he deserves credit in the form of mitigation of his sentence. [ 17 ] The second mitigating factor is Mr. Bosco's background. Mr. Bosco is an accomplished individual. He is a former professional soccer player. He is well and highly educated. He has degrees in Philosophy and Criminology.

He has applied for and I believe has been accepted into law school. He runs a successful soccer academy through which he coaches children to play soccer. He has written a book and he tutors children in French. He has a significant record of accomplishments and an impressive resumé of contributions to the lives of children. [ 18 ] The third mitigating factor is Mr. Bosco's performance while on bail. Mr. Bosco was subject to a weekly reporting requirement while on bail which likely was due to his failure to appear in court as required in August 2013 and January 2014. Mr.

Bosco has complied fully with his conditions of bail, including the weekly reporting. [ 19 ] The fourth mitigating factor is the Pre-Sentence Report. Counsel for Mr. Bosco stated during his sentencing submissions that the Pre-Sentence Report prepared in advance of this sentencing hearing was among the more positive Pre-Sentence Reports he has seen. I agree. The Pre-Sentence Report reflects very positively on Mr. Bosco, but that is no real surprise. Mr. Bosco is an accomplished, law- abiding and contributing member of society.

Subject to what I will say about his driving record, there is nothing negative or incriminating to speak of in Mr. Bosco's background. Aggravating Factors [ 20 ] The first aggravating factor is Mr. Bosco's driving pattern leading to this collision. Mr. Bosco's poor judgment to drive dangerously in the manner I have found that he drove cannot be understated. While I accept that Mr. Bosco was forced into the westbound lane of 16th Avenue by Mr. Kindret's decision to slam on his brakes, Mr. Kindret's decision to slam on his brakes was a poorly thought-out response to Mr.

Bosco's choice to repeatedly and dangerously tailgate Mr. Kindret. But it is Mr. Bosco's decision, once he swerved into the westbound oncoming lane of 16th Avenue, to remain across the double yellow centre line and travel for 40 seconds approaching and cresting a blind hill, choosing not to merge back into the safety of the eastbound lane in driving conditions that were obviously dangerous - it was dark, poorly-lit, on a well-travelled road that was icy in snowy conditions, and his failure to pay attention as he crested the blind hill to the oncoming traffic that was readily obvious to Mr.

Mayes that lead me to conclude that this was a prolonged and perilously dangerous choice of driving. There was ample opportunity for Mr. Bosco to slow down and safely retreat back into the eastbound lane of 16th Avenue, but for reasons that Mr. Bosco has not articulated he elected not to do so. Mr. Bosco's driving pattern on January 14th, 2012 is a significant aggravating factor. [ 21 ] The second aggravating factor is the consequences of Mr. Bosco's criminal act. I am satisfied that Ms.

Gudbranson sustained serious injuries in this head-on collision; however, the full extent of those injuries remains to be determined in the pending civil action. The Crown tendered a medical report with respect to Ms. Gudbranson's injuries as an exhibit at the sentencing hearing. I agree with Mr. Bosco's counsel that without the benefit of hearing from the author of that report it is difficult to place much weight on that hearsay evidence. Nonetheless, having seen and heard from Ms. Gudbranson I am satisfied that she has sustained life-altering injuries in this collision caused by Mr.

Bosco's dangerous driving. [ 22 ] The third aggravating factor is Mr. Bosco's driving record. Mr. Bosco has an unenviable driving record. Mr. Bosco's counsel referred to his client's driving record as dated, but I do not agree with that characterization. It is true that Mr. Bosco has never before been prohibited from driving or had his licence suspended, but his driving record is clearly an aggravating factor. Mr. Bosco's counsel referred to Mr. Bosco's driving record as not a significant factor in the sentencing hearing, and again I disagree.

[23] Over the nine years covered by his driving record, that being August 2002 to November 2011, Mr. Bosco has a total of 11separate and related convictions for driving offences. His record consists of six speeding violations, including two convictions forexcessive speeding, and five dangerous or unsafe driving convictions including a conviction for driving without due care and attentionfrom July 2010. While Mr.

Bosco's driving record is not the worst that we see in these courts, what appears from his driving record isthat any driving points registered against his licence and any fines associated with these driving convictions did not have a deterrenteffect over the nine years covered by the driving record. I note that the dangerous driving offence for which Mr. Bosco is before me forsentencing occurred on January 14, 2012, or just under one month from the date of his last conviction for speeding on December 17th,2011.

THE CROWN'S SENTENCING AUTHORITIES [24] Crown counsel referred to a number of sentencing authorities during submissions. The first was R. v. Warren, a decision datedDecember 28, 2012 of Associate Chief Judge Gill from our Provincial Court. This is a very thorough and well-reasoned judgment. Theessential facts of the case are the following: The accused Warren was a young woman. She had no criminal record and a related but nothorrible driving record. She was impaired by alcohol and driving at very high rate of speed on 152nd Street in Surrey. Ms.

Warrendrove through an intersection on a red light, collided with the victim's vehicle and killed the victim. Ms. Warren then fled the scene ofthe accident but was apprehended a short time later. At the date of her sentencing, Ms. Warren had quit drinking alcohol. She was well-regarded in the community, as was the victim. Ms. Warren had pled guilty to the dangerous driving causing death charge and also hadpled guilty to driving with an alcohol concentration above 80 milligrams. [25] Judge Gill noted that the primary sentencing principles in cases of this sort are denunciation, retribution and deterrence.

JudgeGill sentenced Ms. Warren to 34 months in jail for the dangerous driving causing death conviction and the driving over 80 milligramsconviction, along with 30 months in jail for fleeing the scene of the accident. I note that Ms. Warren's pattern of driving was moreaggravated than Mr. Bosco's, in that she was under the influence of alcohol, speeding, drove through a red light and killed her victimbefore fleeing the accident scene. However, Judge Gill also said this about Ms.

Warren at paragraph 24: Based on all of the foregoing sources of information, I believe it is fair to characterize this offender as but for this offence having alongstanding commitment to helping the disadvantaged and eventually making a career of it. Her conduct in committing this offenceappears not to be in keeping with her character as demonstrated before and after its commission. Those comments aptly describe Mr. Bosco. [26] The next decision was R. v. Rawn, a judgment of the Ontario Court of Appeal from July 9th, 2012. This decision was an appealof a sentencing decision where the sentencing judge gave Ms.

Rawn a suspended sentence, imposed two years of probation and sentencedher to a two-year driving prohibition. On the appeal the Ontario Court of Appeal overturned the suspended sentence and imposed a nine-month jail sentence coupled with a five-year driving prohibition. [27] The facts of that case are the following: On May the 10th, 2008, the night of Ms. Rawn's offences, she engaged in somethingakin to street racing with another driver. The two racing vehicles collided and injured seven other people. Ms. Rawn was charged withseven counts of dangerous driving causing bodily harm. The other driver with whom Ms.

Rawn was racing received a suspendedsentence with probation. Ms. Rawn took her case through an eight-day jury trial and was convicted. The sentencing judge imposed thesuspended sentence with probation after considering that the other street racer received a suspended sentence. In addition, Ms. Rawn didnot have a criminal record and there is no indication she had a driving record. [28] In the course of its judgment, the Ontario Court of Appeal reviewed the applicable sentencing principles and concluded that inthese kinds of cases denunciation and deterrence are the primary sentencing objectives.

As well, the Ontario Court of Appeal stated thatperiods of probation are directed towards rehabilitation and should not be used as a form of punishment. In support of that principle theycited the Supreme Court of Canada decision in R. v. Proulx, 2000 SCC 5 , 2000 S.C.C. 5. [29] In Ms. Rawn's case, her driving behaviour was more aggravated than Mr. Bosco's but not significantly so. She was streetracing, lost control, collided with her fellow racer and the two racers injured seven people. Mr.

Bosco drove for 40 seconds in theoncoming lane of traffic in a poorly-lit, rural area of Langley in snowy conditions on an icy road across a double yellow line, and ignoredopportunities to merge back to safety. He then crested a blind hill, ignoring the glow of the oncoming headlights, taking no evasiveaction to avoid the collision. While I accept that Mr. Bosco and Ms. Rawn's driving behaviour is different and the consequences of thatdriving behaviour is different, the level of dangerousness in their driving behaviour, in my view, is comparable. [30] The next case was R. v. Badyal.

It is an April 19th, 2011 decision of the British Columbia Court of Appeal. The Crown relieson that decision for the simple but important proposition that periods of probation ought not be imposed to punish an offender. [31] The next decision is R. v. C.A.M. It is an unrelated decision from the Supreme Court of Canada from March 21st, 1996 andwhile the facts, the charges, and the legal principles before the Supreme Court of Canada have no bearing on Mr. Bosco's case, the courtin C.A.M. reviews extensively sentencing principles to be applied by sentencing judges when imposing a sentence.

Among other pointsmade by the Supreme Court of Canada in C.A.M. the court confirmed that retribution is a legitimate sentencing principle if appliedappropriately. [32] The next authority is R. v. J.A.W. It is a decision of the British Columbia Court of Appeal from May 18th, 2006 in which theCourt of Appeal set aside a two-year sentence imposed upon the accused and replaced it with a four-year sentence. In my view, thisdecision is not particularly helpful in my sentencing deliberations with respect to Mr. Bosco.

In J.A.W. the accused drove the wrong wayalong the Upper Levels Highway on the North Shore while he was impaired by alcohol. He had a prior conviction for impaired driving. He killed the driver that he struck. The Court of Appeal reached the conclusion that the sentencing judge overemphasized the

rehabilitation of the accused and underemphasized denunciation in the sentence imposed. [ 33 ] While on its face the driving behaviour in J.A.W. bears some similarities with Mr. Bosco - they both drove into a head-on collision while travelling dangerously in the oncoming lane of traffic - the accused's impairment at the time of the offence and his criminal record of impaired driving set the J.A.W. case apart from this case involving Mr. Bosco. [ 34 ] Of the remaining two decisions relied upon by the Crown, only one is of much assistance to me. The Crown relies upon R. v.

Gelowitz , a July 2nd, 2013 sentencing decision of Judge Hicks. I do not find this decision helpful. In R. v. Gelowitz the accused consumed significant amounts of alcohol and drove with two friends, crashed his vehicle, killing one friend and seriously injuring the other. In the accident, his vehicle became airborne, crashed into a utility pole and dislodged the power lines. I infer he was speeding. Mr. Gelowitz had no criminal record but a fairly bad driving record. His blood alcohol content was nearly twice the legal limit.

Judge Hicks imposed a two-and-a-half-year jail sentence followed by a five-year driving prohibition. On those facts and with the sentence Judge Hicks imposed I do not find that case of much assistance to me. [ 35 ] Lastly the Crown relies on R. v. McKinlay , an October 24, 2013 decision also of Judge Hicks, where he imposed a three-month jail sentence followed by a three-year driving prohibition in circumstances where the accused was at a party, drank some alcohol and decided to give two of his friends a ride home in his father's two-seat sports car. One of his passengers was unrestrained in the vehicle.

The accused's choice to drive his two friends violated a restriction on his driver's licence. Mr. McKinlay's driving recording included two prior speeding violations and a three-month driving prohibition. [ 36 ] While Mr. McKinlay was driving his friends home that night he was travelling at an excessive rate of speed. One of his friends asked Mr. McKinlay to slow down. While speeding, Mr. McKinlay lost control of his vehicle and crashed it, seriously injuring his two passengers. Mr. McKinlay was an up-and-coming professional hockey player. He had a good family and community support.

The Crown sought a six-month jail sentence and the defence sought a suspended sentence and probation. [ 37 ] In a carefully considered judgment, Judge Hicks noted that imposing a suspended sentence with probation would make a much reduced statement of denunciation and deterrence. In considering a fit sentence Judge Hicks referred to the Court of Appeal's decision in R. v. Smith and noted that the consequences of the criminal behaviour are a relevant consideration in determining a fit sentence. In Mr. McKinlay's case, the injuries suffered by his victims are more severe than the injuries sustained by Ms.

Gudbranson. Mr. McKinlay's victims were hospitalized, sustained broken bones, one a dislodged spine, the other a fractured spine, and one of the victims was in a coma for eight days. In the result, Judge Hicks imposed a three-month jail term followed by a three-year driving prohibition. [ 38 ] In arriving at that sentence Judge Hicks referred to the Ontario Court of Appeal's decision in R. v. Rawn to which I have already referred. Judge Hicks noted the following statement of principle from the decision in R. v.

Rawn : General deterrence and denunciation are the most important factors in the determination of a sentence in a case such as this one. Other, like-minded people need to know that irresponsible use of a motor vehicle on our highways will not be countenanced. A sentence can only denounce conduct and deter others to the extent that it is punitive. The essence of general deterrence, is, therefore, punishment. THE DEFENCE SENTENCING AUTHORITIES [ 39 ] I turn now to briefly summarize the authorities relied upon by Mr. Bosco's counsel. Firstly, R. v. Bilodeau .

It is a decision of Judge Auxier from the British Columbia Provincial Court dated February 14th, 2005. Mr. Bilodeau was convicted of two counts of dangerous driving causing bodily harm for driving on the wrong side of the Sea-to-Sky highway at night when he struck another vehicle, injuring its occupants. Judge Auxier was unable to determine if Mr. Bilodeau was speeding and the accident was the result of a momentary lapse of attention. Mr. Bilodeau had no criminal record and a minor driving record. He had two speeding tickets over five years.

He had a steady work history. [ 40 ] Judge Auxier considered imposing a conditional sentence order but felt that a house arrest condition would be unworkable given Mr. Bilodeau's employment. She also considered imposing a substantial number of community work service hours but also found that unworkable. In the end, she imposed a $3,000 fine, one year of probation and a two-year driving prohibition. In the course of her decision Judge Auxier reviews some case law on moral blameworthiness and concludes that Mr. Bilodeau's driving was at the low end of the dangerous driving continuum and also found Mr.

Bilodeau's moral blameworthiness to be low. [ 41 ] The next decision is R. v. Linekar . It is a sentencing decision of Judge Brown of the British Columbia Provincial Court from October 3rd, 2013. Mr. Linekar had pled guilty to a charge under s. 144 of the Motor Vehicle Act of driving without due care and attention. Mr. Linekar had initially been charged under the Criminal Code with dangerous driving causing bodily harm and dangerous driving causing death, but part way through the trial he entered guilty pleas to the Motor Vehicle Act offences.

This is another case of a moment of inattention leading to a motor-vehicle accident with tragic and deadly consequences. [ 42 ] At the outset, Judge Brown notes that he is imposing a sentence for a Motor Vehicle Act offence not a Criminal Code offence and that he is not sentencing Mr. Linekar for causing the two deaths and the bodily injuries sustained by his victims. Under those circumstances, I am of the view that this decision provides very little assistance to me in arriving at a fit sentence for Mr. Bosco.

Judge Brown reviews a number of sentencing authorities and articulates the relevant sentencing principles, including denunciation and deterrence. Ultimately he imposes a $2,000 fine on Mr. Linekar and an 18-month driving prohibition. [ 43 ] The next case is the decision of R. v. Giles . It is a lengthy decision of Mr. Justice Romilly of the British Columbia Supreme Court from May, 2012. Ms.

Giles consumed limited alcohol, was driving at an excessive rate of speed and reached down to retrieve some food she dropped causing a momentary lapse of attention and she collided with an oncoming vehicle, injuring herself and the three occupants of the other vehicle. She entered a guilty plea to dangerous driving causing bodily harm and Justice Romilly imposed a

suspended sentence, a six-month driving prohibition, three years of probation and 300 hours of community work service. [ 44 ] Much of Justice Romilly's decision is a review of the availability and appropriateness of a conditional sentence order, a sentencing option that is not available to me. Ms. Giles' personal circumstances were very sympathetic. She was young, only 19 years old. There is no reference in the judgment to a criminal record, but she had two prior short driving prohibitions, a 24-hour prohibition and a 12-hour prohibition.

She had obtained further education to qualify as a nurse and she had been employed in the Alberta oilfields. She was going to lose her employment due to her conviction and driving prohibition. Conspicuously absent from this decision is any discussion by Mr. Justice Romilly of the case law that clearly says sentencing judges should not impose probation as a form of punishment of the offender, but by imposing 300 hours of community work service as a term of the three years of probation, it appears to me that Mr. Justice Romilly used the term of probation to punish Ms.

Giles. [ 45 ] The last decision referred to by counsel for Mr. Bosco is R. v. Wiebe , a March, 2009 decision of Judge Takahashi of our Provincial Court. Mr. Wiebe pled guilty to a charge of dangerous driving causing bodily harm in circumstances where he was irritated by two motorcyclists who had sprayed some rocks at Mr. Wiebe's van while passing the van. When these motorcyclists turned around and approached Mr. Wiebe's van from behind and tried to pass the van, Mr. Wiebe pulled into their lane, cutting them off, and one of the motorcyclists was thrown from his motorcycle and sustained serious bodily injuries.

Again, the court in Wiebe referred to Mr. Wiebe's conduct as a momentary lapse of judgment. Mr. Wiebe had no criminal record and an unrelated driving record. He was unemployed and faced the prospect of a significant financial liability arising out of the civil action commenced by the injured motorcyclist. [ 46 ] Both the Crown and Mr. Wiebe sought a fine and Judge Takahashi imposed a $600 fine and an 18-month driving prohibition. Mr. Wiebe appealed the sentence and conviction and sought to withdraw his guilty plea.

The decision of the Court of Appeal focuses on the circumstances in which an accused should be permitted to withdraw a guilty plea. Neither the Crown nor Mr. Wiebe asked the Court of Appeal to review the fitness of the sentence imposed. DETERMINATION OF A FIT SENTENCE FOR MR. BOSCO [ 47 ] I have already made some reference to Mr. Bosco's personal circumstances. During counsel's sentencing submissions Mr. Bosco's counsel tendered a number of letters containing glowing character references for Mr. Bosco. Mr.

Bosco is referred to in these letters in the following terms: "He has built a community of soccer players during his nine years running soccer programs in Kerrisdale. He is well-respected. He has a strong passion for teaching soccer. He is an excellent ambassador for soccer. He demonstrates values of fair play and sportsmanship. He consistently displays a positive and supportive attitude towards his students. He encourages, motivates and instructs soccer players of all ages. He is courteous and professional. He contributes to the health and welfare of the community. He is a person of integrity and good character.

He is an important and irreplaceable member of the community." I could go on. [ 48 ] I am satisfied that Mr. Bosco is a passionate and highly-skilled soccer instructor who works hard with and succeeds at training others, mainly children, how to play soccer. He has a very strong base of community support for the programs he provides to the children on Vancouver's West Side. [ 49 ] The other recurrent theme in these letters is this: If Mr. Bosco receives a criminal record as a result of the sentence I impose, that record will almost certainly prevent Mr. Bosco from continuing his soccer academy with children.

In other words, a criminal record for Mr. Bosco will have an obvious negative impact on Mr. Bosco but will also negatively affect a large body of children who would no longer be able to learn soccer from Mr. Bosco. That may well be an unfortunate consequence of the sentence I am going to impose on Mr. Bosco today, but it is my view that a fit sentence for Mr. Bosco's crimes will inevitably leave Mr. Bosco with a criminal record. [ 50 ] Counsel for Mr. Bosco urged me to consider imposing a conditional discharge which upon the completion of his period of probation would leave Mr. Bosco with no criminal record.

But none of the cases I was referred to and that I have summarized earlier in this decision involve the imposition of a conditional discharge as a fit sentence on a conviction for dangerous driving causing bodily harm. [ 51 ] I am of the view that given denunciation, deterrence and retribution are the primary sentencing principles that I must keep in mind in arriving at a fit sentence for Mr. Bosco, it would be reversible error if I were to impose a conditional discharge in this case because that would mean I was imposing a period of probation as a form of punishment.

I am aware that a driving prohibition would also form a punitive element of the sentence, but I am of the view that a conditional discharge would impermissibly use a period of probation to punish Mr. Bosco. As well, while a conditional discharge is clearly in Mr. Bosco's interest, but for the reasons I have stated I am unable to conclude that a conditional discharge is in the public interest. In the result, any of the other sentences available to me to impose upon Mr. Bosco come with an attendant criminal record.

For the reasons I have just articulated, imposing a suspended sentence with probation would also impermissibly use a period of probation as a form of punishment. [ 52 ] Because a conditional sentence order is no longer available to me, I am really left with either a fine and driving prohibition, or a jail sentence and driving prohibition. I agree with the Crown and defence that probation is not necessary for Mr. Bosco.

He does not need to be rehabilitated. [ 53 ] Of the sentencing authorities that I have reviewed, a fine was imposed in cases where the accused was guilty of a momentary lapse of attention and was therefore at the low end of the moral blameworthiness continuum. I am of the view that Mr. Bosco's choice to drive dangerously in the manner I have described was not a momentary lapse of attention, rather, it was a decision to drive in an exceedingly dangerous manner in exceedingly dangerous driving conditions over a prolonged period of time. I consider Mr.

Bosco's driving behaviour to attract a higher degree of moral blameworthiness. [ 54 ] I am also mindful of the following, taken from Mr. Justice Romilly's decision in R. v. Giles at paragraph 25: Real people suffer or have to live without their loved ones because of driving offences. The sentences imposed must recognize that driving offences are true crimes which cause serious and sometimes lifetime harm and suffering to their victims and which should, therefore, be dealt with accordingly. In R. v.

Biancofiore . . . the Ontario Court of Appeal indicated that the "condemnation of these types of offences must be clear and, where the offence has devastating consequences, it must be loud. Courts have an obligation to

impose sentences that will serve to deter those who, although law-abiding citizens in other respects, might be inclined to view such offences merely as 'accidents' as opposed to true crimes." [ 55 ] In his comments to me at the conclusion of the sentencing hearing, I was left with the impression that Mr. Bosco views what happened on January 14th, 2012 as an accident caused by Mr. Kindret's slamming on his brakes and Mr. Bosco having no choice but to take immediate evasive steps to avoid a collision with Mr. Kindret's vehicle. In other words, the collision with Ms. Gudbranson's vehicle was not entirely Mr.

Bosco's fault. For the reasons I have tried to articulate in this decision, Mr. Bosco's head-on collision with Ms. Gudbranson's vehicle was an entirely avoidable collision. It was the result of Mr. Bosco's choice to drive his vehicle in a criminally dangerous manner. The collision was avoidable if Mr. Bosco had chosen to drive his vehicle in a prudent manner, taking into account the driving conditions and the stretch of road he was travelling on. [ 56 ] There is no evidence that Mr. Bosco was speeding, although there is uncontradicted evidence that Mr.

Bosco passed as many as four other eastbound vehicles on 16th Avenue as he drove in the westbound, oncoming lane. There is no evidence and no suggestion that alcohol played any role in the circumstances of this collision. [ 57 ] In guiding my deliberations to arrive at a fit sentence in this case I have found the Ontario Court of Appeal decision in R. v. Rawn and Judge Hicks' decision in R. v. McKinlay to be persuasive. To repeat, in R. v. Rawn the Ontario Court of Appeal overturned the sentencing judge's suspended sentence and probation and imposed a nine-month jail sentence and a five-year driving prohibition.

Ms. Rawn's driving behaviour was worse but not considerably worse than Mr. Bosco's. However, the consequences of her driving behaviour were far worse than Mr. Bosco's. In R. v. McKinlay Judge Hicks imposed a three-month jail sentence and a three-year driving prohibition, but in that case Mr. McKinlay had consumed alcohol, was driving at an excessive rate of speed, both not features of Mr. Bosco's driving, and the consequences of Mr. McKinlay's driving were much worse than Mr. Bosco's. [ 58 ] Mr.

Bosco, would you please stand. [ 59 ] For the reasons I have just articulated I am going to impose the following sentences upon you: For the dangerous driving causing bodily harm I sentence you to two months, or 60 days in jail, to be served intermittently so that you can continue with your work. I will place you on six months' probation to facilitate the 60-day intermittent jail sentence. [ 60 ] You will report by 6:00 p.m. Friday, May 22nd to the Surrey Pretrial Centre to be taken into custody and you will be released from custody at 6:00 p.m. on Sunday, May the 24th.

You will then report each Friday thereafter at 6:00 p.m. to the Surrey Pretrial Centre to be taken into custody and you will be released at 6:00 p.m. each Sunday until your 60-day intermittent jail sentence has been served. In addition, I am imposing a two-year driving prohibition as part of that sentence. [ 61 ] For the conviction of failing to appear, I will impose a one-day jail sentence. That will be today, you will be taken into custody today. I am not inclined to have your record reflect nine days in custody as part of that sentence.

I would, however, credit those nine days of pre-sentence detention towards the 60-day jail sentence, leaving you with 51 days left to serve if that is an option available to me. And I am going to ask counsel to help me with that because I am not sure if that is an option. [ 62 ] Lastly, as for the victim fine surcharge, Mr. Bosco, I will give you four months to pay that fine. [ 63 ] MR. JANTUNEN: It is an option available to you to credit Mr. Bosco with time served. [ 64 ] THE COURT: He spent that time in custody, he should get that credit.

So the 60-day jail sentence is being reduced to 51 days left to serve after crediting the nine days of pre-sentence detention. (REASONS FOR SENTENCE CONCLUDED)