R. v. Ostrowski Date:, 2015 BCPC 96

Citation: R. v. Ostrowski Date: 20150414 2015 BCPC 0096 File No: 195672-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. Andrew Henry Ostrowski REASONS FOR SENTENCE OF THE HONOURABLE JUDGE P. D. GULBRANSEN Counsel for the Crown: Winston Sayson, Q. C., Angela Lee Counsel for the Defendant: Stephen Hutchison

Place of Hearing: Surrey , B.C. Date of Hearing: Mar. 30, 2015 Date of Judgment: April 14, 2015 Introduction [ 1 ] On May 22, 2014, I convicted Andrew Ostrowski of dangerous operation of a motor vehicle causing death; causing death by operating a motor vehicle while his ability to drive was impaired by alcohol and leaving the scene of an accident, knowing that a person involved in the collision had suffered bodily harm. [ 2 ] The parties agree that I must impose a prison sentence. The paramount considerations in this sentencing are deterrence and denunciation.

The Crown seeks a total sentence of 6 to 8 years in prison. The defence suggests that a fit sentence should be 3 to 3½ years. There is no dispute that the accused should receive credit for the time that he has served in prison awaiting sentence at a rate of 1.5 days for each day served. (He has been in custody since August 6, 2014, when his surety rendered him.) Circumstances of the Offence [ 3 ] My reasons for judgment at trial provide a detailed discussion of the circumstances of the crime. A brief

summary of the essential facts is as follows. At 8:30 p.m. on September 6, 2011, Ostrowski drove a Honda CRX from his driveway and headed southbound on 132 nd St. in Surrey. His friend, Sergio Martinez, was in the front passenger seat. [ 4 ] The accused was prohibited from driving; the vehicle was unlicensed and uninsured. Ostrowski was also intoxicated. His blood alcohol level exceeded 80 mg percent and was most likely close to 150 mg%. [ 5 ] The driver of a vehicle behind the Honda became so concerned about the erratic manner in which Ostrowski was driving that he called 911 to alert the police.

Seconds after the witness called the police, the Honda approached the intersection of 132 nd St. and 88 th Avenue. The light was red for traffic on 132 nd . There were several cars ahead of the Honda, which had all stopped for the red light. [ 6 ] Instead of stopping his vehicle, the accused pulled his vehicle into the left turn lane and drove into the intersection at a speed estimated to be between 36 and 60 km/h. A Nissan Armada SUV, a much bigger vehicle than the Honda, being driven eastbound on 88 th Avenue, entered the intersection on the green light. It struck the Honda on the passenger side.

Its speed was between 58 and 61 km/h. [ 7 ] When the vehicles eventually came to rest, Ostrowski got out through the driver’s door and left the scene, headed south on 132 nd St. His passenger, Mr Martinez, had been gravely injured. He died a few hours later in hospital. The driver of the Nissan did not suffer any major injuries. [ 8 ] The police located Ostrowski about 20 minutes later, on a side street which was about six blocks south of the accident scene. He was arrested, but had to be taken to hospital for treatment of a broken wrist.

The delay at the hospital in getting treatment for Ostrowski’s injury effectively prevented the police from getting blood samples pursuant to a demand under the Criminal Code . However, the police seized blood taken from the accused by hospital personnel for medical purposes and had it analysed at the RCMP crime lab. The analysis determined that the accused’s blood alcohol level, approximately 2 hours after the collision, was between 127 and 138 mg percent. [ 9 ] While at the hospital, Ostrowski told a police officer that the victim, Sergio Martinez, was his “best man and his best friend”.

At the trial, I rejected Ostrowski’s testimony that he was not the driver and that a third man, who also left the scene, had been driving when the collision occurred. Circumstances of the Offender [ 10 ] Mr. Ostrowski is 29 years old. He does not have a lengthy criminal record, but has convictions for assault and robbery. As well, in 2008, he was convicted of operation of a motor vehicle while his ability to drive was impaired by alcohol. His driving record shows three convictions for driving while prohibited or suspended. The last of these offences was committed in 2009. [ 11 ] Mr.

Ostrowski has struggled with drug and alcohol addiction since his teens. The abuse was sufficiently severe to result in a diagnosis in the past of “drug-induced psychotic episodes”. The psychiatric report indicates that he presently has no symptoms of major mental illness. He has also been diagnosed as suffering from ADHD. The psychiatric report also states that Ostrowski’s behaviour over the last 10 years suggests a diagnosis of “Antisocial Personality Disorder”. The psychiatrist concludes that Ostrowski is a high risk to reoffend, but much of this risk is based upon his drug and alcohol addiction.

He notes that Ostrowski appears to have finally realized how serious the problem is and has made some real progress in dealing with it. [ 12 ] Mr. Ostrowski has been employed at various jobs – often in the construction industry, but has struggled with maintaining steady employment. He is not married, but has two children by two different women. He has not been involved consistently in either of those children’s lives, but has worked recently to become more involved. [ 13 ] The accused has aboriginal roots. His mother was born into the Sawridge First Nation near Slave Lake, Alberta, part of the Cree Nation.

She was adopted at birth into a non aboriginal family. Ostrowski describes himself as being part of the “urban native” community. His personal background includes deprivations all too common to many aboriginal persons – poverty, unemployment, drug and alcohol abuse, lack of education, displacement from community, lack of identity and dignity. He has more recently made an effort to become more connected to his aboriginal roots, particularly through his maternal grandmother.

[14] While in custody, Ostrowski has successfully completed all the courses available to him at Surrey Pretrial Center. He hasconcentrated on conquering his serious drug and alcohol addiction. The drug and alcohol counsellor at Surrey Pretrial has noted thatOstrowski has begun to assist other inmates with their addiction problems by starting a recovery group among the inmates on his unit. [15] Although Ostrowski did not exhibit any remorse at the trial, it appears that his time in custody has given him an opportunity toreflect upon the seriousness of the harm that he caused. He has written an apology to Mr.

Martinez’s estranged spouse and two children.At the completion of submissions at the sentencing proceedings, he apologized to the Court for lying and expressed remorse for hiscrimes. He indicated that he has gained significant insight into the serious problems that he has with alcohol and drugs and is motivatedto overcome them. Victim Impact [16] I did not hear from any members of Mr. Martinez’s family. His parents do not live in Canada. At the time of his death, Mr.Martinez was separated from his spouse and two children who live in Alberta. They did not file Victim Impact Statements.

Nonetheless, Ican infer that his death caused them great sorrow. Martinez’s fiancé filed a Victim Impact Statement. On the night of the collision, shewas expecting him to meet her after she got off work, to escort her home. She worked at BC Ferries. Of course, Mr. Martinez never madeit to their meeting place. She was devastated by her fiancé’s death. [17] As well, Mr.

Arora, the driver of the Nissan SUV which struck the Honda, described the anguish that he has gone throughhaving witnessed the terrible aftermath of the accident and having to live with the knowledge that he was part of an accident where aman died, even though Mr. Arora could have done nothing to prevent it. Sentencing Considerations [18] The crimes which the accused has committed are among the most serious in the Criminal Code.

The maximum sentence forimpaired operation of a motor vehicle causing death is life imprisonment, as is the offence of being a driver who fails to remain at thescene of an accident knowing that a person suffered bodily harm. The offence of dangerous operation of a motor vehicle causing death ispunishable by a maximum penalty of 14 years in prison.

The courts have consistently held that, in most circumstances, the sentence forthe “failing to remain” charge should be made consecutive to the sentences imposed on the driving offences. [19] There is no doubt that the most important goal in sentencing offenders for these very serious offences is denunciation anddeterrence. That has been the message from all levels of court in Canada for at least the last 25 years. But, all sentencings are anindividualized process.

The judge must apply general legal principles to the particular circumstances of the case and the particularcircumstances of the offender. [20] The cases cited to me by both counsel all illustrate the fact that courts almost invariably impose a prison sentence in caseswhere a drunk driver has caused another person’s death.

The range of those prison sentences is quite broad, reflecting every court’sobligation to adjust each sentence to individual circumstances and to assess and balance the relative significance of the various goals andprinciples of sentencing. [21] In some of the cases cited by the Crown, judges have remarked that in recent years sentences for such offences have been“trending up” because there is a need to provide a significant response to the continuing problem of deaths caused by drinking drivers. R.v. Sater 2014 BCSC at para 77; R. v. Boukchev (ON CA), 177 OAC 119 at para 62; R. v.

Junkert 2010 ONCA 549 at paragraph 49. [22] However, given the sheer number of sentencings for similar cases in Canada over the last 25 years, it may be difficult toidentify a discernible increase in those sentences. Over that time, appellate courts across Canada have continually supported theimposition of deterrent and denunciatory sentences. [23] A useful example can be found in four cases decided by the British Columbia Court of Appeal in 1992: R. v. Sweeney ; R. v. McNeill ; R. v. Grezenda ; R. v. Lunn . [24] A five judge panel of the Court of Appeal sat to consider the sentence appeals in these four cases.

They all concerned accusedwho had been convicted of criminal negligence or impaired driving causing death. In each case, the accused’s ability to drive wasimpaired by alcohol. The court’s decisions in these cases illustrated the approach that trial courts should take in sentencing offenderswho have committed offences such as the one at bar.

Trial courts in British Columbia have been following this approach to sentencingever since. [25] The two main points made by the Court of Appeal were that general deterrence and denunciation were the primary factors to beconsidered by the sentencing judge, in the context of the offender’s level of moral culpability in the circumstances of the particular case.Thus, the court upheld an eight year prison sentence for Lunn; reduced an eight year sentence for Grezenda to four years; reduced a fiveyear sentence for McNeill to 18 months and reduced a four and a half year sentence for Sweeney to 18 months. [26] The important conclusion to be drawn from those decisions was that a court must take into account varying circumstances ofeach accused.

Some offenders, such as Lunn, need to be separated from society for a significant period of time. This may be because theoffender has previous convictions for drinking and driving or the circumstances are particularly egregious or both. Other offenders suchas Gezenda do not necessarily need to be separated from society for a lengthy time, but their personal circumstances and/or thecircumstances of the offence require that a significant penitentiary sentence be imposed.

Other offenders such as McNeill and Sweeney donot need to be imprisoned for as long as offenders like Lunn or Grezenda because there are certain mitigating factors such as lack ofrecord and relative youth. Deterrence and Denunciation [27] The Court of Appeal in these decisions was responding to submissions that sentencings for drinking drivers who cause death

had not been adequate. Ever since, trial courts have for the most part heeded the Court of Appeal’s direction. And when courts have not done so, the Court of Appeal has corrected them. (See, for example, R. v. Smith 2013 BCCA 173 . In that case, the Court of Appeal granted the Crown’s appeal of a sentence of one day in prison and three years probation for a conviction for impaired driving causing death.

The Court substituted a sentence of two years less a day in prison.) Has This Approach Had Any Effect ? [ 28 ] Over the last 20 years, there has been a dramatic reduction throughout Canada in the number of deaths resulting from automobile crashes caused by drinking drivers. It is doubtful, however, that this occurred solely or even mainly because of sentences imposed by courts. [ 29 ] This dramatic reduction in fatal collisions could only have occurred through concentrated efforts from a wide variety of sources.

Thus, for example, motor vehicles are better made; roads are better designed; better built and maintained; more people wear seatbelts; drivers are better trained; Provincial Motor Vehicle Departments supervise drivers more strictly; police enforce traffic laws more strictly. [ 30 ] As well, it has become socially unacceptable for anyone to drive under the influence of alcohol. ICBC, the Motor vehicle Branch, the police, and public interest groups maintain a steady publicity campaign emphasizing the dangers of drinking and driving.

Not only do the police put up roadblocks at times other than at Christmas; the Province has instituted an administrative driving prohibition regime, which imposes swift and harsh penalties for drivers whose blood-alcohol level exceeds the legal limit. Few of those cases end up in court. Reducing Drunk Driving Deaths [ 31 ] The total number of deaths from motor vehicle accidents has declined in Canada quite dramatically. In 1995, there were 3,338 such deaths in Canada. In 2010, the total dropped to 2,211. In 1995, 1,296, or 38.9% of those deaths were caused by drinking drivers.

In 2010, the total fell to 744, or 33.6%. [ 32 ] In British Columbia, there has been an even more dramatic decline. In 1995, there were 506 total deaths from motor vehicle crashes in British Columbia. 241 of those, or 47.6%, were caused by drinking drivers. In 2010, there were 370 deaths on the road in BC. 120 of them, or 32.7%, were caused by drinking drivers. [ 33 ] More recent statistics from BC have shown even further reductions.

In 2013, there were 285 deaths resulting from motor vehicle crashes. 63 of those, or 23.7%, involved drivers under the influence of alcohol and/or drugs. (I obtained these statistics from two sources:

(1) Alcohol – Crash Problem in Canada: 2010 prepared by the Traffic Injury Research Foundation of Canada in March 2013 and (2) the report by Road Safety BC entitled Motor Vehicle Related Fatalities 5 year Statistics for British Columbia 2009 – 2013.) [ 34 ] I do not suggest that the problem has been solved, or that we should declare victory over this very serious problem. It is entirely reasonable to expect that there should be no deaths caused by impaired drivers, even in circumstances where it is the impaired driver himself who gets killed.

My point here is that courts are not dealing with a problem that is increasing in scope and that harsher sentences need be imposed as a result. [ 35 ] It is simply not possible to say what portion of the credit for reducing the death toll on the roads caused by impaired drivers can be attributed to sentences imposed by the courts. A very important function of the courts in sentencing is to articulate society’s revulsion for and rejection of criminal acts which take others’ lives. Most often this takes the form of a significant prison sentence.

In theory at least, such sentences will also serve as a deterrent to others who might commit similar offences. As the public face of the justice system, courts must continue to send a consistent message. Failing to Remain at Accident Scene [ 36 ] The offence of failing to remain at the scene of a collision, knowing that someone has suffered bodily harm, is also a very serious crime. This is particularly so when the driver flees the scene to avoid being prosecuted for a criminal offence, such as dangerous or impaired operation of a motor vehicle.

Where there has been a serious injury, it is unlikely that the driver will be capable of offering any medical assistance. The driver’s duty is straightforward. He must identify himself to the authorities and he must not interfere with their investigation of the incident. This investigation may include making observations of his condition to determine whether to seek blood or breath samples. The driver has all the protections of the Charter , and need not incriminate himself. But, failing to remain at the scene can seriously obstruct the course of a police investigation of a serious crime.

Discussion [ 37 ] Ostrowski has a high level of moral culpability in this case. The circumstances of the collision are egregious. Ostrowski deliberately drove into a busy intersection on a red light, while he was intoxicated. Even though he must have known that his passenger was severely injured, he callously abandoned him and fled the scene. It was only through the work of some alert police officers that he was located.

Otherwise, he may have escaped completely and made the investigation of the collision and his friend’s death even more difficult. [ 38 ] There are several aggravating circumstances which indicate that the offender has shown a tendency to disregard the law. Ostrowski was prohibited from driving at the time of the collision and had been issued driving prohibitions in the past. He has been convicted of driving while prohibited. He does not have a drivers licence. He has a prior conviction for impaired driving. He has struggled with drug and alcohol abuse since his teens and therefore represents a danger to reoffend.

The danger of reoffending is further increased by the psychiatrist’s diagnosis of Ostrowski as suffering from Antisocial Personality Disorder. [ 39 ] I do not regard Ostrowski’s uncooperative attitude towards the police during the investigation, or his questionable testimony at the trial, as aggravating factors. That conduct merely confirms that he is guilty of the offences of which he has been convicted.

[ 40 ] I accept that Ostrowski regrets that his friend was killed. Initially, he did not display a great deal of remorse, but it appears that he has come to understand the gravity of the crimes that he committed. That is, I believe that he is now genuinely remorseful. Mitigating Factors [ 41 ] There are some positive circumstances in the offender’s life. While he has struggled to maintain permanent employment, Ostrowski has shown the ability to obtain and maintain employment for extended periods of time.

He has the support of his family, including his mother and sister, who will continue to give him support and encouragement. He expresses an intention to try to deal seriously with his drug and alcohol problem. He has demonstrated this determination by his efforts at Surrey Pretrial. [ 42 ] Ostrowski is a relatively young man. He was 26 when he committed these offences. However, I do not consider his relative youth as a mitigating factor. The circumstances are completely different from those accused in some of the cases cited to me on his behalf.

They were young persons between the ages of 18 and 21; they had no criminal records and their actions could in some ways be described as youthful indiscretions. On the other hand, Ostrowski had already been convicted of impaired driving, as well as of driving while prohibited. He had previous criminal convictions by the time these offences occurred. Ostrowski had more than sufficient life experience to be expected to control his behaviour. [ 43 ] I must take Ostrowski’s aboriginal status into account.

He has suffered some of the unfortunate circumstances which aboriginal people often encounter – alcoholism; difficulties in education and employment; lack of connection with his native roots and community; lack of direction in life. [ 44 ] As the Supreme Court of Canada confirmed in R. v. Gladue , [1998] S.C.J. No. 19 , there are too many aboriginal persons in prison in Canada. The courts must strive as much as possible to find alternative means of sentencing for aboriginal persons other than incarceration.

However, the Supreme Court also recognized that in circumstances where the crime is particularly serious and the objectives of denunciation and deterrence are particularly pressing, an offender’s aboriginal status will take on a lower significance in any such sentencing. In my view, that qualification applies to the case at bar. Sentence [ 45 ] The sentences for these crimes must focus on denunciation and deterrence. Ostrowski’s prior record, his drug and alcohol addiction and his psychiatric profile, all suggest that he is a high risk to re-offend.

These circumstances are mitigated somewhat by Ostrowski finally taking responsibility for his offences and apparently serious efforts to reform, particularly to deal with his drug/alcohol problem. If it were not for these recent signs of progress, I would have found it necessary to impose a sentence at the higher end of the range to isolate or separate him from society. There is still some hope that he can change.

Nevertheless, a significant deterrent sentence is still necessary. [ 46 ] For the offences of impaired operation of a motor vehicle causing death and dangerous operation of a motor vehicle causing death – counts 1 and 3 – I find that a fit sentence would be 4½ years in prison, concurrent to each other. A fit sentence for the offence of failing to remain at the scene of an accident would be18 months consecutive to counts 1 and 3. That amounts to a total sentence of 6 years.

Considering the totality of the sentence, I find that it is neither harsh nor excessive in the circumstances of this case and this offender. [ 47 ] The offender will be given credit for having served one year in custody. The total sentence that I impose, therefore, is five years. Pursuant to section 259(2) of the Criminal Code , I prohibit Ostrowski from driving on any street, road, highway, or other public place in Canada for eight years. This applies to all three counts on the Information. I add to that, the period of time to which he has been sentenced to prison, making the total prohibition 13 years.

The point is that the prohibition does not start to operate until his prison term has expired. [ 48 ] I order that DNA samples may be taken from the accused pursuant to

section 487.051 of the Criminal Code on all counts in the Information. (These are all primary designated offences.) I also order, pursuant to s.743.2 of the Criminal Code , that these Reasons for Sentence, the Pre-sentence Report, the Psychiatric Report and the Victim Impact Statements, all be forwarded to the Correctional Service of Canada. [ 49 ] I make the requirement that the offender pay victim fine surcharges. The Honourable Judge P. D. Gulbransen Provincial Court of British Columbia Cases Cited by the Crown 1. R. v. Johnson , [1996] B.C.J. No. 2608

2. R. v. J. A. W., [2006] B.C.J. No. 1112 3. R. v. Sater, 2014 BCSC 1036 , [2014] B.C.J. No. 1149 4. R. v. Boukchev, (ON CA), [2003] O.J. No. 3944 5. R. v. Prasad, 2006 BCCA 470 , [2006] B.C.J. No. 2782 6. R. v. Junkert, 2010 ONCA 549 , [2010] O.J. No. 3387 7. R. v. Gill, [2010] B.C.J. No. 1691 8. R. v. McVeigh, (ON CA), [1985] O. J. No. 207 9. R. v. Biancofiore, (ON CA), [1997] O.J. No. 3865 10. R. v. Larocque, [1988] O.J. No. 330 11. R. v. Rhyason, 2007 ABCA 119 , [2007] A.J. No. 372 Cases Cited by Defence 1. R. v. Gladue, (SCC), [1999] S.C.J. No. 19 2. R. v. Smith, [2013] B.C.J., No. 745 3. R. v.

Charles, [2011] B.C.J. No. 526 4. R. v. Matheson, [2011] B.C.J. No. 434 5. R. v. Livingston, [2013] B.C.J. No. 2206 6. R. v. Wengenmayr, [2013] B.C.J. No. 730 7. R. v. Danyliuk, [2010] B.C.J. No. 2817 8. R. v. Warren, [2012] B.C.J. No. 2815 9. R. v. Cooke, [2013] B.C.J. No. 2712