R. v. N.D.K. Date:, 2017 BCPC 82

Citation: R. v. N.D.K. Date: 20170315 2017 BCPC 82 File No: 20028-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Youth REGINA v. N.D.K. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K. ARTHUR-LEUNG Counsel for the Crown: R. Sewani

Counsel for the Defendant: E. dos Santos Place of Hearing: Surrey , B.C. Date of Hearing: March 15, 2017 Date of Judgment: March 15, 2017 [ 1 ] The accused, N.D.K., being a young person within the meaning of the Youth Justice Act , has entered a guilty plea to admitting that on September 30, 2015, in Surrey, British Columbia, did drive a motor vehicle on a highway, namely, [omitted for publication] Avenue, without due care and attention, contrary to Section 144(1)(

a) of the Motor Vehicle Act , RSBC 1996. [ 2 ] The facts are such that the accused was driving the family minivan transporting his two siblings and while operating the vehicle was wearing flip-flops. At the time of the offence, the accused had his Novice or New Driver’s designation and not his full driver’s licence. While operating the vehicle, one of the flip flops on the feet of the accused came off. The accused momentarily looked away from his windshield and upon looking back up, hit one of two workers on [omitted for publication] Avenue, who were in the course of their duties.

The accused immediately stopped, called 911, remained at the scene and cooperated with the police throughout. As a result of the impact, one of the two workers was tossed into the air and injured his head upon impact. The victim impact statement to this Court indicates that this victim had to be air lifted to Royal Columbian Hospital; he suffered three compound fractures to his right leg, a torn tendon, a brain trauma including suffering a seizure on the scene, and thereafter anxiety, depression and a concussion.

As a result of the extensive physical injuries sustained, this victim is no longer able to do the job in which he was trained to do, nor any labour-intensive jobs. He has daily pain, he is unable to participate in his love of sports, and has permanent loss of full movement to one ankle. The second victim was hit by a piece of equipment that was hit by the mini-van operated by the accused, and suffered scrapes and sundry minor injuries. [ 3 ] This is a joint submission.

Both Crown and Defence submit that the accused and his family have been cooperative with the police, that this was a momentary lapse in judgment both in the choice of footwear and the distraction, that the accused is remorseful, and that the accused has no criminal nor driver’s extract. In addition, this is a guilty plea. The accused is a young person who is currently attending the University of Victoria. When asked, the young person did not have any additional information to provide to the court nor a verbal apology.

However, I will note that this is a guilty plea. [ 4 ] Defence counsel did not produce any case law to guide this court, however, Crown counsel is relying upon Regina v. Chisholm , [2009] B.C.J. No. 127 , which was a sentence imposed by the Honourable Judge Woods for a driver convicted of undue care and attention, noting that in Chisholm , the driver looked down to adjust something on the dashboard and when he looked up again he rear- ended a taxi with a propane tank, which exploded and killed the taxi driver and burned a passenger in the taxi.

The Court imposed a fine of $1,300.00 and no driving prohibition was imposed by the Court.

Section 144 of the Motor Vehicle Act , RSBC 1996, requires that every operator must operate a motor vehicle with due care and attention. In the matter before me, the accused made a poor choice in believing that flip flops are safe and reasonable footwear of choice in operating a motor vehicle. Clearly they are not.

In addition, when the poor choice of footwear came off of one foot of the accused, rather than stop his vehicle, he looked down while still operating the vehicle in motion with his two siblings in the vehicle. [ 5 ] I am mindful that this is a plea under the Motor Vehicle Act and is not a criminal offence under the Criminal Code of Canada . In considering the Chisholm decision, I concur with the words of the Honourable Judge Woods that the actions of the accused in the matter both in Chisholm and the matter before me is “simple negligence”. As set out in Regina v.

Pellow , 2006 BCPC 124 , the then Honourable Judge Stansfield correctly defined the action at paragraph 10 as the accused “…for being negligent by failing to exercise the care and attention that was due of him on the date and in the circumstances in question.” The poor decisions made by the accused in the matter before me had life altering consequences particularly for one victim. This is a motor vehicle offence, and therefore the moral blameworthiness of the accused is less than that of a Criminal Code of Canada offence.

The then Honourable Judge Buller Bennett correctly summarized the consideration that the Court must make at paragraph 9 of her decision in Regina v. Pekrul , wherein she stated: I must impose a sentence that will deter….from committing this sort of offence. Also I must consider…. rehabilitation, and protection of the public. To a lesser extent, the sentence must have an element of denunciation…Deterring others from having momentary lapses of attention is… a strong consideration as there is a high standard of safety required of all drivers at all times.

In both the Chisholm and Pekrul decisions, the accused persons being sentenced were adult; however, in the matter before me, the accused appears as a young person.

That puts this Court in a precarious sentencing position to be mindful of the mitigating factors and that this is a young person who appears before this Court; however, I am also mindful that there is a reason why this Province legislated both Learner’s and Novice or New driving designations, and despite young people believing that they are invincible and that it will never happen to them, indeed, tragic circumstances do occur, and they occur due to bad judgments and decisions that often result from young people not thinking through their decisions. The matter before me is this very situation.

The poor decision of the wearing of flip flops, and the choice not to stop a vehicle but look elsewhere while a vehicle is in motion in a construction zone, both singularly and collectively resulted in a tragic event. Young people, including this accused, must be mindful that there is a reason why there is a graduated licencing programme in this Province and in many other parts of Canada. It is a privilege to have a driver’s licence and not a right.

The case law before me determines the range of fine to be between $1,000.00 and $2,000.00, and the issue of the driving prohibition to be left to the Superintendent of Motor Vehicles. In the matter before me, this is a joint submission of a $750.00 fine, considering this young man is a youth. I will say that I am loathe to accept this submission and do find it light, and I am candidly struggling to accept this joint submission. Two persons were injured, one with life altering injuries that were sustained when that victim was only 19 years of age.

As this is a joint submission, and I am mindful that the Courts are loathe to deviate from a joint submission, and not being privy to how and why this was agreed upon, I will impose a $750.00 fine upon the accused. I do, however, reject that there be a one year period to pay the fine. Both the $750.00 fine and the victim surcharge must be paid in full no later than September 14, 2017. I will not impose a driving prohibition as I am confident that as this offence will have a mandatory imposition of a significant

number of points against the licence of the accused, and being that he is a Novice Driver, that the Superintendent of Motor Vehicles will be proceeding in a regulatory manner to make a decision that the Superintendent of Motor Vehicles deems fit. The Honourable Judge K. Arthur-Leung Provincial Court of British Columbia