R. v. Gordon 2017 BCPC 56 File No, 2017 BCPC 56

Citation: Date: 20170207 R. v. Gordon 2017 BCPC 56 File No: 243868-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SHIRLEY GORDON REASONS FOR SENTENCE EXCERPTS FROM PROCEEDINGS OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: M. Donnelly Appearing on her own behalf: S. Gordon Place of Hearing: Vancouver, B.C. Date of Hearing: February 7, 2017

Date of Judgment: February 7, 2017 INTRODUCTION [ 1 ] THE COURT: This court is tasked with identifying a fit and appropriate sentence in the circumstances where a moment of inattention tragically resulted in the loss of a cherished young woman. CIRCUMSTANCES [ 2 ] On July 28th, 2016, Ms. Gordon parked a 2004 Ford Explorer in the 1600 block of Duranleau Street in the City of Vancouver. The 1600 block of Duranleau Street is located on Granville Island which is a large market area and a frequent tourist destination. As such, the location is usually busy with pedestrian, vehicle, and bike traffic.

July 28th, 2016, was no exception. It was a sunny day. It was part of a long weekend and, as typical, there was a significant amount of traffic. [ 3 ] As for Ms. Gordon's actions, she was the driver of a vehicle and had driven to the area for the purposes of dropping and picking up items that were related to her work. At one stage, Ms. Gordon was sitting in the vehicle that she was operating. The transmission selector was in reverse and she had the vehicle stationary. [ 4 ] A decision was made that a fellow employee, Ms. Erickson [phonetic], would bring some bins to Ms. Gordon's vehicle. Ms.

Erickson entered into a nearby building and returned with the bins. She then went to the rear of Ms. Gordon's vehicle. Ms. Erickson heard a pop which indicated to her that the rear hatch had been activated and opened by Ms. Gordon. Ms. Gordon then started to step out of the vehicle and, as she did so, the vehicle started to roll backwards. Given that the front wheels of the vehicle were turned, as the vehicle rolled backwards, it arced. As it arced, it arced so that the front portion of the vehicle was swinging towards Ms. Gordon. The movement of the vehicle and Ms.

Gordon's position resulted in her being trapped in the area between the door and the driver's area. [ 5 ] Noticing that the vehicle was moving, Ms. Erickson banged on the vehicle and shouted a warning. Thereafter, the vehicle went from a slow roll to a faster roll to a high rate of speed. At the same time, witnesses reported hearing the engine race. As the vehicle raced backwards, pedestrians ran out of the way. Sadly, Ms. Castillo Rojas was unable to get out of the pathway of the speeding vehicle.

As such, she was knocked down and dragged by the vehicle. [ 6 ] The vehicle eventually came to a stop after crashing into a nearby building. Ms. Castillo Rojas was trapped underneath the vehicle. She suffered catastrophic injuries and did not survive. She was 23 years of age. Another young woman who was in the area also some suffered some minor injuries. Ms. Gordon also suffered some injuries. In this regard, she suffered bruising to her right side and injury to her shoulder. [ 7 ] Police investigation determined that Ms. Gordon's vehicle was in a good operating condition.

Examination of the power control module confirmed the vehicle had been in reverse and that the accelerator had been pressed to 100 percent. Thus, it is the investigators' theory that Ms. Gordon, in her panic and faced with a vehicle sweeping towards her, accidentally pressed the accelerator rather than the brake. [ 8 ] After the accident, Ms. Gordon cooperated with the police investigation and the insurance company. She received physiotherapy for her injuries and she has also received trauma counselling. In addition, she has refrained from driving all but for one month. MS.

GORDON'S BACKGROUND [ 9 ] She is 56 years old. She has no criminal record. Her driving abstract indicates two traffic tickets that occurred over 20 years ago. She is single and lives with her daughter. She has worked for the same company for 20 years and driving is an important part of her work. VICTIM IMPACT STATEMENT [ 10 ] I have read the heart-wrenching victim impact statement that was prepared by Ms. Castillo Rojas' mother. I cannot begin to imagine the pain, the sorrow, and the complete emptiness that she now feels.

CROWN SENTENCING POSITION [ 11 ] The Crown argues that a fit and appropriate sentence is a fine of $1,200 and a driving prohibition in the range of three to four months. In support of Crown's position, they rely on R. v. Kowalewich , 2005 BCPC 634 ; R. v. Cameron , 2004 BCPC 500 ; and R. v. Pekrul , June 23rd, 1999, unreported decision from the Provincial Court registry. MS. GORDON'S SENTENCING POSITION [ 12 ] Ms. Gordon asks this court not to impose the fine sought by the Crown and instead asks for some reduction of the fine.

In support, she points out that she is a single woman working and trying to afford living in Vancouver. With respect to the driving prohibition, she asks the court to avoid imposing a driving prohibition and, in doing so, she points out that a driving prohibition would adversely impact her employment. PURPOSE OF SENTENCING [ 13 ] In circumstances of the instance matter, the sentence imposed must be sufficient to draw the motoring public's attention to the requirement that one must be attentive at all times when operating a motor vehicle.

This requirement is heightened at a location such as that of Granville Island. This is because of the pedestrian traffic and vehicle traffic that can be expected to be there at all times.

[ 14 ] It must be recognized that the purpose of sentencing is not to exact pain on Ms. Gordon, nor is any sentence imposed an expression of the value of Ms. Castillo Rojas' life. Simply stated, there is not a sentence available that would adequately reflect her value as a human being, friend, and daughter. [ 15 ] It must also be recognized that Ms. Gordon did not commit a criminal offence. Rather, her offence was a violation of the Motor Vehicle Act and it represents a momentary inattentiveness that resulted in this tragedy.

This is reflected in part by the sentencing options available, specifically, a minimum sentence of $100 and a maximum sentence of $2,000 and/or jail for a six-month period. [ 16 ] In R. v. Pong , 2016 BCPC 327 , this court stated at paragraph 1: [1] In cases where a treasured life is lost, those left to grieve navigate through many foreign waters. One such waterway is the criminal justice system.

I say "foreign" because most have never interacted with the criminal justice system and their expectations are largely driven by sources that are not reflective of reality. [2] Expectations are typically that, the sentence imposed reflects the value of human life or because a life is lost, that the person responsible must be harshly sentenced or because those left behind are sentenced to a life of hardship, so, too, should the person responsible. [3] As understandable as these thoughts and emotions are, they are misguided.

The purpose of sentencing is not to exact pain or based on an eye-for-an-eye philosophy, nor is the sentence that is imposed intended to reflect the value of a life lost, of the spirit lost, or of the grieving suffered. No sentence that I impose will ever adequately reflect the value of ... And I insert, and equally applicable, is the name of Ms. Castillo Rojas. I also insert the following in the previous paragraph, "The daughter, the child, the friend": ... nor will any sentence imposed ever ameliorate the pain and suffering endured by this tragic and substantial loss.

AGGRAVATING FACTORS [ 17 ] The location where the accident took place, in this regard I have already outlined that the location on Granville Island was significantly busy on this day and is a location where one can always expect a large amount of foot traffic. As such, the amount of attention required by drivers is heightened. MITIGATING [ 18 ] I find the guilty plea to be substantially mitigating. The guilty plea is substantially mitigating for a number of reasons: 1. It saves the state the time and expense of prosecuting this matter. 2. It brings some measure of closure to the family of the deceased. 3.

It is also a waiver of Ms. Gordon's constitutional right to say to the state, "Prove the case against me beyond a reasonable doubt." [ 19 ] I also find Ms. Gordon's remorse to be mitigating. I find her remorse to be genuine. I find that she is truly sorry for the events that occurred and that she is suffering from her acts. I have no doubt that she reflects on this daily and endures much pain. SENTENCE [ 20 ] When I consider the purpose and principles of sentencing, the momentary inattention, and consequences already visited to the parties, including Ms.

Gordon, and in this regard, I refer to her interaction with the police, her being charged, her having to appear before the courts, and her having to explain her actions, as in some measure already bringing about some degree of general deterrence to those in the public, nevertheless, I take into account the location of the events of the accident and the tragedy that was suffered and, in the circumstances, I am satisfied that a fit and appropriate sentence is a fine of $1,200. [ 21 ] I decline to impose a driving prohibition for the following reasons, one, when I consider the circumstances of the event in conjunction with Ms.

Gordon's background, I see no need to suggest that the public is in need of protection from her. That is to say, she does not need to be removed from the roadways in order to protect the public. I am also mindful that a driving prohibition in some regard will assist in general deterrence. However, given the factors mentioned above, I am satisfied that in large measure that has already been achieved. I will, therefore, leave it to the Superintendent of Motor Vehicles to decide and determine if based on all the information whether or not under their regulatory scheme that prohibition is necessary. [ 22 ] Ms.

Gordon, how much time do you need to pay that fine? Would one year be sufficient? One year? [ 23 ] THE ACCUSED: Yes, that would be just fine. [ 24 ] Now there is a victim fine surcharge. Is that at 50 percent – pardon me, not 50, five percent or 30 percent? [ 25 ] THE CLERK: Your Honour, I believe it is 30 percent. [ 26 ] THE COURT: All right. There is also a victim fine surcharge that attaches to that – [ 27 ] THE CLERK: I'm sorry, Your Honour. I misspoke, Your Honour. It is – I believe it's 15 percent. [ 28 ] THE COURT: Fifteen percent. Okay.

[ 29 ] There is a 15-percent victim fine surcharge and I will give you one-year time to pay that, as well. [ 30 ] So with all that in mind, the fines must be paid on or before February 8, 2018. All right. [ 31 ] You will need to attend at the second floor and sign some paperwork in relation to the time to pay. [ 32 ] THE ACCUSED: Thank you. [ 33 ] THE COURT: All right. [ 34 ] MS. DONNELLY: Thank you. [ 35 ] THE COURT: Thank you. [REASONS FOR SENTENCE CONCLUDED]