R. v. Kostiuk Date:, 2011 BCPC 117

Citation: R. v. Kostiuk Date: 20110317 2011 BCPC 0117 File No: 194853-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. PETINA MARIA KOSTIUK ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: S. Cunningham, Q.C. Counsel for the Defendant: D. G. Butcher, Q.C.,M. Richards Place of Hearing: Vancouver , B.C. Dates of Hearing: March 15, 16, 17, 18, 2010 Date of Judgment: March 17, 2011 [ 1 ] THE COURT: Petina Maria Kostiuk has plead guilty to the offence under s. 144(1)(

a) of the Motor Vehicle Act that on October 31st of 2007 she drove a motor vehicle on a highway without due care and attention. The circumstances of this offence are tragic. Constable Kostiuk's failure to exercise due care and attention on this occasion resulted in the deaths of two young men, Albert Stephen Haczewski and Walter Koyo Hara. [ 2 ] Constable Kostiuk is a member of the RCMP. She was on duty and operating a marked RCMP police car equipped with emergency lights and a siren.

Earlier in her shift, she and another constable attended to a residence in Burnaby to deal with a woman in distress who was suicidal. They arranged for that woman to be taken to hospital. She was, however, later released, and at about 1:50 a.m. on October 31st of 2007, Constable Kostiuk was informed that this same woman was again in distress. Constable Kostiuk responded on an emergency basis, as she was required to do. She activated emergency equipment, both lights and siren. She travelled west on Kingsway.

She was travelling in the range of 75 to 85 kilometres per hour, as she approached the intersection with Royal Oak Avenue. [ 3 ] At that precise time, Albert Stephen Haczewski was driving home with his life-long friend Walter Koyo Hara. Although Constable Kostiuk had proceeded through a series of green lights as she travelled west on Kingsway, at the point that she entered the intersection at Royal Oak Avenue, the light was red for westbound traffic. That is, for traffic travelling in her direction. She entered the intersection without stopping.

[ 4 ] Although the legislation in effect at the time allowed Constable Kostiuk while operating a vehicle in emergency circumstances to exceed the speed limit and to enter an intersection against a red light, she was required to slow to a speed that allowed her to exercise due care. The RCMP policy in effect at the time required her to consider public safety and to apply a risk assessment.

The context in which this occurred is an intersection which has certain obstructions to view for traffic travelling westbound, in order to be able to see properly and evaluate traffic which is southbound on Royal Oak Avenue. [ 5 ] In entering this intersection against the red light in these circumstances and at a speed in the area of 76 kilometres per hour, Constable Kostiuk failed to exercise due care. She did not apply the risk assessment required of her by ensuring that she was in a position to stop and avoid traffic proceeding on Royal Oak Avenue through the intersection on the green light.

The consequences of that momentary lapse were tragic. The vehicle driven by Mr. Haczewski entered the intersection southbound on Royal Oak and on the green light. Constable Kostiuk's police vehicle struck his vehicle at about the driver's door. The force of the collision then caused two other vehicles to become involved in the collision. [ 6 ] Albert Stephen Haczewski and Walter Koyo Hara both died of their injuries suffered as a result of that collision. These events cause us to pause and reflect on the fleeting and tenuous hold we have on life.

That tenuous hold, of course, can be lost in circumstances like this in a flash. These two young men were the closest of friends, a friendship that stretched back to their childhood. They had spent an evening at the home of a third friend, and they were on their way home at the point that this collision occurred. [ 7 ] Mr. Haczewski was 27 years of age at the time. He was working as a software support technician. He was recently married, and he and his wife Paula had a lifetime of plans ahead. Mr. Hara was studying marine engineering, and he was due to be in class the following morning.

Filed and read in court today are the victim impact statements of Mr. Haczewski's mother and his wife Paula. The letter written by Yasuko Hara, Mr. Hara's mother, is also filed. The depth of the loss felt by family circumstances like this, is brought home to us in these statements. I am going to read briefly from each of those statements. [ 8 ] In the material filed at Tab 3 is the statement of Barbara Haczewski. She says in

part in that statement the following: On the news of his untimely death, I was utterly devastated, in shock for weeks following, unable to properly function. It was as if my life had collapsed. He was so close to me, caring and very reliable. We had recently purchased a house together, and I was looking forward to happy times with him and his future family. [ 9 ] She goes on and says: With the passage of time, my emotional distress has reduced somewhat, but it will never go away. I think of him now continually.

Although at a lower level than in the days and weeks following his death, my grief remains and will continue for the rest of my life. His loss created a hole in my life that will always be there. [ 10 ] In Paula Haczewski's victim impact statement, she said the following: I lost both my husband and my best friend; therefore, was left practically alone in a country that wasn't a home without close family, friends or real support. [ 11 ] Yasuko Hara speaks of her loss, but she also speaks of the profound nature of the friendship enjoyed between these two men.

In her letter, which she has filed with the Crown's material, she included a photograph of these two men standing together, and she also said the following: However, they did not choose death freely. They lived every day as best they could, as happily as possible, adored by many friends, and dreamed of their futures. These were all suddenly taken away from them. I do not want to believe that it was their destiny to die that day. [ 12 ] Constable Kostiuk is 41 years of age. She joined the RCMP in 2002, and she was assigned to Burnaby in 2006. She is originally from Saskatchewan.

She, of course, has no criminal record. Her service record is clean. There is simply nothing in her background which would suggest that this is a person other than a dedicated public servant who has faced and had to deal with the tragedy of her involvement in this terrible event. [ 13 ] She is the mother of two teenage daughters. She has not returned to work as a police officer since these events. I have considered the psychological report which was filed by Mr. Butcher on her behalf.

She has suffered acute stress which has continued since these events to the point that she is diagnosed now with post-traumatic stress disorder. Because these symptoms continue, it is uncertain whether she will be able to resume her career as an RCMP officer. If she cannot do so, her life ambition to be a police officer will end with these circumstances on this night. [ 14 ] She read before the court today an apology and an expression of sympathy to the families of these two young men. Through her guilty plea and her statement in court, she has accepted responsibility for her actions on this night.

It was evident to me in her emotional delivery of that apology that it is heartfelt and sincere. [ 15 ] I note that at the time these events occurred, Constable Kostiuk was responding to an emergency situation in the course of her duties, as she was bound to do. The circumstances have led the RCMP to change its policy in these kinds of responses, in order to make

every effort to reduce the risks created by vehicles responding in emergency circumstances, and this as well has resulted in the repositioning of emergency equipment on police vehicles in order that they be better heard.

We have heard in the course of the description of these events here in this court the potential that or the possibility that the siren was not as audible as would have been desirable in these circumstances. [ 16 ] The sentence I impose in this case cannot nor should it be seen as reflecting the enormity of the loss of these two young men to their families, to their friends and to a community, nor reflecting the lost potential that they carried to do good over long lives. This offence under the Motor Vehicle Act reflects inattention and failure to exercise care momentarily while driving.

I am not sentencing Constable Kostiuk for committing a criminal offence causing death. But the consequences of that momentary failure to exercise due care provides the lesson to all of us that every act we perform as drivers on highways in this province or when we fail to act can end a life and leave grieving friends and family and a community which will never have the benefit of the contribution of these two young men or people like them who die in similar circumstances. [ 17 ] Although a custodial sentence is provided for, it is certainly not appropriate in this case, and it has not been sought by the Crown.

I have reviewed the cases provided by counsel, and I have considered the submissions that they have made. The Crown proposes a fine in the range of 1,800 to $2,000; $2,000 is the maximum fine available. Mr. Butcher, on behalf of Constable Kostiuk, proposes a fine of $1,500. There is nothing to be achieved in splitting hairs in this small difference. [ 18 ] Constable Kostiuk, could you stand up, please. I have considered all of the circumstances in this case, as well as the absence of any other past history. In my view, the appropriate fine is within the range proposed by counsel.

I impose a fine of $1,500, and the victim fine surcharge applies. No driving prohibition is sought by the Crown. The basis on which the Crown is not proposing that in my view are entirely appropriate and none will be imposed. [ 19 ] Mr. Butcher, time to pay. [ 20 ] MR. BUTCHER: I'm going to ask for 12 months. [ 21 ] THE COURT: Ms. Cunningham. [ 22 ] MS. CUNNINGHAM: I have no submission on that. [ 23 ] THE COURT: The fine and the victim fine surcharge will be due and payable on or before the 30th of March, 2012. Anything further? [ 24 ] MS. CUNNINGHAM: Yes. There is one remaining count on the information.

I direct a stay of proceedings with respect to I think it was Count 2. [ 25 ] MR. BUTCHER: It's Count 2. [ 26 ] THE COURT: Thank you. [ 27 ] MR. BUTCHER: Thank you, Your Honour. [ 28 ] THE COURT: We will adjourn. (REASONS FOR SENTENCE CONCLUDED)