R. v. Fenton Date:, 2017 BCPC 216

Citation: R. v. Fenton Date: 20170714 2017 BCPC 216 File No: 19489-1 Registry: Wst. Communites IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KENNETH JACOB FENTON REASONS FOR SENTENCE OF HONOURABLE JUDGE R. LAMPERSON Counsel for the Crown: T. Stokes and C. Fisher Counsel for the Defendant: D. Marshall and C. Massey Place of Hearing: Western Communities , B.C. Dates of Hearing: June 28 and July 7, 2017 Date of Judgment: July 14, 2017

Introduction [ 1 ] Before the Court for sentencing is Kenneth Jacob Fenton. Mr.

Fenton has pled guilty to two criminal charges. [ 2 ] The first is a charge that while his ability to operate a motor vehicle was impaired by alcohol or a drug he did operate a motor vehicle and thereby caused the death of Sarah Beckett contrary to section 255(3) of the Criminal Code . [ 3 ] The second is a charge that 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 Sarah Beckett contrary to section 249(4) of the Criminal Code . [ 4 ] The offences were committed in the early morning hours of April 5, 2016 in Langford, British Columbia. [ 5 ] The victim, Sarah Beckett, was an RCMP officer who was on duty and driving a police car at the time she was killed. [ 6 ] The police conducted a very thorough investigation.

Charges were not laid until September 14, 2016. [ 7 ] Crown counsel submit that the range of sentence in this case is three to five years jail and ask the Court to impose a sentence at the high end of that range. The Crown also asks the Court to impose a driving prohibition in the range of eight to 10 years to commence at the expiration of Mr.

Fenton’s term of imprisonment. [ 8 ] In addition, the Crown seeks a DNA order and a 10 year mandatory weapons prohibition. [ 9 ] Defence counsel submit that the appropriate sentence in this case is three years jail and say that the driving prohibition should be for five years commencing on the day of sentencing.

Defence counsel do not oppose the imposition of a DNA order or a mandatory weapons prohibition. [ 10 ] In determining the appropriate sentence in this case, I must consider the circumstances of the offences, the circumstances of the offender, the victim impact, the purposes and principles of sentencing as set out in the Criminal Code , the aggravating and mitigating factors and existing sentencing decisions. Circumstances of the Offences [ 11 ] The circumstances of the offences are not in dispute. Counsel provided the Court with an Agreed Statement of Facts.

In setting out the circumstances I will draw from that Agreed Statement of Facts. [ 12 ] Mr. Fenton had been in a relationship with Ashley Blair, who is the mother of his young child. They separated in January 2016 but continued to co-parent their son. [ 13 ] Ms. Blair made a statement to the police on April 5, 2016 in which she said that she believed Mr. Fenton was struggling with an alcohol addiction which was negatively impacting his life. She said that Mr. Fenton was upset about the suicide of a friend approximately two days earlier. She said further that this reminded Mr.

Fenton of the suicide of his best friend approximately three years before. [ 14 ] On April 4, 2016 Mr. Fenton worked a full day. At approximately 5:00 p.m., he went to the house of a friend named Keith Wadden. Mr. Wadden was also a friend of the man who had committed suicide two days before. The two of them talked and grieved about the loss of their friend. Mr. Fenton and Mr. Wadden ate dinner together and shared a 15 pack of beer. Mr. Fenton drank seven or eight beer. Mr. Fenton left Mr. Wadden’s residence at approximately 9:00 p.m. and drove home. [ 15 ] Sometime after arriving home, Mr.

Fenton received a call from another friend who invited him to come over. Sometime between 10 p.m. and midnight, Mr. Fenton drove to the residence shared by Kevin Campbell, Michael Dark and Mr. Dark’s girlfriend on Sunderland Road in Langford. [ 16 ] Mr. Dark and his girlfriend went to bed either before or just after Mr. Fenton arrived. Mr. Fenton and Mr. Campbell spent time together. Mr. Campbell also knew the deceased friend. He had been drinking all day as well as the day before and was “in his own headspace”. During the evening Mr. Fenton made a number of unusual and non-sensical comments to people. [ 17 ] Mr.

Fenton had intended to stay overnight at the residence; however, at some point he and Mr. Campbell had a disagreement and decided to leave. [ 18 ] Mr. Fenton left the Sunderland Road residence sometime before 3:25 a.m. on April 5, 2016 driving his 1996 Dodge pickup truck. [ 19 ] At approximately 2:50 a.m., Cst. Sarah Beckett, Cpl. Mike Holmes and other members of the West Shore RCMP were investigating a possible break and enter in progress on Jacklin Road in Langford. The police concluded the investigation and left the scene in separate vehicles. Cpl. Holmes left at 3:24 a.m. Cst.

Beckett left at 3:26 a.m. [ 20 ] At 3:26 a.m. Cpl. Holmes drove his police car north along Jacklin Road. He turned right onto Brock Avenue and headed east. Cpl. Holmes saw the truck driven by Mr. Fenton in the roundabout at the junction of Deville Road and Brock Avenue. [ 21 ] The truck proceeded east onto Brock Avenue and headed towards Peatt Road. At that time, Cpl. Holmes noticed that the tail lights on Mr. Fenton’s truck were not illuminated. The running lights were illuminated.

[ 22 ] Mr. Fenton drove eastbound on Brock Avenue and entered the traffic roundabout at its intersection with Peatt Road. He made a right turn and began driving southbound on Peatt Road in the direction of its intersection with Goldstream Avenue. [ 23 ] Cpl. Holmes followed Mr. Fenton through the roundabout and onto Peatt Road. [ 24 ] The posted speed limit on Peatt Road between Brock Avenue and Goldstream Avenue is 50 km/hr. The road is straight all the way south to Goldstream Avenue. [ 25 ] About 200 metres north of the intersection of Peatt Road and Goldstream Avenue there is a pedestrian crosswalk.

At the crosswalk there is an island separating the northbound and southbound lanes. [ 26 ] Mr. Fenton slowed his truck at the crosswalk where the road narrowed. After passing the crosswalk Mr. Fenton accelerated. He had a clear straight stretch of road for approximately 200 metres to the intersection with Goldstream Avenue. [ 27 ] Cpl. Holmes continued to follow Mr. Fenton’s vehicle. He activated his police car’s emergency lights but not its siren. [ 28 ] As Mr. Fenton accelerated from the crosswalk towards Goldstream Avenue, he did not see the police car lights illuminated behind him. [ 29 ] Cpl.

Holmes heard the sound of Mr. Fenton’s truck accelerating and could see the back end of the truck wiggle a bit. He believed that Mr. Fenton was fleeing, although that was not the case. [ 30 ] At that time, Cst. Beckett was driving her police car eastbound on Goldstream Avenue towards its intersection with Peatt Road. [ 31 ] Cst. Beckett entered the intersection on a green light. Mr. Fenton entered the intersection on a red light at a high rate of speed. He struck the driver’s side of Cst. Beckett’s police vehicle causing it severe damage. [ 32 ] Cpl. Holmes saw the collision.

He described it over his radio as “this explosion, there’s just glass and smoke and dust everywhere.” [ 33 ] Mr. Fenton’s traffic light had been red for eight seconds before the collision. Cpl. Holmes’ emergency lights were on for between five and seven seconds before the collision. Mr. Fenton did not apply the brakes on his truck before entering the intersection, but did apply the brakes a split second before he collided with Cst. Beckett’s police vehicle. [ 34 ] As Mr. Fenton had approached Goldstream Avenue, he noticed Cpl. Holmes’ emergency lights in his rear view mirror.

It took him a few moments to realize that the lights were intended for him. Because his attention was drawn to the lights of the police car reflected in his rear view mirror and because his ability to drive was impaired due to his consumption of alcohol, Mr. Fenton failed to see that he was entering an intersection, or that the light was red. [ 35 ] An engineer with Baker Engineering conducted two different collision analyses and concluded that, at the time of the collision, Mr. Fenton’s truck was travelling between 76 km/h and 90 km/h. [ 36 ] The GPS data from Cpl.

Holmes’ police vehicle shows that near the crosswalk Cpl. Holmes slowed down from a speed of 58 km/h to 52 km/h and then accelerated up to 63 km/h. [ 37 ] Cpl. Holmes stopped his vehicle at the scene of the collision and radioed for assistance. He placed Mr. Fenton under arrest and handcuffed him to the steering wheel of his truck. He noticed the airbag had gone off and that there was a strong chemical smell. [ 38 ] A man who lived in an apartment on Peatt Road and near the intersection heard the crash. He left his apartment and went down to the accident scene to assist. He described Mr.

Fenton as “dazed and confused.” He concluded that Mr. Fenton was “clearly in shock as he did not answer anything”. Mr. Fenton asked him how the officer was. The man said that he thought Mr. Fenton had killed her. Mr. Fenton “slumped over and began to cry.” [ 39 ] Another man was at the Tim Hortons restaurant on Goldstream Avenue when he heard the crash. He went to the scene to see if he could assist. As he was standing beside Mr. Fenton’s truck he heard Mr. Fenton say “one stupid decision.” Mr. Fenton then put his head down and mumbled something which the man could not understand. [ 40 ] Cpl.

Holmes attempted to assist Cst. Beckett. The driver’s side of her vehicle was crushed and she was pinned in her vehicle. She was non-responsive. Cpl. Holmes described her as “lifeless” she wasn’t breathing, I could see no motion, her eyes were open.” He could not find a pulse. [ 41 ] Cpl. Holmes tried repeatedly to open the driver’s door and passenger’s door of Cst. Beckett’s vehicle. Civilians and other police officers arrived to assist him. Paramedics and firemen also arrived on the scene. [ 42 ] Eventually, they were able to get the driver’s door open, free Cst. Beckett and place her onto a gurney.

She was then taken to Victoria General Hospital. [ 43 ] Dr. Ross Hooker was the Emergency Room doctor on duty at Victoria General Hospital. He assessed Cst. Beckett when she arrived. He noted evidence of significant injuries and no signs of life. [ 44 ] Dr. Hooker pronounced Cst. Beckett deceased at 4:08 a.m. [ 45 ] Back at the scene of the collision, people made observations of Mr. Fenton. [ 46 ] Grant Boscoe was one of the paramedics who attended the scene. Mr. Fenton advised Mr. Boscoe that he had some bilateral

hip pain and chest discomfort. Mr. Boscoe attributed that to being caused by the inflation of the airbag. [ 47 ] Two other paramedics, Tyler Lavoie and Jonathan Vandermilt, noted that Mr. Fenton’s speech was slurred. Mr. Vandermilt said that Mr. Fenton “appeared to be intoxicated ... you know, the sluggish response that heavily intoxicated people do have.” [ 48 ] Mr. Lavoie asked Mr. Fenton some questions to determine his alertness. He found Mr. Fenton to be very reluctant to answer questions. Mr. Fenton denied consuming alcohol. When asked what he had for dinner, Mr. Fenton refused to answer. [ 49 ] Mr.

Lavoie and Mr. Vandermilt transported Mr. Fenton to the Victoria General Hospital. They arrived at approximately 4:11 a.m. [ 50 ] Dr. Hooker examined Mr. Fenton when he arrived at the hospital. Mr. Fenton’s vital signs were normal. Dr. Hooker sent him for a CT scan which showed no injuries. Dr. Hooker noticed that Mr. Fenton was slurring his speech. [ 51 ] At 4:21 a.m. a lab technician, Jill Turcotte, took five vials of blood from Mr. Fenton as part of the routine hospital procedure. [ 52 ] Several nurses dealt with Mr. Fenton at the hospital.

They all noticed that he smelled of alcohol and that his speech was slurred. They concluded that he was intoxicated. [ 53 ] Cst. Kerry Whitbread attended the hospital to assist with the police investigation. At 4:27 a.m., Cst. Whitbread advised Mr. Fenton he was under arrest. He also advised Mr. Fenton of his Charter rights and warnings. Mr. Fenton indicated he wanted to speak to a lawyer, Jeremy Carr. Cst. Whitbread began attempting to reach Mr. Carr. [ 54 ] Cst. Whitbread noticed a strong odour of liquor on Mr. Fenton’s breath. He also noticed that Mr. Fenton’s eyes were bloodshot and watery.

He formed the opinion that Mr. Fenton had been operating a motor vehicle while his ability to do so was impaired by alcohol. At 4:39 a.m. Cst. Whitbread arrested Mr. Fenton for impaired driving causing death and advised him again of his Charter rights. [ 55 ] At 4:40 a.m. Constable Whitbread read the blood demand to Mr. Fenton. He did so before Mr. Fenton had an opportunity to speak to a lawyer. When asked if he understood, Mr. Fenton responded “I don’t comply.” When Cst. Whitbread explained that it was a criminal offence to refuse to provide a sample, Mr.

Fenton still refused. [ 56 ] One of the attending nurses, Katherine Phillips, had some conversation with Mr. Fenton. Mr. Fenton described the accident to her, saying that Cst. Beckett came “out of nowhere,” she “t-boned me” and she “just rammed me as hard as she could.” [ 57 ] He told her that the collision happened in a roundabout. This was not correct. Ms. Phillips described Mr. Fenton as tearful and crying but cooperative with her. She was present when the police advised Mr. Fenton that the offences he would be charged with carried a life sentence. She heard Mr.

Fenton say that he would kill himself before going to jail for life. [ 58 ] Ms. Phillips noted that Mr. Fenton had a strong smell of alcohol coming from his mouth. He again denied drinking. She described his movements as clumsy and sloppy, and his speech as slurry. She concluded he was impaired. [ 59 ] At 6:20 a.m. the lawyer, Mr. Carr, called in response to the messages Cst. Whitbread had left for him. Cst. Whitbread gave Mr. Carr some information about the case and then gave the phone to Mr. Fenton to speak with him in private. [ 60 ] At 6:38 a.m., after Mr. Fenton had finished speaking with Mr. Carr, Cst.

Whitbread again asked him if he would be willing to provide a blood sample. Mr. Fenton refused. [ 61 ] Mr. Fenton has a very limited and vague recollection of the interaction he had with civilians, police, ambulance or hospital employees after the collision. [ 62 ] On April 6, 2016 Cst. Stephen Miles obtained a search warrant to seize the blood samples taken by the lab technician, Ms. Turcotte. The samples were analysed and found to contain 287 mg of ethyl alcohol in 100 mL of blood (287 mg%). [ 63 ] On April 8, 2016 Dr. Doyle conducted an autopsy on Cst. Beckett. Dr.

Doyle found that she had suffered the following injuries: • 10 cm gash on her head; • minor cuts on her left arm and hand from flying glass; • minor cuts on her left eyebrow and face from flying glass; • bleeding out of her left ear; • bruising on her right leg; • broken clavicle bone on her left side; • many broken ribs; • anterior neck hemorrhage; • lacerated aorta; • severed spine

[ 64 ] Dr. Doyle determined the cause of Cst. Beckett’s death was blunt force trauma and was an acceleration/deceleration injury. He found that her ruptured aorta and severed spine alone were sufficient to cause her death. [ 65 ] When the police searched Mr. Fenton’s truck they found an empty beer can in the cab and three empty beer cans and other alcoholic beverage containers in the box of the truck.

They also found a sealed can of beer in the glove box and an empty cardboard beer container in the box of the truck. [ 66 ] Two businesses located near the intersection where the collision occurred had video surveillance cameras. Two short videos were played in court during sentencing submissions. One of the videos showed the collision. [ 67 ] A person living in an apartment near the intersection was awakened by the collision. He got up and recorded the aftermath of the collision using his cell phone. A portion of that recording was also played in court. [ 68 ] Cst. Beckett’s police vehicle and Mr.

Fenton’s truck were each inspected by mechanics. The inspection of the police vehicle revealed it was in good condition. [ 69 ] The inspection of Mr. Fenton’s truck revealed, among other things, that the tires were in poor condition, that the tires were oversized compared with the tires recommended by the manufacturer and that the brakes were working properly. [ 70 ] The inspection also showed that the truck was lifted at the front and rear suspension. The oversized tires also increased the height of the vehicle. Overall the height was raised 8.48 cm in the front and 13.56 cm in the rear. [ 71 ] At the time, Mr.

Fenton had only owned the truck for one or two months. The only changes he made to it were to the front suspension. Circumstances of the Offender [ 72 ] Mr. Fenton was born on March 3, 1988. He was 28 years old when he committed the offences. [ 73 ] He is the middle child of three children born to Kenneth Fenton and Marilyn Fenton. He was born in North Bay, Ontario and moved with his family to Langford, B.C. when he was two or three years of age. [ 74 ] The family moved to Langford because Mr.

Fenton’s father accepted a term contract position with a local utility company. [ 75 ] After he completed the contract, the Fentons opened their own heating business. They continue to operate the business. [ 76 ] When Mr. Fenton and his siblings were growing up, Mrs. Fenton stayed home to raise them. This allowed the children to be involved in several sports and other community activities. [ 77 ] Mr. Fenton was raised in a good home, free of any mental or physical abuse or substance abuse. [ 78 ] Mr. Fenton attended Belmont Secondary School. He graduated from grade 12 in 2007.

While he was not strong in academic subjects, he excelled at the industrial arts. When in grade 12 he was asked to be a teacher’s assistant to help other students in their shop courses. [ 79 ] After finishing high school, Mr. Fenton did a variety of work including small engine repair and commercial fishing. [ 80 ] He then attended Camosun College in Victoria where he studied to become a gas fitter. Over approximately four years he completed an apprenticeship. He has also taken other courses and has acquired various certificates. [ 81 ] Mr.

Fenton is now a journeyman gas fitter and is employed full time in his family’s heating business. [ 82 ] Mr. Fenton was in a relationship with Ashley Blair from 2010 until they separated in January 2016. Together they have a son who will be four years old next month. [ 83 ] Mr. Fenton has been living at his parent’s residence since May 2016. His son visits a few times a week and generally stays overnight on Wednesday and Friday nights. [ 84 ] At the time Mr. Fenton committed the offences he had no criminal record.

He did, however, have a significant record of Motor Vehicle Act driving offences. [ 85 ] His driving record includes convictions for offences of driving without insurance, driving without a valid driver’s licence and driving contrary to licence restrictions. [ 86 ] At the time that Mr. Fenton committed the offences for which he is now being sentenced his driving record included two convictions for driving without due care and attention, two alcohol related 24 hour prohibitions and two alcohol related 90 day administrative driving prohibitions.

I note, however, that they all arise out of two incidents of driving - one on July 16, 2006 and one on January 7, 2010. [ 87 ] Included in evidence is a transcript of the proceeding in which Mr. Fenton was sentenced on October 27, 2011 for his driving on January 7, 2010. The transcript shows that , pursuant to section 606(4) of the Criminal Code , Mr. Fenton pled guilty to the offence of driving without due care and attention contrary to section 144(1)(

a) of the Motor Vehicle Act. The transcript also shows that Mr. Fenton had consumed alcohol on the night of the offence. The court imposed a $1000 fine together with the 15% victim fine surcharge. [ 88 ] On April 28, 2016, Mr. Fenton received a 90 day administrative driving prohibition which arose out of the same circumstances

giving rise to the criminal offences for which he is now being sentenced. [ 89 ] On June 21, 2016 Mr. Fenton received a one year driving prohibition imposed by the superintendent of motor vehicles. [ 90 ] Following his arrest on April 5, 2016 and while still at Victoria General Hospital, Dr. Hooker, the Emergency Room physician, requested that Mr. Fenton be assessed by psychiatrist Dr. Kiri Simms at the Royal Jubilee Hospital. [ 91 ] Mr. Fenton saw Dr. Simms later on April 5, 2016. Her initial report was entered in evidence. [ 92 ] In her report, under the heading Addictions History , Dr.

Simms writes: Jacob does not feel he has any addiction issues. He does not use substances other than marijuana. He smokes a joint three or four times a week, and feels that this is under control. The patient tells me that he drinks alcohol once or twice a month when camping and that when he is camping he can finish an eight pack to himself. He says that he is able to stop alcohol quite easily and does not believe that he has any issues of addiction to alcohol. [ 93 ] In her report, under the heading, Mental Status Examination , Dr.

Simms writes, in part, as follows: Jacob is very remorseful and crying about the incident. He appears to have a fair degree of mental shock. The remorse is hitting him in waves, as would be entirely expected in such a situation. He alternates between not feeling that anything has actually sunk in yet, at which point his affect is calm, but then this alternates with waves of remorse, at which point he is tearful. He does have suicidal thinking as a result of this stress, but he has no plan. He also is able to recognize that he has a son and parents and that with help he could get through this difficult time.

He agrees to go to outpatient counseling once he is released, and I believe that this shows good insight. He was very thankful for the opportunity for support and counseling through this time. He has been pleasant and cooperative throughout, and the police officer present when I first met him confirmed that he has been cooperative and pleasant throughout. [ 94 ] Under the heading , Diagnoses , Dr. Simms writes: Acute stress reaction given horrific circumstances. [ 95 ] Dr. Simms referred Mr.

Fenton to Urgent & Short Term Assessment and Treatment (USTAT) through Mental Health & Substance Use, Island Health for crisis support and assessment. [ 96 ] During the period from April 7, 2016 to December 20, 2016 Mr. Fenton had a number of visits with a USTAT social worker, Lynne Cowburn, and with a USTAT psychiatrist, Dr. Karen Palmer. [ 97 ] In a report dated June 20, 2017 and addressed to Mr. Fenton’s lawyers, Lynne Cowburn states as follows: The events leading up to Mr. Fenton’s legal challenges were not addressed at USTAT. Therapy sessions focused on support and containment for Mr.

Fenton as he presented in an acute state of distress and grief. Mr. Fenton’s symptoms included a severe disruption in sleep, mood, energy, concentration and motivation. This was evident in Mr. Fenton’s nervous tremor, fidgeting, appearance of sadness (tears, depressed affect) and feelings of devastation. Mr. Fenton reported symptoms consistent with post- traumatic stress disorder experiencing flashbacks, nightmares, sleeplessness and hypervigilance. Psychotherapy in response to the above involved psycho education, developing and maintaining coping strategies for anxiety, depression and distress tolerance.

In addition, psychotherapy provided an avenue for Mr. Fenton to express and understand his multitude of his complex emotions. [ 98 ] Mr. Fenton saw Dr. Palmer on April 19, July 15, August 5, November 25 and December 20, 2016. [ 99 ] In her report written after her first visit with Mr. Fenton on April 19, 2016, Dr. Palmer states, in part, as follows: Immediately after the accident, he found himself to be completely and utterly preoccupied with what happened. He found himself thinking and rethinking about things and was also being bombarded with images and flashbacks.

He was hardly able to sleep at all and felt perpetually on edge. He felt depleted of energy and struggled to get out of bed in the morning. He could not eat. At first, he did have thoughts of suicide, but did not attempt to act on them at all. Over the last little while, things have settled a little bit for him. He continues to feel somewhat irritable and grumpy, but has not been lashing out towards others in any way. Rather, he is choosing to be fairly isolated. The only people he really spends time with or his parents, Ashley and his son. Jake has not required psychiatric treatment prior to this date.

He did struggle after his friend’s death, but not to the degree that he required any kind of mental health intervention. Jake is a pleasant young man who has experienced at horrific trauma. He really does not have a prior mental health history. I believe that he meets criteria for diagnosis of acute stress reaction, which is certainly understandable given the nature of what he is experienced. [ 100 ] In her report written after her final visit with Mr. Fenton on December 20, 2016, Dr. Palmer writes, in part, as follows: Overall, his mood is generally pretty good.

He does become anxious and worried when he thinks about this court case, but on the whole he is tolerating this well. He has no difficulties with his sleep. He is eating well. He has a good level of energy. His concentration is fair. He is future oriented, and there is no evidence of suicidality. He is not taking any medications. He is not drinking, and he is not using drugs.

At this point, he does not feel that he needs the additional support. As a result, we have chosen to close his chart, with the understanding that if he runs into difficulties in the future, he can see his family doctor for a referral to adult mental health. [ 101 ] Mr. Fenton provided the Court with 33 character letters. They include letters from his father, mother, sister, other relatives and family friends. [ 102 ] The letters are all positive and together paint a picture of Mr.

Fenton as a man who is kind, caring, always willing to help others, courteous and quiet in manner, good hearted, polite, respectful, hard-working and a dedicated father. [ 103 ] The letters also show that Mr. Fenton is very remorseful and has been deeply affected by the terrible consequences of his criminal conduct. [ 104 ] Since April 5, 2016 Mr. Fenton and his parents have been stigmatized and vilified by members of the community. They have been attacked verbally. Their residence and family business have both been vandalized. The business has also suffered financially as a result of Mr.

Fenton’s offending. [ 105 ] Mr. Fenton’s mother suffers from her own depression and rarely goes out. [ 106 ] Defence counsel, Mr. Marshall, provided an example of what the Fenton family has endured. He advised the Court that after court was finished on the first day of the sentencing proceeding, Mr. Fenton and his family were in the parking lot walking to their vehicle when someone said to them that, like his two friends, Mr. Fenton should kill himself. That person shouted “fucking make it a hat trick”. [ 107 ] At the end of the second day of sentencing proceeding, Mr.

Fenton read to the Court a statement which he had prepared. He was clearly upset when he did so. [ 108 ] In his statement he acknowledged the devastation and unimaginable pain his actions have caused. He expressed empathy for Cst. Beckett’s family. [ 109 ] He stated, in part: The accident is on my mind every day, especially when I wake up and when I go to sleep. I think about how Sarah’s family must feel and I am heartbroken for the pain that I’ve caused Sarah’s family. From the bottom of my heart I am sorry for this tragedy. I’m sure it seems to you very unfair that I am here and Sarah is not.

I would agree with that. I was in the wrong and an innocent person had to pay the price. I would trade places with Sarah if I could. I want you to know that I have been getting counseling and that I am no longer drinking. I hope to be a better person in the future. Victim Impact of the Offending [ 110 ] Mr. Fenton’s reckless and thoughtless conduct has had horrendous consequences.

He caused the tragic death of Sarah Beckett, a 32 year RCMP officer, wife, daughter, sister and, most significantly, mother of two young children. [ 111 ] The impact of her death on her family, friends and fellow police officers has been devastating. [ 112 ] I was provided with victim impact statements made by Cst. Beckett’s mother, husband, sister and brother in law. [ 113 ] Crown counsel, Mr. Stokes, read the statement of Cst. Beckett’s mother, Gurcharn Beckett to the Court. [ 114 ] Mrs.

Beckett states that following her daughter’s death she found herself unable to control her emotions, was crying constantly and fighting with family and friends who tried to comfort her. She was referred to a psychiatrist and prescribed anti-depressant and anti- anxiety medications as well as sleeping pills. She still takes those medications. [ 115 ] She states that every day her daughter is the first thing she thinks about when she wakes up and the last thing on her mind when she goes to bed. [ 116 ] Brad Aschenbrenner, Cst. Beckett’s husband, read his statement to the Court.

His hands shook as he did so. [ 117 ] He stated that he met Sarah Beckett ten years before she was killed. He said their eldest son was born in March 2011 and their younger son was born in February 2014. [ 118 ] He said he will never forget the morning his wife was killed. He recounted how he woke up at 3:30 a.m. on April 5, 2016 and felt like there was something wrong. A few moments later a police officer knocked on his door and informed him of his wife’s death. [ 119 ] He said that the worst part was seeing the look in the eyes of his five-year-old son when he told him his mommy wasn’t coming home.

He said that he has relived that look every day since. [ 120 ] He said it is heart breaking when his son comes crying to him saying he misses his mommy and wants her back. [ 121 ] He said that he misses his wife terribly every day and that it is difficult to describe how it is to raise two young children by himself and grieve at the same time. [ 122 ] Mr. Aschenbrenner also stated that he has been diagnosed with severe PTSD, depression and very high blood pressure. He stated that medication has provided him with little relief.

He is still not able to go back to work and is supporting himself and his sons with disability benefits.

[ 123 ] The statements of Cst. Beckett’s sister Shannon Beckett and brother in law Robert James are also heart wrenching. [ 124 ] Clearly, there is no sentence which I could impose which would bring back Cst. Beckett or put an end to the emotional pain which her family and friends continue to suffer. Principles and Purposes of Sentencing [ 125 ] The purpose of sentencing is set out in

section 718 of the Criminal Code . The

section reads as follows: 718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.

Section 718.1 provides that it is a fundamental principle that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2 provides that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.

Section 255.1 provides that where a court imposes a sentence for an offence committed by means of a motor vehicle, evidence that the concentration of alcohol in the blood of the offender at the time when the offence was committed exceeded 160 mg of alcohol in 100 mL of blood shall be deemed to be an aggravating circumstance relating to the offence that the court shall consider. Aggravating and Mitigating Factors [ 126 ] The aggravating factors in this case include the following: • The high level of Mr. Fenton’s impairment; • That Mr.

Fenton’s blood alcohol concentration at the time of the collision exceeded 160 mg/ %; • That, at the time of the collision, Mr. Fenton was travelling at a minimum of 76 km/hr when the posted speed limit was 50 km/hr; • Mr. Fenton’s Motor Vehicle Act driving record which includes alcohol related convictions and driving prohibitions; • That the taillights of Mr. Fenton’s truck were not illuminated; • The impact Mr. Fenton’s criminal conduct has had on the family and friends of Cst. Beckett; • That following the collision Mr. Fenton denied having consumed alcohol and suggested that Cst.

Beckett was responsible for the accident; • That prior to the commission of the offences, Mr. Fenton took no significant steps to address his difficulty with alcohol; • That the person who Mr. Fenton killed was a police officer who was on duty at the time. [ 127 ] The mitigating factors in this case include the following: • Mr. Fenton intended from the beginning to plead guilty to the charges and has done so, showing he accepts responsibility for his offending; • Mr. Fenton, then 28 years old, is still relatively youthful; • Mr. Fenton has no criminal record; • Mr. Fenton is genuinely remorseful; • Mr.

Fenton has a history of steady employment and will have employment upon completing his jail sentence; • Mr. Fenton has considerable support from family and friends which will assist him in his rehabilitation after he is released from prison; • Since being charged on September 14, 2016, Mr. Fenton has not consumed alcohol and has not violated any of his bail conditions.

Sentencing Case Law [128] Counsel provided the Court with over 30 sentencing decisions. I have reviewed and considered all of them. [129] Crown counsel rely on the following cases: • R. v. Lacasse, 2015 SCC 64 • R. v. Johnson, (BC CA), [1996] B. C. J. No. 2508 • R. v. Junkert, 2010 ONCA 549 • R. v. Ramage, 2010 ONCA 488 • R. v. Smith, 2013 BCCA 173 • R v. Selvakumar, 2016 ONCJ 462 • R. v. Megna, 2016 ONCJ 624 • R. v. McGuiney, 2016 BCSC 1090 • R. v. Sater, 2014 BCSC 1036 • R. v. Niganobe, [2008] O.J. No. 4181 • R. v. Niganobe, [2010] 2959 (Ont CA) • R. v.

Bansal, 2017 BCCA 93 [130] Defence counsel rely on the following cases: • R. v. Berner, 2010 BCPC 305; affirmed 2013 BCCA 188 • R. v. Charles, 2009 BCSC 1928; affirmed 2011 BCCA 68 • R. v. Casimir, 2001 BCCA 310 • R. v. Scott, 2008 BCCA 307 • R. v. Woloshyn, 2006 BCCA 228 • R. v. Clyne, 2009 BCSC 312 • R. v. Klausen, 2004 BCPC 382 • R. v. Matheson, 2011 BCSC 308 • R. v. Cardinal, 2015 BCSC 2536 • R. v. Gelowitz, 2013 BCPC 256 • R. v. Evers, 2006 BCPC 148 • R. v. Warren, 2012 BCPC 483 • R. v. Vance, 2017 BCPC 50 • R. v. Brady, 2005 BCPC 499 • R. v. Daponte, 2005 BCPC 330 • R. v. McGuiney, 2016 BCSC 1090 • R. v.

Healey, 2014 BCSC 1645 • R. v. Cece, (ON CA), 2004 O.J. No. 3938 • R. v. Noel, 1995 B.C.J. 1852 [131] The sentencing of persons who commit the offence of impaired driving causing either bodily harm or death was considered in2015 by the Supreme Court of Canada in R. v. Lacasse (supra). [132] The Supreme Court considered an appeal of a sentence imposed by the Québec Court of Appeal. [133] Mr. Lacasse pled guilty to two charges of impaired driving causing death. His guilty pleas were entered relatively late in the

court process. [134] On June 17, 2011 at about 4 a.m. he lost control of his vehicle in a curve on a country road. He was speeding and his ability todrive was impaired by alcohol. The two passengers sitting in the back of his vehicle died instantly. [135] At the time of sentencing Mr. Lacasse was 20 years old, was living with his parents and did not have a criminal record. He had,however, been convicted of some speeding offences. [136] The sentencing judge imposed two concurrent sentences of six years and six months jail. [137] The Québec Court of Appeal found that the sentence imposed was excessive.

In the Court’s opinion, the trial judge should havegiven greater consideration to Mr. Lacasse’s potential for rehabilitation and placed less emphasis on the objective of making an exampleof an offender. [138] The Court of Appeal reduced the sentence imposed by the trial judge to four years. The Crown appealed that decision. [139] The Supreme Court of Canada allowed the appeal and restored the jail sentence of 6 years and six months imposed by the trialjudge. [140] At paragraph five of the decision, Mr.

Justice Wagner, writing for the majority, states as follows: In the context of offences such as the ones in the case at bar, namely impaired driving causing either bodily harm or death, courts fromvarious parts of the country have held that the objectives of deterrence and denunciation must be emphasized in order to convey society’scondemnation. [141] At paragraph seven, he writes: The increase in the minimum and maximum sentences for impaired driving offences shows that Parliament wanted such offences to bepunished more harshly. [142] At paragraph eight he quotes a passage from the Supreme Court’s earlier decision in R. v.

Bernshaw (SCC),[1995] 1 S.C.R.254 at para.16, as follows: Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, ithas a far greater impact on Canadian society than any other crime.

In terms of the deaths and serious injuries resulting in hospitalization,drunk driving is clearly the crime which causes the most significant social loss to the country. [143] At paragraph 12, Wagner J states that the severity of a sentence depends not only on the seriousness of the crime’sconsequences, but also on the moral blameworthiness of the offender.

He also states that determining a proportionate sentence is adelicate task. [144] At paragraph 73, he states that the objectives of deterrence and denunciation are particularly relevant to offences such asimpaired driving that may be committed by ordinarily law- abiding people.

He says that it is such people, more than chronic offenders,who will be sensitive to harsh sentences. [145] At paragraph 79, he says that the trial judge was justified in attaching less weight to the mitigating factor of the offender’s youthbecause it is young people who are affected the most by motor vehicle accidents that result from impaired driving. [146] At paragraph 81, he says that the trial judge was also right to attach less weight to the remorse expressed by Mr. Lacasse and tohis guilty plea because of the lateness of that plea. [147] In the 1996 B.C. Court of Appeal’s decision in R. v.

Johnson (supra), Mm. Justice Ryan, writing for the Court, states thefollowing at paragraph 30: Drinking driving causing death or bodily harm offences are senseless crimes because they are so easily avoided and at the same timethey are so easily committed by ordinary citizens. They are unlike any other crimes in the sense that nothing much can be offered tojustify driving drunk. Crimes of theft may be motivated by poverty, crimes of assault may be motivated by fear, but what excuse can beoffered for driving drunk, except that alcohol allowed the offender to lose all sense of judgment?

It is for this reason that communitiesrightfully express outrage when victims are killed or injured as a result of such conduct. It is for this reason that both deterrence anddenunciation are legitimate objectives to pursue for this type of offence. [148] Mm.

Justice Ryan notes that assessing an offender’s moral culpability includes considering the consequences of the crimecommitted. [149] At paragraph 33 she writes: It is clear from this passage that a determination of moral culpability, for purposes of sentencing, includes an examination of theintentional risks taken by the offender, the harm he or she has caused, and the degree of deviation from acceptable standards of behaviourthe conduct represents. [150] In its 2013 decision in R. v. Smith (supra) the B.C.

Court of Appeal, confirms that an offender’s moral blameworthiness isincreased as a result of the consequences of a criminal act. [151] At paragraph 60, the Court states that the range of sentence in cases of impaired driving causing death is 18 months upwards toeight years.

[ 152 ] As I stated earlier, I have reviewed and considered all of the sentencing decisions provided to me by counsel.

As is almost always the case, none of them are directly comparable with the case before the Court. [ 153 ] Defence counsel submit that the appropriate range of sentence in this case is two to three years jail and ask the Court to impose a sentence of three years. [ 154 ] Crown counsel submit that the appropriate range of sentence in this case is three to five years and ask the Court to impose a sentence at the high end of that range. [ 155 ] Crown counsel acknowledge that they are not aware of any British Columbia case of impaired driving causing death where a jail sentence of as much as five years has been imposed where, as in this case, there is a single victim and the offender has no prior criminal record. [ 156 ] Crown counsel say that the Court should look to Ontario cases and direct me to the case of R. v.

Junkert (supra). [ 157 ] Mr. Junkert was convicted following a trial of one count of impaired driving causing death and one count of dangerous driving causing death. [ 158 ] He was speeding and lost control of his car in a curve in a road in a residential neighbourhood. His car left the roadway and struck and killed a woman who was jogging. The victim was 37 years old and left behind her husband and four young children. [ 159 ] The evidence at trial was that Mr.

Junkert’s blood alcohol concentration at the time of the accident was between 130 and 170 mg/%. [ 160 ] The trial judge sentenced him to five years imprisonment on the charge of impaired driving causing death and three years concurrent on the charge of dangerous driving causing death. He imposed a driving prohibition of 10 years following his release from custody. [ 161 ] Mr.

Junkert, who had no prior criminal record, appealed both his conviction and sentence to the Ontario Court of Appeal. [ 162 ] On appeal, he argued that the sentence of five years imprisonment was outside the range of sentences that courts impose for offences of impaired driving causing death for first offenders. [ 163 ] In a unanimous decision, Associate Chief Justice O’Connor writes the following at paragraph 44: There are a number of factors that make this offence serious. The appellant made a choice to drive his car while his ability was impaired.

In doing so, he took the risk that his driving would endanger other members of the community. That risk materialized and the consequences were enormous. A family has been shattered. Theresa Calloway was killed. Her husband is left without a loving spouse. Her four young children will grow up without their mother.

The sentence imposed should reflect the serious consequences that flowed from the appellant’s decision to drive while impaired. [ 164 ] At paragraph 46, Associate Chief Justice O’Connor writes: In my view, a sentence of five years for this offence cannot be said to be “a substantial and marked departure” from the sentences ordinarily imposed on similar offenders for similar offences. In recent years there has been an upward trend in the length of sentences imposed for drinking and driving offences.

The reasons for this trend can be attributed to society’s abhorrence for the often tragic circumstances that result when individuals choose to drink and drive, thereby putting the lives and safety of others at risk. [ 165 ] At paragraph 47, he writes further: The imposition of substantial penalties for drinking and driving offences sends an important message to individuals who are considering driving while their ability is impaired. [ 166 ] Finally, at paragraph 49, O’Connor A.C.J.O states as follows: I recognize that sentences of four to five years for first offenders may be at the high end of sentences imposed by the courts to this point in time.

That said, I do not think that a sentence of five years for this offence is unfit. Nor is it a significant departure from sentences previously imposed so as to warrant interference by this court.

While the sentence in this case may be seen as a slight movement upwards, I am satisfied that the increase, if there is one, is incremental and that it quite properly continues the very gradual trend that has taken place over recent years. [ 167 ] I note that the Junkert case is similar to the case before me in that the accused had no criminal record, there was one victim, the victim was married and the mother of young children and there was not a protracted period of dangerous driving. [ 168 ] The factors identified by the Associate Chief Justice of Ontario as making the case a very serious one are all present in the case before me. [ 169 ] There are no reported British Columbia cases of impaired driving causing death in which the victim was a police officer. [ 170 ] Crown counsel submit that the fact that Mr.

Fenton struck and killed a police officer who was on duty is an aggravating factor which I must consider. [ 171 ] Defence counsel submit that while I must consider the fact that the victim was a police officer, it is not an aggravating factor as such.

[172] Counsel were only able to provide the Court with one Canadian case in which the victims of impaired driving causing deathwere police officers. [173] That is the case of R. v. Niganobe. I have been provided with both the trial decision and the appellate decision. [174] Ms. Niganobe was convicted by a jury of impaired driving causing death, impaired driving causing bodily harm and driving witha blood alcohol concentration over 80 mg/%. [175] She had been at a private residence where she consumed a considerable amount of alcohol.

Around 2:40 a.m. on May 14, 2006she left the home driving her boyfriend’s van. [176] Ms. Niganobe drove the van into an intersection against a red light and broadsided a police car. The collision caused seriousinjury to the police officer driving the car and killed another police officer who was a passenger. The evidence was that her blood-alcohol concentration at the time of the collision was between 185 and 235 mg/%. Following the collision Ms. Niganobe was extremelyuncooperative, profane and disruptive. [177] Following her conviction by the jury, Ms. Niganobe was sentenced by Mr.

Justice Whalen of the Ontario Superior Court ofJustice. He imposed a five year jail sentence. [178] Ms. Niganobe is of aboriginal heritage and was 29 years old at the time of the offence. Justice Whalen properly consideredGladue factors. Ms. Niganobe’s family members were survivors of the residential school system. Her upbringing was described by thesentencing judge as “predictably unhappy and deprived”. [179] She came from a dysfunctional family and had been sexually assaulted as a child.

She had been in several abusive relationshipsand abused drugs and alcohol. [180] She had a criminal record including at conviction for impaired driving in 2003. [181] At paragraph 54, Justice Whalen states as follows: The most aggravating feature is the needless death of one person and the serious injury of another. As I have already observed, theimpact on the victims and their families has been devastating and permanent. It is something that touched the entire community of SaultSte.

Marie and beyond, resulting in memorials that will keep the loss in the public eye for many years to come. [182] I find that this statement applies to the case before me. [183] At paragraph 55, Justice Whalen writes: I conclude that it is also an aggravating factor that the victims were police officers. They were on duty at the time, and while ConstableFreeman had no recollection of most of that morning’s events, from police records it is known that they had been on general patrol intheir police cruiser and were in the process of responding to a complaint when the collision occurred.

The officers had not beeninvestigating the offender, and there was no other factual connection between them other than that they all arrived at the particularintersection at the same time. [184] As authority for his finding that it was an aggravating factor that the victims were police officers, Justice Whalen cites R. v.Cece (2004), (ON CA), 72 O.R. (3d) 321 at paragraph 23 in which, he says, that the Ontario Court of Appeal made itclear that the fact that a victim was a police officer on duty may be taken into account by the sentencing judge, even though the offenderwas not aware that it was a police officer. [185] Ms.

Niganobe, appealed her jail sentence to the Ontario Court of Appeal. In a unanimous decision the Court of Appeal upheldthe five year jail sentence imposed by the trial judge. In doing so, the Court listed the aggravating factors in the case. Interestingly,while the Court noted, as an aggravating factor, the death of one victim and the serious injury of the other, it did not refer to the fact thatthe victims were both police officers.

In my view, had the Court of Appeal decided that the fact that the victims were police officers wasnot, as the trial Judge held, an aggravating factor they would have expressly said so. [186] When I compare the Niganobe case to the case before me, I note that Niganobe has as additional aggravating factors that therewere two victims and that the accused had one prior conviction for impaired driving.

It also has the additional mitigating factor that theaccused is of aboriginal heritage, had a dysfunctional and abusive upbringing and there were significant Gladue considerations. [187] Defence counsel in the case before me argue that Justice Whalen misunderstood and misapplied the Cece decision. [188] They submit that Cece stands for the proposition that the fact that the victim of a crime is a police officer is only a mitigatingfactor if the police officer is engaged in the execution of duty and not when the police officer is just on duty. [189] Defence counsel rely on the case of R. v. Noel (supra).

In that case the B.C. Court of Appeal considers a Crown appeal from aconviction for the offence of resisting or wilfully obstructing a peace officer in the execution of his duty contrary to

section 129 of theCriminal Code. [190] The Court finds that, to secure a conviction for an offence under

section 129, the Crown must prove that the police officer was inthe execution of his or her duty and not just that the police officer was on duty. [191] The Court finds that the law recognizes a distinction between a peace officer being “engaged in the execution of his duty” andsimply being on duty, in the sense that he or she is “at work”. [192] In my view, the finding in Noel that a police officer must be “engaged in the execution of his or her duty” is applicable only to

cases involving a charge under

section 129 of the Criminal Code. [193] The Cece case makes it clear that it is not necessary that a police officer be investigating the accused at the time the policeofficer is killed by the accused to make it an aggravating factor that victim was a police officer.

I disagree with the submission ofdefence counsel that the Cece case restricts a court from finding that the fact that the victim of a crime is a police officer is anaggravating factor to cases where the police officer is engaged in the execution of his or her duty, as opposed to simply being on duty. [194] In my view, the rationale for finding that it is an aggravating factor at sentencing that the victim of a crime is a police officerwho is on duty at the time he or she is killed is based on the fact that police officers in our communities are expected and required to puttheir safety at risk for the purposes of serving and protecting the public. [195] At the time she was killed, Cst.

Beckett was on duty, wearing a police uniform and driving a marked police vehicle. As requiredby her position as a police officer, she was on the road in the middle of the night when most people were sleeping. Although I am toldthat she was on her way to take a coffee break, I expect that if she had received an important call of complaint or witnessed what shebelieved to be the commission of an offence, she would have delayed her coffee break and investigated. [196] It does not make sense to me that the death of Cst.

Beckett would be an aggravating factor if she was actively involved in aparticular investigation but not if she was not. [197] Accordingly, I find that the fact that Sarah Beckett who was killed as a result of Mr. Fenton’s criminal conduct was a policeofficer on duty is an aggravating factor which I must consider in determining the appropriate sentence to impose. [198] As I stated earlier, defence counsel submit that the appropriate range in this case is two to three years jail and ask that a threeyear sentence be imposed.

They provided the court with a large number of British Columbia decisions in cases of impaired drivingcausing death in which a sentence in that range has been imposed. [199] In several of those cases there was more than one victim and/or the offender had a prior criminal record. In some of those casesthere are other aggravating factors such as a protracted period of dangerous driving. [200] The Crown relies on both British Columbia and Ontario decisions.

Upon comparing all of the decisions, it seems to me that,generally, the sentences imposed by Ontario courts for the offence of impaired driving causing are somewhat longer than those imposedby British Columbia courts. [201] While as a judge of the Provincial Court of B.C., I am not bound to follow them, I find the cases of Junkert and Niganobe to bepersuasive. [202] The difference between the British Columbia cases provided to me by counsel and the one before me is that in none of thosecases was the victim a police officer. [203] But for the Ontario case of Niganobe, there is no precedent for me to consider when determining whether it is an aggravatingfactor when the victim of impaired driving causing death is a police officer on duty. [204] To my knowledge this is the first case of impaired driving causing death in British Columbia in which the victim was a policeofficer on duty at the time. [205] The case before me has garnered an exceptional amount of public interest and expressed condemnation.

To my knowledge, Cst.Beckett is the only female police officer to have ever been killed while on duty on Vancouver Island. [206] This tragic case has touched the entire Vancouver Island community and will remain in the memories of members of thecommunity for a long time to come. [207] As Mm. Justice Ryan stated in the Johnson case over 20 years ago, communities rightfully express outrage when victims arekilled or injured as a result of drunk driving. [208] We must be clear, however, that a sentence imposed by a court cannot be based upon vengeance.

Retribution, on the other hand,can be an objective of sentencing. [209] As the Supreme Court of Canada stated in R. v. C.A.M. (SCC), [1996] 1 S.C.R. 500 there is an importantdistinction between vengeance and retribution.

The Court noted that vengeance represents an uncalibrated act of harm motivated byemotion and anger as a reprisal for harm inflicted by the offender, whereas retribution, in a criminal context, represents an objective,reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender havingregard to the intentional risk-taking of the offender, the consequential harm caused by the offender and the normative character of theoffender’s conduct. [210] As stated by Mr.

Justice Wagner in the Supreme Court of Canada’s decision in Lacasse, determining a proportionate sentence isa delicate task. Decision [211] I have carefully considered and balanced the mitigating and aggravating factors in this case. Having done so, I recognize that itis not possible to do so with precision. [212] All things considered, I find that a global jail sentence of three years suggested by defence counsel falls short of what is calledfor in this case.

[ 213 ] While I believe that it is unlikely that Mr. Fenton will re-offend, the sentence I impose must convey the community’s condemnation of his criminal conduct and its severe consequences and deter other members of the community from driving when their ability to do so is impaired by alcohol or drugs. [ 214 ] Having carefully considered the circumstances of the offending, the circumstances of the offender, the victim impact, the purpose and principles of sentencing, the aggravating and mitigating factors, and the case authorities, I have decided that the appropriate sentence to impose upon Mr.

Fenton for the offence impaired driving causing death is four years jail and do so now. I impose a concurrent sentence of three years jail for the offence of dangerous driving causing death. [ 215 ] Now, I must consider what length of driving prohibition to impose. [ 216 ] Crown counsel submit that I should impose an eight to 10 year driving prohibition commencing upon Mr. Fenton’s release from custody. [ 217 ] Defence counsel submit that I should impose a five year driving prohibition commencing on the date of sentencing. They say that Mr.

Fenton’s rehabilitation will be supported by his employment following his release from custody and that because he must travel in the course of his employment a shorter driving prohibition is appropriate. [ 218 ] I find that Mr. Fenton should be prohibited from driving for a total of 10 years from the date he committed the offences. Given that Mr. Fenton has already been prohibited from driving for over one year and that I have sentenced him to serve a term of four years in prison, I impose a five year driving prohibition commencing upon the expiration of that term.

Effectively then, he will be prohibited from driving for just over 10 years. [ 219 ] Finally, I make a DNA order in the usual form and an order pursuant to

section 109 of the Criminal Code prohibiting Mr. Fenton from possessing weapons for a period of 10 years. [ 220 ] I recognize that to many members of the community the sentence I have imposed will seem inadequate. There is no sentence I could impose which would bring Sarah Beckett back to life. In deciding the proper sentence to impose in this case, I must follow the law as it has developed. In particular, I must be guided by the sentences which have been imposed in past cases of impaired driving causing death in British Columbia. BY THE COURT ______________________________ The Honourable Judge R. Lamperson