R. v. Pelland Date:, 2015 BCPC 394

Citation: R. v. Pelland Date: 20151202 2015 BCPC 0394 File No: 20476-2-C Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JAMEY EDWARD PELLAND REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M.J. BRECKNELL Counsel for the Crown: M.L. Ahrens Counsel for the Defendant: B. Gilson, Q.C. Place of Hearing: Prince George , B.C. Date of Hearing: December 2, 2015 Date of Judgment: December 2, 2015 [ 1 ] Jamey Edward Pelland comes before the Court having pled guilty on Information 40276-C-2, to two counts, namely Count

number 2, a charge commonly referred to as impaired operation of a motor vehicle, and Count 6, a charge of operating a motor vehicle in a manner dangerous to the public while being pursued by a peace officer and thereby causing bodily harm to one Jason Parlby. [ 2 ] These events occurred on August the 11th, 2013, some two years and four months ago. There is no suggestion that since that date, Mr.

Pelland has come to the attention of the authorities in any way with regard to any further charges. [ 3 ] The events of August the 11th, 2013, are somewhat unusual and I thank counsel for putting together an agreed statement of facts, which saves a lot of back and forth as to what occurred. On that date Mr. Pelland was operating an UTV, what is called a utility terrain vehicle or a side-by-side. He and his friend, Mr. Parlby, were driving around in this thing and at some point they crossed the highway.

The vehicle was not licensed to be operated on the street or highway and when they did so, they came to the attention of the police. Constable Starr was driving a marked police car and he turned on his lights and siren but the vehicle did not stop and he pursued the vehicle. [ 4 ] Now, the UTV is not a high performance vehicle, top speed may be 50 kilometres an hour, and so Constable Starr was able to catch up to it fairly easily.

What has been agreed to is Constable Starr had a concern that this vehicle, this UTV driving down Northwood Pulp Road, which I believe I can take judicial notice is a major thoroughfare in the community during shift changes at the pulp mill and a shift change was about to occur. [ 5 ] He is driving down this road, following the UTV. He takes what I believe to be, on the face of it, a reasonable and prudent decision to try to get past the UTV and thereby cause it to cease evading him so that people coming from the pulp mill or indeed going to the pulp mill for the shift change would not be in jeopardy.

In performing that maneuver, something occurred. It is not the place of this Court to determine what it was that actually occurred, but the two vehicles came in contact with each other. Mr. Pelland lost control of the UTV and it went off the road. He and Mr. Parlby were ejected because, in part, they were not wearing their seatbelts. Mr. Parlby suffered some rather severe injuries of which he is recovering from, but he has a disability that no doubt will persist for some time, of an incomplete paraplegic situation involving his left arm and shoulder. [ 6 ] MS. AHRENS: Excuse me, Your Honour.

I must make it clear, the incomplete paraplegia is of the lower body -- [ 7 ] THE COURT: Oh. [ 8 ] MS. AHRENS: -- and he suffers in addition a brachial plexus injury which involves his left arm and shoulder. [ 9 ] THE COURT: Okay. Thank you. It did not appear that clear from the statement but okay, thank you very much. [ 10 ] What complicates this situation even further is that during this driving around in the UTV, Mr. Pelland and Mr. Parlby were enjoying a few alcoholic beverages. Mr.

Pelland's blood alcohol content was estimated back to the time of the collision by a forensic analyst and everybody agrees that his level of intoxication was somewhere either around or perhaps even slightly below the legal limit of 80 milligram percent alcohol or .08 as most people refer to it. [ 11 ] However, one can be impaired, as the law understands it, without reaching the .08 threshold. A charge of impaired driving is different from a charge of driving while over .08. [ 12 ] The Crown and the Defence counsel on this case are both extremely experienced trial counsel.

They have spent considerable time assessing this situation and dealing with the legal underpinnings, both from the point of view of the Criminal Code and the case law. They both agree the case law is rather sparse in this area. Most evading police officer charges are as a result of high speed chases through urban environments.

This was clearly a low speed chase which, at the precise time it was occurring, was not about to directly cause endangerment to citizens but could have at any moment, given the shift change at the pulp mill. [ 13 ] The Crown has provided three cases for the Court's consideration and I have, to be fair to everybody, glanced at them. I could adjourn for a day or two and read them in great depth, but the Crown has pointed me to the salient portions of each of the three cases and Defence counsel agrees that the law set out in those cases is effectively what we should be considering here. Those cases are R. v.

Henderson , 2012 NBCA 9 , R. v. Lommerse , 2013 YKCA 13 and R. v. Fraser , 2014 NSSC 391 . [ 14 ] Those cases and other cases involving the type of offences to which Mr. Pelland has pled guilty make it clear that the court must consider aggravating and mitigating factors of the case at hand. It must also consider the provisions of s. 718 through 718.2 but that the court must keep top of mind as a paramount consideration both denunciation and general deterrence. [ 15 ] The Crown acknowledges that Mr.

Pelland is no doubt specifically deterred from further behaviour of this nature given the catastrophic results on his friend, Mr. Parlby, who remains his friend to this day. I should note that the protection of the public from Mr. Pelland does not require him to be incarcerated for a lengthy period of time.

Protection of the public can be met by prohibiting him from driving, which is what has caused this entire unfortunate situation, and the Crown submits a prohibition of five years would be appropriate. [ 16 ] However, the Crown also points out that general deterrence and denunciation in this circumstance, and based on the case law would suggest, except in rare exceptions, a jail sentence of anywhere from four months upwards to approximately a year.

The Crown acknowledges that there is some special circumstances here and says in their submissions that it is the Crown's belief that the best sentence the Crown can suggest to this Court that would accomplish denunciation and general deterrence but keep in mind the circumstances of the events here is a sentence of 90 days in jail, which the Crown concedes could be served intermittently. [ 17 ] It should be noted that both the Crown and the Defence agree that Mr. Pelland is not asking this Court to give consideration to the decisions of the Supreme Court of Canada in R. v. Gladue and R. v. Ipeelee . Mr.

Pelland has some First Nations heritage in the sense that he can trace a bloodline relationship to people who are First Nations, but he does not and has not participated in any First Nations' cultural activities. He has not pursued anything in that nature and certainly his upbringing would suggest it was without many of the systemic indicia that the court applies in looking at cases based on the Gladue, Ipeelee paradigm.

[ 18 ] There are aggravating factors here. Mr. Parlby was seriously injured. Mr. Pelland has a less than envious driving record which includes two 24-hour prohibitions for alcohol and one conviction for impaired driving some nine years ago. He fled from the situation in this vehicle when he was being pursued by the police.

I would say, on that latter point, it is particularly dangerous to operate a utility vehicle like that, to evade the authorities, because they are in general somewhat open air concept vehicles, they are not designed like a car and they certainly do not handle with the agility of a duly licenced motor vehicle in many respects. [ 19 ] The mitigating factors include that Mr. Pelland is very remorseful and has been throughout. He does not have any real criminal past history. He is not defiant of the criminal justice system. He has got a good work record.

He has an elderly grandmother who raised him who now requires his assistance. He has entered a guilty plea and his impairment was minimal. [ 20 ] I take no note of the fact that Mr. Pelland is or may be facing a civil lawsuit brought by his friend, Mr. Parlby. That lawsuit has not yet been determined; it involves Mr. Parlby, Mr. Pelland, the police officer, the RCMP and I am sure the Government of Canada, and any recompense to Mr. Parlby as a result of his injuries will be dealt with in that forum. [ 21 ] Defence counsel acknowledges that the Crown has been very fair in their dealings with Mr.

Pelland and in their submissions before the Court with regard to a penalty. Effectively Mr. Gilson says there probably has to be a jail sentence here. There probably has to be a prohibition from driving. There probably has to be some community work service attached to a probation order. What would have been the best result would have been a conditional sentence order, but because of the injuries suffered by Mr. Parlby, such an order is not available. A conditional sentence order would have allowed me to place Mr. Pelland in custody but in custody in his own home by way of a house arrest order. [ 22 ] Mr.

Parlby did not want to participate in the proceeding either A, by testifying or B, by filing a victim impact statement, and I can understand there may be reasons for him to take that position, including, as I speculatively commented on, that perhaps he wishes to keep the information he has concerning the accident close to his hand, pending the outcome of the civil case. However, I thought it a bit odd, if Mr. Parlby and Mr. Pelland were such good friends, that Mr.

Parlby would not have forwarded something to the Court to say that he, for example, is forgiving of his friend's actions or that he seeks to have his friend dealt with in a perhaps more lenient fashion than the Crown is suggesting here. [ 23 ] MS. AHRENS: If I may, Your Honour, in fairness, I spoke twice to Mr. Parlby's lawyer and she, that is junior counsel on the civil action, indicated to me that she had checked with Mr. Parlby and he specifically did not wish to participate and it was stated, I can't recall the exact words because this was some months ago. [ 24 ] THE COURT: Mm-hmm. [ 25 ] MS.

AHRENS: It was stated in such terms as to be supportive. It is not simply an absence of information to keep his powder dry. [ 26 ] THE COURT: Very well. In any event, what my task is now, after giving that rather longwinded set of observations and reasons, is to come to a decision. Mr. Pelland, please stand up, sir. [ 27 ] Sir, with regard to the two Counts on the Information that you have pled guilty to, I have considered your circumstances. I have considered the circumstances of the events. I have considered the case law and the statute law.

I have considered your driving record. [ 28 ] With regard to Count 2, the impaired driving Count, Madam Clerk, there will be the following sentence. A fine of $1,200, plus the victim fine surcharge of $360 for a total fine of $1,560. Time to pay that fine, December 1st, 2017. [ 29 ] With regard to Count number 2 as well, Madam Clerk, there will be a two-year driving prohibition under the Criminal Code of Canada . What that means, sir, on that Count is that for the next two years, you are not to be found driving any kind of motorized vehicle on any road or public highway anywhere in Canada.

If you are caught doing so, you will face further criminal charges and if you are successfully convicted of such charges, you can expect the Crown will be asking that you be put to jail. [ 30 ] With regard to Count number 6, which is by my conclusion a far more serious charge in the circumstances. In my view the appropriate penalty would be as follows. A 60-day sentence in jail, to be served intermittently and I will give you the terms of that in a moment, sir.

A period of probation for one year, which I will detail as well in a minute and a concurrent driving prohibition under the Criminal Code of Canada , sir, for a period of four years. Again, what that means, sir, is that for that next four years, you are not to be found driving any kind of motorized vehicle anywhere in Canada on any road or public highway. If you are caught doing so, you are going to face further charges. [ 31 ] With regard to the intermittent sentence, Madam Clerk, you are to serve 60 days' of imprisonment. You must serve this term intermittently. I am open to times, Mr. Gilson. [ 32 ] MR.

GILSON: Seeking a commencement date of January 7th, having discussed this with PGRCC, the Christmas and the New Year holidays. [ 33 ] THE COURT: What time on the Friday, though? [ 34 ] MR. GILSON: It would be Thursday at 5:00 p.m. to Saturday at 5:00 p.m., if I may, for three-day weekends, Your Honour. [ 35 ] THE COURT: That is fine. Is that okay with the Crown? [ 36 ] MS. AHRENS: Yes, Your Honour.

We have discussed that. [ 37 ] THE COURT: So you must serve this term intermittently, from 5:00 p.m. on Thursdays to 5:00 p.m. on Saturdays, on consecutive weeks, starting on January 7, 2016, at the Prince George Regional Correctional Centre in Prince George, British Columbia.

[ 38 ] At all times when you are not in custody on this order and until your jail sentence has been served in full, you will be on probation with certain terms but in fact your probation order is going to last a year, so Madam Clerk, I am just going to fold these terms into the full probation order. [ 39 ] The probation order, sir, will be for one year. It will have the following terms and conditions. [ 40 ] You shall keep the peace and be of good behaviour. You shall appear before the court when you are required to do so by the court.

You shall notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation. [ 41 ] You shall report in person to the probation officer no later than 4:00 p.m. tomorrow, December 3, 2015, at the probation officer's office located at 101, 250 George Street, Prince George, British Columbia, and after that you shall report as and when directed by the probation officer. [ 42 ] After first reporting to the probation officer, further reporting may include reporting by telephone at the discretion of the probation officer. [ 43 ] The probation officer, in his or her discretion may excuse you from further reporting under this order upon satisfactory completion of your community work service. [ 44 ] When first reporting to the probation officer, you shall inform him or her of your present residential address and phone number and you shall not change your address or phone number at any time without first providing written notice to the probation officer. [ 45 ] Under the direction and supervision of the probation officer, you shall successfully complete 50 hours of community work, which should be performed at a rate of no fewer than five hours per month.

You can do it faster if you want, sir, get it over with, then you do not -- probably will not have to report anymore. [ 46 ] THE ACCUSED: Mm-hmm. [ 47 ] THE COURT: Then, Madam Clerk, let me go back to what is in the intermittent order. On each occasion when a part of the intermittent sentence is to be served, you shall arrive at the place where the sentence is to be served on time and in an entirely sober condition and not under the influence of any controlled substance within the meaning of the Controlled Drugs and Substances Act . That is a very important term, Mr. Pelland.

If you are supposed to be there at five o'clock on Thursday, I would suggest you be there at quarter to 5:00 because if you show up at 10 minutes after 5:00, they will not take you. You will be charged with being unlawfully at large. [ 48 ] I urge people who are serving an intermittent sentence, if you like to have a drink, I would not drink any later than Wednesday, because if they smell anything on you that smells like alcohol, they will not take you. If they think that your eyes are too dilated, they will not take you. [ 49 ] MR.

GILSON: He hasn't drank in two years, Your Honour. [ 50 ] THE COURT: Well, that is fine. [ 51 ] MR. GILSON: Thank you. [ 52 ] THE COURT: So show up absolutely sober. Time to pay the victim fine surcharge in Count number 6, Madam Clerk will be, let us say, June 30th, 2016. [ 53 ] MS. AHRENS: And the fine, Your Honour, is that time to pay? [ 54 ] THE COURT: Well, the fine I said December 1st, 2017. [ 55 ] MS. AHRENS: Thank you. (REASONS FOR SENTENCE CONCLUDED)