R. v. Campbell, 2019 BCPC 11

Citation: R. v. Campbell 2019 BCPC 11 Date: 20190131 File No: 251902-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. PATRICK GERARD CAMPBELL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: Damien Assonitis Counsel for the Defendant: John J. McIntyre Place of Hearing: Vancouver , B.C. Date of Hearing: December 18, 2018 Date of Judgment: January 31, 2019 INTRODUCTION [ 1 ] On August 13, 2017, the Plevyak and Aulakh families were loading their rental vehicle when a tour bus driven by Mr. Campbell collided with their car.

Sadly, Michal Plevyak was killed. Manjit, Aulakh, and Raina Plevyak were seriously injured. After an extensive investigation, the police determined that the cause of the accident was Mr. Campbell’s failure to recognize that he had not fully stopped the bus.

[ 2 ] In the circumstances, Mr. Campbell was charged with driving without due care and attention contrary to s. 144 (1) (

a) of the Motor Vehicle Act. He pleaded guilty to this allegation and a sentencing hearing was conducted where counsel agreed that a fine of $1,800.00 was fit and appropriate. Despite this agreement, counsel differed on the issue of whether or not a driving prohibition was required. CIRCUMSTANCES OF THE OFFENCE [ 3 ] Mr. Campbell worked for a local bus company shuttling passengers from the 900 block of Canada Place to an attraction on the North Shore. [ 4 ] Mr. Campbell was an experienced bus driver. He had worked for the company since 2010 and he had taken a minimum of 50 hours of intensive training.

The training involved, classroom training, shop and vehicle familiarization, Hop-on–Hop-off training and a road test for highway coach driving. In addition to this experience, Mr. Campbell spent 18 years as a truck driver. [ 5 ] At approximately 10:05 am on August 13, 2017, Mr. Campbell stopped his bus in the 900 block of Canada Place. At 10:15 am, Mr. Campbell started to board passengers, and after 10 to 15 people had boarded the bus, he noticed the bus tilting to the right, thereby, causing the front door to contact the sidewalk. [ 6 ] Mr. Campbell commented to Ms.

Wong, an attraction coordinator, about the problem and he told her that he was going to put air into the bus. Mr. Campbell then sat in the driver’s seat and moved the bus slightly forward and away from the curb. [ 7 ] While Mr. Campbell was dealing with the bus, the Plevyak and Aulakh families were at the curb in front of the bus and in the process of loading their rental vehicle. Then, and while Mr.

Campbell was likely focused on the door, the bus rolled 13.9 meters colliding with the rear of the Plevyak and Aulakh rental vehicle. [ 8 ] As a result of the collision, Manjit Aulakh became trapped under the bus, Michael Plevyak became trapped in the front wheel well of the bus, and Raina Plevyak was pinned between the bus and a concrete pillar. [ 9 ] Raina Plevyak suffered fractures to her pelvis, a permanent injury to her thigh and scarring to her right leg. Mr.

Aulakh suffered multiple fractures to both hands, a partial loss of a finger, crush injuries to his bladder and urethra, a punctured lung and bruising. Sadly, Michael Plevyak did not survive his injuries. [ 10 ] The police conducted a thorough investigation and with the assistance of video footage they were able to determine the timing of the events. In this regard, Mr. Campbell started the bus at 10:13:14, and at 10:13:18, he released the parking brake. At 10:13:18, the bus started to roll and at 10:13:21, the front door closed.

The collision occurred at 10:13:23 which was five seconds after the bus had gone into motion. [ 11 ] Mr. Campbell cooperated with the investigators. In his statement to the police, he acknowledged there was a possibility that he was looking at the closing passenger door during the five seconds that the bus was in motion. [ 12 ] In the circumstances, I find that Mr. Campbell’s inattention was momentary and it occurred at a time where he likely believed that the bus was stopped. In my view, this is significantly different than a person who fails to pay attention while engaged in the full process of driving.

PERSONAL CIRCUMSTANCES [ 13 ] Mr. Campbell is 64 years old. Throughout the years he has worked at a number of occupations. Notably, he drove a truck for 18 years, and he spent seven years as a limo bus driver. In addition, he has tended bar and he has worked as a deckhand on a fish boat. While working as a bar tender, Mr. Campbell witnessed a murder and while working as a deckhand he saved a man’s life. [ 14 ] The accident had a significant impact on Mr. Campbell. He suffers from Post Traumatic Disorder.

His symptoms include, anxiety, frustration, flashbacks, and what he describes as a “mental fog.” He has been unable to work since the accident and he is currently receiving disability benefits. Mr. Campbell has no interest in returning to work as a driver. [ 15 ] As for his personal life, Mr. Campbell is single and he cares for his 18 year old son, who suffers from depression and requires significant support. [ 16 ] Mr. Campbell does not have a criminal record. He has a dated and short driver’s abstract. His last motor vehicle infraction was in September 9, 1994. [ 17 ] During the sentencing hearing, Mr.

Campbell addressed the court. During his address, he began to sob heavily. Mr. Campbell’s actions and words satisfy me that he is deeply remorseful. In the words of his counsel, “No punishment can be greater than the one he imposes on himself.” VICTIM IMPACT STATEMENTS [ 18 ] I have read each Victim Impact Statement several times. It is clear that the joy and happiness embraced by the Aulakh and Plevyak families has been lost. They now struggle with grief, emptiness and the profound changes they have experienced. The emotional scars and physical scars will be with the families for all time.

The loss of Michael Plevyak, a husband, a father, a son in-law and so much more, has clearly left a massive void for all involved. SENTENCING POSITIONS [ 19 ] Counsel agree that a fine of $1,800 is a fit sentence. The Crown argues there should be a 6 to 12 month driving prohibition. The Crown submits that a driving prohibition will deter others and appropriate given the aggravating factors. The Crown relies on the

following authorities: R. v. Cameron 2004 BCPC 500 , 2004 BCPC 0500, R. v. Kowalewich 2005 BCPC 634 , 2005BCPC 0634, R. v. Pellow 2006 BCPC 124 , 2006 BCPC 0124, R. v. Chisholm 2009 BCPC 23 , 2009 BCPC 0023, R. v.Lineker 2013 BCPC 353 , 2013 BCPC 0353, R. v. Bahia 2013 BCJ No. 2840, R. v. Ward 2017 BCPC 40, R. v. Gordon 2017BCPC 56, R. v. Weckenmann 2017 BCPC 117. [20] Counsel for Mr. Campbell submits that a driving prohibition would cause Mr. Campbell hardship and is not warranted in thecircumstances. In this regard, Mr. Campbell has no intention of ever working as a driver.

Despite this, his ability to drive assists him incaring for his son and it will also make his job search easier. PREVIOUS DECISIONS [21] In considering the cases submitted, similar cases are of some assistance in that they provide guidance. Despite this, I appreciatethat sentencing is an individualized exercise, hence, a sentencing judge is obligated to consider the unique circumstances of the offender. I also appreciate that similar cases assist in establishing a sentencing range and while sentencing ranges are of assistance they do notrepresent inflexible boundaries: R. v.

Pirouz, [2009] BCCA 51, at paragraph 41. [22] In R. v. Cameron 2004 BCPC 500 , 2004 BCPC 0500, the offender was sentenced for driving without due care andattention. The sentence imposed was a $1,200 fine and the issue of a driving prohibition was left to the Superintendent of MotorVehicles. The circumstances of the case are; the offender was driving at night and she re-ended a motorcycle killing the rider. Theoffender was 43, a school teacher, and she had two children. She did not have a criminal record, nor, did she have a driving record.

Thesentencing judge recognized that deterrence was an important sentencing principle and he also recognized that the driving and theoffender’s moral blameworthiness was at the low end of the spectrum. [23] In R. v. Kowalewich 2005 BCPC 634 , 2005 BCPC 0634, it appears that the offender was convicted after trial for amotor vehicle offence involving an accident. The accident occurred when the offender turned in front of an oncoming cyclist. Acollision occurred and the cyclist was killed. The offender was 67 years old. He had one entry on his driver’s abstract.

The sentenceimposed was a $1,500 fine and a six month driving prohibition. At paragraph 10 of the sentencing decision, the judge placed emphasison too many instances of motorists failing to look out for cyclists. He also noticed that the offender did not appreciate what he couldhave done to avoid the accident. [24] In R. v. Pellow 2006 BCPC 124 , 2006 BCPC 0124, the offender pleaded guilty to driving without due care andattention and he was sentenced to imprisonment for 21 days and a three year driving prohibition was imposed.

The guilty plea was aftera preliminary inquiry on more serious criminal driving charges arising from the same event. The circumstances were; the offender wasdriving a tractor trailer loaded with calcium ore when he drove into a corner that he was familiar with and he knew it was notoriouslydangerous. At the time of the accident, the offender was travelling between 88 and 94 kilometres per hour in a zone with an advisoryspeed of 70 kilometres per hour. The offender’s vehicle tipped over triggering a fireball that incinerated another vehicle killing both ofthe occupants.

In giving his reasons, the sentencing judge observed that the conduct was a serious departure. He noted that the offenderwas a commercial driver, the size of the vehicle, the speeds, and the decision to maintain high speeds where entering an inherentlydangerous curve. [25] In R. v. Chisholm 2009 BCPC 23 , 2009 BCPC 0023, the offender was sentenced to a fine of $1,300 after he wasconvicted at trial of driving without due care and attention. In this case, the offender momentarily took his eyes off the road to adjust hisstereo or air conditioner and when he looked up he saw that the car in front of him had stopped.

The offender was unable to stop and hecollided with the car in front of him. The collision caused a fire, killing the driver and injuring the passenger. The offender was in hisearly twenties, working part-time and attending college. In imposing sentence, the judge recognized the driving was a momentaryinadvertence and, thus, less blameworthy. [26] In R. v. Lineker 2013 BCPC 353 , 2013 BCPC 0353, the offender pleaded guilty to driving without due care andattention. The plea occurred mid-trial on related criminal driving charges. The offender was sentenced to a $2,000 fine and an 18 monthdriving prohibition.

In this case, the offender re-ended another vehicle causing it to enter into an intersection where it collided with athird vehicle. Two people were killed and one seriously injured. The offender was 36 years of age. He had a dated criminal record fordrug possession and his driving abstract showed 14 driving infractions with his last offence being 4 years prior to sentencing. Inconsidering the matter, the sentencing judge highlighted the need for denunciation and deterrence and he found the offender’s drivinghistory aggravating. [27] In R. v.

Bahia 2013 BCJ No. 2840, the offender pleaded guilty to driving without due care and attention and he was sentencedto a $1500 fine. In this case, the offender was a professional truck driver and was driving a tractor with a loaded trailer. Uponapproaching an intersection, the offender only noticed that the light facing him had turned red when there was no time to stop. Theoffender went through the intersection and he struck a left turning vehicle. The driver of that vehicle suffered catastrophic injuries. Theoffender did not have a criminal record, nor, did he have driving record.

The offender had been a truck driver for 17 years, however, atthe time of sentencing he was no longer working. [28] In R. v. Ward 2017 BCPC 40, the offender was convicted of driving without due care and attention and she was sentenced to a$1,400 fine. In this case, the offender entered an intersection heading east with the intention of turning left. In the process of making herturn, she failed to see a motorcyclist traveling from her left. A collision occurred and the motorcyclist was killed. The offender was 44years old, she had significant driving experience with one dated speeding infraction.

She was separated and she had a 13 year old child. The accident caused the offender emotional difficulties. [29] In R. v. Gordon 2017 BCPC 56, the offender pleaded guilty to driving without due care and attention and a $1,200 fine wasimposed. In this case, the offender stopped her vehicle in an area known for significant pedestrian traffic. The offender was exiting hervehicle and in doing so she failed to set the brake or place her vehicle in “park”. When the vehicle started to roll, the offender accidentlystepped on the accelerator, rather than the brake.

This caused the vehicle to race in reverse striking and killing a pedestrian. Theoffender was a single, 56 years old and living with her daughter. In determining an appropriate sentence, the sentencing judge found it

aggravating that the offence occurred in an area where one can always expect a large amount of pedestrian traffic. [ 30 ] In R. v. Weckenmann 2017 BCPC 117 , the offender pleaded guilty to driving without due care and attention and she was sentenced to a $1,500 fine with probation for nine months. One of the probation conditions required the offender to undergo a driver assessment. In this case, the offender was making a left turn across two lanes of traffic and she failed to see an oncoming motorcycle. The motorcycle collided with the right rear portion of the offender’s vehicle.

The driver of the motorcycle was killed and the passenger was seriously injured. At the time of sentencing, the offender was 81 years old and retired. She had been driving for 50-60 years. [ 31 ] From the above cases, I find that a fine in the range of $1,200 - $2,000 is typically imposed in cases wherein a death or serious injury is caused by momentary driver inattention. As for driving prohibitions, it appears they are imposed in circumstances where the moral blameworthiness is high, or, where there is evidence suggesting a need to protect the public.

PURPOSE AND PRINCIPLES OF SENTENCING [ 32 ] From the above cases, I observe that deterrence is the primary sentencing objective for driving offences involving a momentary inadvertence. Considering the instant case, I am of a similar view that deterrence is the primary sentencing objective. My conclusion is based on the need to ensure that the operators of commercial buses appreciate that the lives of those on the streets and on board their buses demand that the operators devote their complete attention to the task of driving and failure to comply with this standard will result in court imposed consequences.

FUNDAMENTAL PRINCIPLE OF SENTENCING [ 33 ] A fundamental principle of sentencing is that any sentence imposed must be proportionate to the gravity of the offence and to the degree of moral responsibility. This principle is essential to fair and just sentences as it prevents sentences from being overly lenient or overly harsh. Simply, it is a direction that a balance must be achieved and that balance is driven by the offender’s moral blameworthiness and the seriousness of the offence. [ 34 ] The seriousness of an offence is determined by looking at the available sentence.

Thus, those offences with a maximum available sentence of life imprisonment are obviously viewed as more serious. In the instant matter, the offence is a regulatory offence and a conviction does not result in the stigma of a criminal record. The maximum penalty available is $2,000 fine and or up to six months imprisonment. [ 35 ] As for the degree of moral blameworthiness, I find Mr. Campbell’s blameworthiness to be at the low end of the spectrum.

In this case, the lack of attentiveness was momentary and it did not occur while travelling on a highway, rather, it occurred just feet away from the curb and during the few moments that Mr. Campbell was distracted. AGGRIVATING AND MITIGATING FACTORS [ 36 ] It is aggravating that Mr. Campbell’s momentary inadvertence happened in a heavily trafficked area. I also find it aggravating that the inadvertence occurred while he was in command of a large vehicle that was capable of such destruction.

Simply stated, large vehicles present a greater risk, thus, the demand for greater care and attention is mandated. [ 37 ] I find the following to be mitigating, Mr. Campbell pleaded guilty, hence, saving the expense of a prosecution and most importantly saving the victims from having to relive their nightmare. Finally, Mr. Campbell’s genuine and strong feelings of remorse is mitigating. ANALYSIS [ 38 ] In this case, Mr. Campbell was operating a large vehicle, he was a commercial operator and he was trusted with the lives of his passengers.

Then, and while in a location with a large amount of traffic, he allowed his attention to be distracted for five seconds. This inattention changed lives forever; including his own. [ 39 ] When I consider the requisite amount of deterrence, I have considered the events that have already occurred which contribute to the deterrence of others.

Specifically, the repeated court appearances, the inability to work, and the profound guilt associated with causing a death and injuries to others. [ 40 ] Considering the above, I turn to the proposed fine and I note it is higher than most of the fines imposed in the cases cited. In my view, the increased fine in this case reflects the increased need for deterrence. [ 41 ] As for a driving prohibition, I decline to impose one for the following reasons. First, the public does not need to be protected from Mr. Campbell.

In this regard, the accident was caused by momentary in attention, and not through protracted behaviour, additionally, Mr. Campbell’s driving abstract is not suggestive that he is a hazardous driver and, therefore, a risk to the community. [ 42 ] Second, a prohibition is not necessary to achieve deterrence as this has already been achieved in part by the higher fine and through the process itself. Third, a prohibition would have unintended consequences on Mr. Campbell’s eventual search for work and his ability to care for his son. CONCLUSION [ 43 ] It must be recognized that Mr.

Campbell is not being sentenced for a criminal offence; rather, he is being sentenced for a Motor Vehicle Act offence. The difference must not be lost, a Motor Vehicle Act offence is an offence that involves less moral blameworthiness, less social stigma, and less of a penalty than that of a criminal offence. The sentence imposed is not for the harm caused, it is for driving without due care and attention.

[ 44 ] It must also be recognized that, the sentence imposed is not intended, nor, should it be interpreted as reflecting of the value of the life lost or the injury suffered. Nothing I say or do would ever adequately reflect what has been lost, nor, will it return the families to where they were before the accident. [ 45 ] After considering all of the factors, submissions and authorities, I find that a fit and appropriate sentence is a fine of $1,800. I decline to impose a driving prohibition. ____________________________ The Honourable Judge R. Harris Provincial Court of British Columbia