R. v. Bokenfohr, 2020 BCPC 276

Citation: R. v. Bokenfohr 2020 BCPC 276 Date: 20201209 File No: 254881-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. LUKE ELLIS BOKENFOHR ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE P. LA PRAIRIE Counsel for the Crown: B. Petherbridge by videoconference Counsel for the Defendant: M.K. Woodall by videoconference Place of Hearing: Vancouver , B.C. Date of Hearing: December 9, 2020 Date of Judgment: December 9, 2020 Overview

[ 1 ] THE COURT: Constable Luke Bokenfohr has entered a guilty plea to one count of driving without due care and attention, contrary to s. 144(1)(

a) of the Motor Vehicle Act ( MVA ). [ 2 ] The offence occurred on 18 May 2018 while Constable Bokenfohr was responding to a 9-1-1 call as a member of the Vancouver Police Department (VPD). The police vehicle he was operating hit a cyclist in a marked crosswalk when Constable Bokenfohr drove through a red light. The cyclist, Melody See-Won Lam, suffered serious injuries as a result of the accident. [ 3 ] An agreed statement of facts was filed with the court for the purposes of sentencing. A joint submission has been put before the court that the maximum fine of $2,000 is appropriate in the circumstances.

The only outstanding issue on sentence is whether a driving prohibition pursuant to s. 98(2) of the MVA is warranted. The Crown seeks a driving prohibition of 12 months. Constable Bokenfohr asks that no driving prohibition be imposed. Agreed Facts [ 4 ] The agreed statement of facts, marked as Exhibit 3 on sentencing, sets out the following: [ 5 ] Cst. Bokenfohr is a police officer and member of the Vancouver Police Department. At approximately 9:45pm on May 18th, 2018, Cst. Bokenfohr was on duty in the area of Olympic Village, Vancouver, driving a 2013 Dodge Charger.

He was the only occupant of the vehicle. [ 6 ] At 9:45pm, the VPD dispatcher broadcast for units to attend a suspicious circumstance at a residence on the 800 block of Osler St, Vancouver. The call was initially reported as two female residents (the complainants) reporting a light coming on in their basement. A message sent to Cst. Bokenfohr’s mobile data terminal (MDT) noted that the connecting door to the basement was locked so that there was no access to the upper unit if anyone was inside. [ 7 ] Cst. Bokenfohr was dispatched to the Osler Street call at 9:48:41.

The route which he took and speeds he achieved in attending the call are shown in the map at Appendix A. [ 8 ] The seriousness of the call escalated at around the time of Cst. Bokenfohr’s dispatch when the dispatcher said and wrote that the complainants reported hearing footsteps in the basement. A minute later, the dispatcher reported that nothing had been heard for 10 minutes. The dispatcher then said, at 9:52:47, that the complainants “can see lights and hear footsteps in a part of the res where there shouldn't be anybody”.

At 9.53 the dispatcher reported that the basement light was outside and motion-censored. It had not turned off as the resident expected, which they found odd. [ 9 ] At 9:57:32, while Cst. Bokenfohr was travelling south on Main Street, he asked for confirmation as to when anything was last heard by the complainants. The dispatcher relayed that the complainant had confirmed that they had heard nothing, including any footsteps or movement, for the last 20 minutes. Cst. Bokenfohr replied “copy”.

At 9:59:56, the supervising sergeant diverted the dog unit on route to the Osler Street call to another incident due to this time delay. [ 10 ] Cst Bokenfohr then turned south onto Oak Street at approximately 22:01. As he approached the intersection of Oak St and West 46th Avenue, he observed a fresh red light and slowed his vehicle to, or close to, a stop. He was travelling at that time in the lane closest to the centre line.

He had not engaged either his emergency lights or siren while travelling on Oak Street to this point. [ 11 ] The red light had been activated by Melody Lam, a cyclist who was travelling east to west on West 46th Avenue. She had stopped her bicycle and pressed the crossing signal button then waited for the light to change and saw all northbound traffic stop for the red signal. She was aware of Cst.

Bokenfohr’s police vehicle approaching southbound but, as it displayed no lights or sirens as it approached the intersection and appeared to be stopping, she believed it safe to cross and started to cross the intersection on her bicycle, riding just outside the east to west crosswalk on the north side of the intersection. She had successfully crossed the three northbound lanes of Oak Street when Cst. Bokenfohr flashed his vehicle’s emergency lights and immediately accelerated into the intersection, knocking her off her bicycle.

He did not engage his vehicle’s emergency siren. [ 12 ] The plan at Appendix B reflects the positioning of Cst. Bokenfohr’s vehicle and Melody Lam’s bicycle following the collision. There were no cars in the northbound lane to the north of the crosswalk at the time of the collision to obscure Cst.

Bokenfohr’s view of the crosswalk as all traffic travelling in that direction had stopped for the red signal. [ 13 ] At the time of the collision, Melody Lam’s bicycle was displaying a white flashing light on the front handlebars, facing forward, a red flashing light on the seat post, facing backward and red flashing lights on the front wheel spokes, facing both sides. She was wearing dark clothes to just below the knee with bare legs and white and orange shoes.

Her bicycle helmet carried reflective material. [ 14 ] West 46th Avenue as it crosses Oak Street is a designated cycle route and marked as such on the overhead signage on Oak Street. At the time of the collision, the roadway was dry and in good repair. The skies were clear, and no precipitation was falling. The roadway and intersection were illuminated by overhead streetlamps.

The scene is shown in the photographs attached at Appendix C which were taken shortly after the collision. [ 15 ] As a result of the collision, Melody LAM suffered the following injuries which are consistent with her being struck by a vehicle moving at slow speed: An intra-articular fracture of the right ankle through the medal malleolus requiring surgery, reduction and fixing with two cannulated screws; A seven-centimeter laceration to the right lower leg requiring sutures; Multiple abrasions on the right side of the body including hands and face; Levator dehiscence of the right upper eyelid ptosis (drooping eyelid).

Motor Vehicle Act and Regulations [ 16 ] Section 98(2) of the MVA sets out that if a court convicts a person of an offence under the Act, the court may consider the

person's driving record and prohibit the person from driving a motor vehicle for a definite period of time, if the court considers that the facts of the case and/or the person's driving record justify the prohibition. [ 17 ] As Constable Bokenfohr was on duty and responding to a 9-1-1 call at the time of the accident, the provisions of s. 122 of the MVA are applicable. That

section permits the driver of an emergency vehicle to exceed the speed limit, and proceed past a red traffic control signal without stopping, subject to exercising privileges in accordance with the Emergency Vehicle Driving Regulations . [ 18 ] Regulation 4(1)(

b) permits a peace officer to exercise the privileges granted by s. 122 of the MVA if the officer operates an emergency light and siren. That is the applicable regulation to the circumstances of this case. [ 19 ] There is no dispute that Constable Bokenfohr was responding to a 9-1-1 call, and had reasonable grounds to exercise the privileges granted by s. 122(1) of the MVA . However, he was not in compliance with the regulations as he failed to operate both his emergency light and siren while driving the police vehicle while enroute to the location of the 9-1-1 call.

Case Authority [ 20 ] The Crown relies upon the following cases in support of its position that a 12 month driving prohibition is appropriate in addition to the maximum fine of $2,000. R. v. Brox, 2016 BCSC 1190 , R. v. Kowalewich, 2005 BCPC 634 , R. v. Linekar, 2013 BCPC 353 , R. v. Miller, 2013 BCSC 1453 , R. v. Randhawa, 2011 BCPC 372 , R. v. Weidmann, 2008 BCPC 159 . [ 21 ] I have reviewed all of the cases relied upon by the Crown.

The case authorities establish that denunciation and deterrence are the primary sentencing principles for an offence of driving without due care and attention. [ 22 ] A driving prohibition is not punitive, but is made in recognition of the need to keep bad drivers off the roads. A prohibition also fulfils a deterrent function by bringing home to the driver the need to address their driving habits. The more substantial the driving record, the greater is the need for a driving prohibition. ( See R. v. Brox at paragraph 35 , referencing R. v.

McLaren, 2014 BCSC 982 .) [ 23 ] The focus of sentencing for an offence of driving without due care and attention is on the manner of driving, not the consequences of the accident. The deterrence of future conduct is a strong consideration on sentencing, as there is a requirement for all drivers to drive in a safe manner at all times. ( See R. v. Weidmann at paragraphs 19 to 21 ; R. v. Linekar at paragraph 17 .) [ 24 ] Post-offence driving conduct is also a relevant consideration on sentencing. ( See R. v. Brox at paragraph 39 ; R. v.

Miller at paragraph 12 .) [ 25 ] An additional factor to be considered in this case is that the accident involved a cyclist operating in a marked bicycle crossing. The following comments of Quantz PCJ in R. v. Kowalewich at Paragraphs 9 and 10 are applicable : Increasingly our roadways are being shared by motorists and cyclists.

As a result, the potential for harm to cyclists is extreme, and far outweighs the risks to motorists when collisions occur. [10] Society (and the courts as well) must do what it can to reasonably protect cyclists and to bring home to motorists that they have a duty to always keep the safety of cyclists in mind. In far too many instances, it appears that people in cars fail to look for, and as a consequence do not see, cyclists. Victim Impact Statement [ 26 ] Ms. Lam provided a very eloquent and thorough victim impact statement.

In it, she describes her love of cycling, which was not a hobby for her but a way of life. The accident has taken that part of her life from her. [ 27 ] She sets out the physical impact the accident has had upon her and the serious injuries she suffered and continues to suffer. She sets out the emotional and mental health impact the accident has had on her life, as well as the economic and lifestyle impact upon her. [ 28 ] The last paragraph of the victim impact statement sums up the effect of this accident upon Ms. Lam.

She states: I hope it's clear from this victim impact statement that, without exaggeration, this offence has impacted every single part of my life. Each day since has been a test of resilience and endurance, and each day forward will be as well. My life has changed forever. Driving Record [ 29 ] Constable Bokenfohr has a related driving record. Between 1991 and 2002 there are fourteen driving infractions on the driving record. The majority occurred between 1991 and 1997. [ 30 ] In 1998, he was issued a 9 month driving prohibition by the court pursuant to s. 98 of the MVA .

However, the majority of driving infractions occurred before he became a police officer in 2013. In 2017, Constable Bokenfohr incurred two driving infractions, one for speeding and the other for disobeying a stop sign. Since the accident of May 2018, Constable Bokenfohr committed a further driving infraction of driving in the HOV lane on March 2, 2020. Circumstances of Constable Bokenfohr [ 31 ] Constable Bokenfohr is 48 years old and has been a member of the VPD since January 7, 2013.

He is divorced with two young children, who he has custody of fifty percent of the time, and whom he drives to school. [ 32 ] Constable Bokenfohr lives in Port Coquitlam, which requires that he commute into Vancouver for work. During this time of COVID, he is concerned about travelling on public transportation for both himself and his children.

[ 33 ] Constable Bokenfohr is remorseful over the accident and the injuries suffered by Ms. Lam. At the time of the accident he was driving alone in the police car, which required him to communicate with the police dispatch and drive at the same time. He came to a near stop at the intersection before proceeding through it after flashing his emergency lights. Constable Bokenfohr did not see Ms.

Lam in the intersection due to the glare of headlights from the approaching vehicles stopped in the opposite lanes of traffic. [ 34 ] As a police officer his duty is to protect the public, which is the opposite of what happened to Ms. Lam. As a result of the accident, Constable Bokenfohr will face disciplinary proceedings under the Police Act . It is also widely known within the VPD that the officer was charged with an offence due to this accident.

Analysis [ 35 ] The issue to be addressed in the sentencing is whether a driving prohibition is necessary to address the principles of denunciation and, in particular, deterrence. As a police officer responding to a 9-1-1 call, Constable Bokenfohr is in a unique position in relation to the case authority presented. [ 36 ] As Mr. Woodall has correctly pointed out, Constable Bokenfohr was not engaged in driving for personal reasons, but was responding to a serious call while engaged in police business.

He argues that the officer was focused in responding to the 9-1-1 call which contributed to his momentary lack of attention, resulting in the accident at the intersection. [ 37 ] The manner of driving and the driving record are factors to be taken into consideration in determining whether it is appropriate to impose a driving prohibition. Constable Bokenfohr is not being sentenced for the consequences of the accident which injured Ms. Lam, but for driving without due care and attention. [ 38 ] However, it must be noted that this was a preventable accident.

If Constable Bokenfohr had activated his emergency equipment while responding to the 9-1-1 call, Ms. Lam would have seen or heard the police vehicle approaching the intersection and would not have entered it to cross. Unfortunately, Constable Bokenfohr did not comply with the regulations as he approached the intersection. [ 39 ] Constable Bokenfohr's driving record contains fourteen infractions as well as a driving prohibition from 1998.

The record contains ten infractions for speeding, a 24 hour prohibition, an infraction for not having a driver's licence, disobeying a stop sign, and unlawful use of the HOV lane. The majority of the infractions are prior to 1998 before Constable Bokenfohr joined the VPD. However, since becoming a police officer, the driving record shows infractions in 2017 for speeding and disobeying a stop sign, in 2020 he committed an infraction of unlawfully driving in an HOV lane.

The last infraction occurred while Constable Bokenfohr was before the court in relation to the current matter. [ 40 ] The Crown's position that a one year driving prohibition is appropriate in the circumstances is supported by the case authorities. In R. v. Brox , the accused had ten infractions on his driving record prior to the accident and one post-accident infraction. Many of the driving infractions were dated and ranged from speeding tickets to failure to wear a seatbelt. The accident occurred when Mr. Brox struck two pedestrians in a crosswalk as he turned at a slow speed.

One of the pedestrians was an elderly woman who died. The sentencing judge imposed a fine of $1,800 plus a two year driving prohibition. On appeal, the court varied the driving prohibition to one year based upon Mr. Brox's driving record and the circumstances of the offence of driving without due care and attention. [ 41 ] In R. v. Randhawa a newly licenced driver with no driving infractions was given a six month driving prohibition plus a fine of $1,500 for an offence of driving without due care and attention.

She was involved in an accident in downtown Vancouver at rush hour when she failed to see a motor scooter as she turned left at an intersection. The driver of the motor scooter was killed. [ 42 ] In R. v. Weidmann an accident occurred at an intersection after Mr. Weidmann failed to observe a motorcycle as he turned left. The motorcycle driver was killed. Mr. Weidmann was 28 years old and had a driving record, which the sentencing judge found to be significant. It consisted of six prior infractions, including two earlier convictions for driving without due care and attention.

The judge imposed a jail sentence of 10 days and a driving prohibition of 12 months. [ 43 ] In R. v. Linekar an accident occurred when Mr. Linekar rear ended a vehicle at an intersection, causing it to collide with an oncoming vehicle resulting in fatalities. Mr. Linekar was 36 years old and had a dated driving record of fourteen infractions, including eight infractions for speeding offences. The court imposed a fine of $2,000 and a driving prohibition of 18 months. [ 44 ] Lastly, in R. v. Kowalewich a bicyclist was struck as Mr. Kowalewich turned at an intersection. The cyclist was killed. Mr.

Kowalewich was 67 years old with one dated speeding infraction on his driving record. The court imposed a fine of $1,500 and a 6 month driving prohibition. [ 45 ] The case authorities establish that a driving prohibition is generally warranted for an offence of driving without due care and attention, especially when the driver has a driving record. Constable Bokenfohr's driving record is similar to that of Mr. Linekar and Mr. Brox. In both cases driving prohibitions were imposed. [ 46 ] I do not disagree with the Crown that the cases establish that a driving prohibition is warranted in this case.

The range suggested by the Crown is supported by the case authorities. However, there are unique circumstances that I must take into account in this case. Constable Bokenfohr is a police officer who was responding to a 9-1-1 call when the accident occurred. In addition to these proceedings, he will be subject to disciplinary proceedings under the Police Act . That is an additional deterrent factor which I must consider on sentence. [ 47 ] I also have to take into consideration the current COVID pandemic.

As a police officer, Constable Bokenfohr is a front line worker and in contact with the public on a regular basis. Due to the nature of his employment, he is at a greater risk factor of coming into contact with someone who is COVID positive. I appreciate the concerns he has expressed about further increasing his risk by using public transportation, as well as increasing the exposure risk for his children. The COVID situation is a factor I have to take into account in determining whether a driving prohibition is warranted.

[ 48 ] Deterrence is the primary sentencing factor to be addressed by a driving prohibition. The disciplinary proceedings under the Police Act are a further deterrent to be considered. I have to consider the current COVID situation and the added potential exposure that a driving prohibition will have on the officer, a front line worker. [ 49 ] In the circumstances, I find that a driving prohibition is warranted, but one that is less than the Crown's position of 12 months. Sentence [ 50 ] There will be a fine of $2,000 with six months to pay. [ 51 ] Pursuant to s. 98(2) of the Motor Vehicle Act, there will be a driving prohibition of 6 months. (REASONS CONCLUDED)