R. v. Kinakin, 2022 BCPC 87

Citation: R. v. Kinakin 2022 BCPC 87 Date: 20220517 File No: 22456 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JUDITH ANNE KINAKIN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T. GOUGE Counsel for the Crown: P. Cheeseman Counsel for the Defendant: T. Morino Place of Hearing: Colwood , B.C. Date of Hearing: March 31, 2022 Date of Judgment: May 17, 2022 The Issue [ 1 ] Ms. Kinakin has entered a guilty plea to a single count of driving in a manner dangerous to the public causing bodily harm, contrary to

section 320.13(2) of the Criminal Code . It is my task to sentence her for that offence. Mr. Cheeseman, for the Crown, seeks

a jail sentence of 9 to12 months, a term of one year’s probation and an 18-month driving prohibition. Mr. Morino, for Ms. Kinakin,submits that a conditional sentence order, followed by probation and a lengthy driving prohibition would be appropriate. The Offence [2] At about 5:45 p.m. on January 8, 2020, Mr. Elsing was riding his bicycle in a westerly direction in the right lane of Sooke Road,near Victoria, British Columbia. Ms. Carlson was overtaking him in her vehicle in the left lane. Ms. Kinakin was following Ms. Carlsonin the left lane, going faster than Ms. Carlson. Ms.

Carlson was travelling at about the same speed as other vehicles in the line of trafficand had not applied her brakes. Ms. Kinakin’s vehicle struck the rear bumper of Ms. Carlson’s vehicle, inflicting serious damage to bothvehicles. Ms. Kinakin’s vehicle then passed Ms. Carlson’s vehicle on the right and swerved to the left across the centre line into the pathof eastbound traffic. It then swerved to the right across both westbound lanes and struck Mr. Elsing on his bicycle.

He was thrown tothe ground by the impact and suffered road rash, a concussion and whiplash, the symptoms of which were not fully resolved until a yearlater. [3] Ms. Kinakin was arrested and taken to an RCMP detachment, where she was examined by a drug recognition expert, whoformed the opinion that she was impaired by a central nervous system depressant and a narcotic analgesic. A urine sample was takenfrom Ms. Kinakin, which tested positive for fentanyl, morphine, hydromorphine, codeine, methadone, oxazepam, methamphetamine,amphetamine and benzoylecgonine.

It is important to note that she may not have consumed all of those drugs, because some of them aremetabolites of others. The laboratory report includes the following passage: The presence of drugs and/or drug metabolites in the urine merely confirms prior drug use.

No direct inference can be made with respectto a degree of impairment or the time of drug use based on these findings alone. [4] However, the opinion of the drug recognition expert is admissible independently of the laboratory results, and is a “… reliablemethod of determining whether a person’s ability to operate a conveyance is impaired by a drug …”: Criminal Code,

section 320.12(d). I conclude that Ms. Kinakin’s ability to drive was impaired by a drug at the time in question. The Offender [5] Ms. Kinakin is 50 years of age. She suffered from a very unhappy childhood, marked by physical, emotional and sexual abuse.

She has no criminal record. [6] Her driving record begins with a speeding ticket in August, 1988, and comprises 28 speeding tickets, one ticket for speeding in aschool zone, one ticket for speeding in a playground zone, one conviction for opening a vehicle door when it was unsafe to do so, sevenconvictions for driving without a valid driver’s license, one conviction for failing to yield the right-of-way to an emergency vehicle, andone for failing to wear a seat belt. It is important to note that she received speeding tickets on July 27, 2020 and March 1, 2021, after theincident in question. [7] Ms.

Kinakin has worked as a dental technician and accounts manager in a dental office. Her former employer speaks veryhighly of her personal and professional qualities. She suffers from rheumatoid arthritis, and is presently in receipt of disability benefits. She also suffers from the sequelae of a back injury, and became addicted to opiates which were prescribed to manage the pain resultingfrom that injury. The Sentence Prescribed by the Statute [8]

Section 320.13(2) of the Criminal Code creates a hybrid offence – the Crown may proceed summarily or by indictment. Thepenalty for the offence is prescribed by

section 320.2. For a first offence, the minimum penalty is a $1,000 fine. The sentence may alsoinclude imprisonment for: (

i) not more than 14 years if the Crown proceeds by indictment; or (ii) not more than 2 years less a day if theCrown proceeds summarily. [9] In this case, the Crown chose to proceed summarily. However, “… the election of the Crown as to how to proceed does notmake a meaningful difference to the sentence provided the sentence is within the limits established by Parliament …”: Butler v. TheQueen, 2019 NLCA 21 , 2019 N.L.C.A. 21; [2019] N.J. No. 123 @ paragraph 60, citing R. v. Solowan, 2008 SCC 62 ,[2008] 3 S.C.R. 309 @ paragraphs 15 – 16. [10]

Section 320.24(5)(

c) of the Criminal Code also empowers the court to impose a driving prohibition for a period of “… not morethan three years, plus the entire period to which the offender is sentenced to imprisonment …”. Range of Sentences For This Offence [11] Mr. Morino provided me with some information which he obtained from a website called “Rangefindr”, with which I am notfamiliar. It purports to summarize 211 decisions of Canadian courts, imposing sentences for offences under

section 320.13(2) of theCriminal Code, and reports: a. one conditional discharge; b. 30 conditional sentence orders; c. 15 jail sentences in the range of 0 – 5 months imprisonment, 30 in the range of 6 -11 months, 25 in the range of 12 – 17 months, 27 inthe range of 18 -23 months, 33 in the range of 2 – 3 years, 10 in the range of 4 – 5 years, 5 in the range of 6 – 7 years, 3 in the range of 8– 10 years and one in excess of 10 years. [12] Assuming these to be accurate statistics, they are of assistance in giving effect to

section 718.2(

b) of the Criminal Code, whichprovides that “… a sentence should be similar to sentences imposed on other similar offenders for similar offences committed in similar

circumstances …”. I am mindful of the references to “similar” offenders, offences and circumstances, and of the fact that every offenderand offence possesses unique qualities. However, I think that the information provided by “Rangefindr” can provide a useful realitycheck in many cases. Mr. Cheeseman did not object to the use of “Rangefindr” data, and did not question its accuracy. [13] The “Rangefindr” data indicate that jail sentences are imposed on more than 85% of offenders who are convicted of an offenceunder

section 320.12(2) of the Criminal Code, and that jail sentences in excess of one year are imposed on more than 60% of suchoffenders. Sentencing in This Case [14] Ms. Kinakin entered a guilty plea at an early stage of the proceeding. That is a mitigating factor. [15] I do not think that I may take into account, as mitigating factors, her unfortunate personal history or her opiate addiction, becausethere is no “… detailed and specific medical evidence …” of a connection between those factors and her offending behaviour: R. v.Merkel, 2021 BCCA 445 , 2021 B.C.C.A. 445; [2021] B.C.J.

No. 2548 @ paragraphs 52 – 53. [16] Her driving record is a very serious aggravating factor, compounded by the two speeding tickets issued to her after the event inquestion. Put bluntly, she drives too fast, is a public danger in consequence, and seems to have learned nothing from the tragic event inissue in this case. [17] Her ability to drive was impaired by drugs in her body at the time of the event.

That is a serious aggravating factor. [18] Taking all of that into account, I conclude that a fit sentence would be: a. the mandatory $1000 fine, b. six months jail; c. a driving prohibition, to be in effect throughout the time that she is in custody; d. a three-year driving prohibition, to commence on the day that she is released from custody. [19] I would have imposed also a term of probation, to assist in her rehabilitation after her release from custody.

However, counselare agreed that a probation order may not be made where the sentence includes both a fine and a term of imprisonment: Criminal Code,section 731. _______________________________ T. Gouge Provincial Court Judge