R. v. Feng, 2021 BCPC 91

Citation: R. v. Feng 2021 BCPC 91 Date: 20210413 File No: 255758-K-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. HUA FENG REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: M. Myhre Counsel for the Defendant: K. Westlake, Q.C. Place of Hearing: Vancouver , B.C. Dates of Hearing: January 27, February 5, 2021 Date of Judgment: April 13, 2021 Corrigenda were released by the Court on April 19 and June 28, 2021. The corrections have been made to the text and the corrigenda are appended to this document.

INTRODUCTION [1] In September of 2019, Mr. Feng drove a vehicle into the Fraser River and, as a result, he was charged with dangerous driving.Mr. Feng pled guilty to the allegation and a sentencing hearing was held, wherein the Crown urged the Court to sentence Mr. Feng to a 6month conditional term of imprisonment, probation for 12 months, and a 12 month driving prohibition. Counsel for Mr. Feng submitsthat a conditional discharge would be a fit and appropriate sentence. CIRCUMSTANCES OF THE OFFENCE [2] On September 17, 2019, Mr. Feng and his now former girlfriend, Ms.

Xu, spent the day driving to various acquaintances inhopes of borrowing money. At approximately 6:30 p.m., Mr. Feng and Ms. Xu started to argue. During the argument, Ms. Xu stated thatshe did not want to live this way and she told Mr. Feng that he was “garbage” and said, “Why don’t you die?” Mr. Feng responded bysaying, “Then let’s die together.” [3] After the above, Mr. Feng started driving erratically. In this regard, he began swerving across the roadway and alternatingbetween accelerating and braking. Ms.

Xu became fearful that they were going to crash and she wanted to get out of the car, but shecould not because it was in motion. Ms. Xu tried to control the steering wheel, but she stopped out of fear that she would agitate Mr.Feng. Ms. Xu then asked Mr. Feng to please stop and she held his forearm. She then kicked the glove box and Mr. Feng calmed andcontinued driving. [4] Ultimately, Mr. Feng drove south in the 8600 block of Fraser Street, which is a block that terminates to south at the FraserRiver. Video footage shows Mr.

Feng driving south on Fraser Street for approximately one block, then through a gap between twoconcrete barriers, over an embankment and into the river. [5] When the car went into the river, Ms. Xu tried to open her door but she was unable to do so. Luckily, Mr. Feng was able to openhis door allowing them to escape from the vehicle.

Thereafter, the pair made their way to shore. [6] An examination of the vehicle’s Airbag Control Module revealed that the vehicle was traveling 71 kilometres per hour,approximately 1.5 seconds before the collision; that the accelerator was engaged until approximately 2.5 seconds before the collision,and the brakes were not activated until approximately 1 second before the collision. VICTIM IMPACT [7] Owing to Mr. Feng’s actions, Ms. Xu will not ride in a car with others and she gets anxious near flowing water. For a periodafter the accident, Ms.

Xu could not sleep and her work performance fell to the point where she was dismissed. As for financialconsequences, Ms. Feng suffered medical expenses and expenses related to her phone and computer being damaged when the car enteredthe water. MR. FENG’S PERSONAL CIRCUMSTANCES [8] Mr. Feng is 37 years old and he does not have a criminal record. He has a driving abstract with entries for, failing to yield,excessive speed, speeding, and two convictions for using an electronic device while driving. [9] Mr. Feng was born in China and he has permanent residency status in Canada.

He is separated and he has an eight-year-olddaughter. Prior to coming to Canada, Mr. Feng received a business management degree, and a diploma in finance and economics. Oncein Canada, Mr. Feng spent six months at a local university and thereafter he worked with his father developing small real estate projects.Mr. Feng is now working as a manager at a local restaurant. [10] As for the offence, Mr. Feng’s counsel explained that Mr. Feng had been up all night and was driving around attempting toborrow money that Ms. Xu urgently needed. When Mr. Feng could not secure the money, Ms.

Xu began to berate him and kick the glovebox. As such, at the time of the accident, Mr. Feng was exhausted, highly distracted and driving in an unfamiliar area. [11] Of significance, and unique to Mr. Feng, are the potential immigration consequences of any sentence. In this regard, a dischargewould likely have no impact on his immigration status. In contrast, a sentence beyond a discharge, would result in a presumption that Mr.Feng is inadmissible to Canada. Thereafter, he would have an opportunity to dissuade a Minister’s delegate from referring Mr. Feng’scase for an admissibility hearing.

If an admissibility hearing is held it quite likely that a removal order would be issued. SENTENCING POSITIONS The Crown [12] The Crown seeks a six-month conditional term of imprisonment, probation and a 12 month driving prohibition. The Crownargues that the sentence imposed must have the primary objectives of denunciation and deterrence. In support, the Crown points out thatMr. Feng conducted himself with a reckless disregard and that he intentionally drove into the river, thereby abusing his intimate partner,Ms. Xu, and causing her significant emotional trauma. The Crown relies on: R. v.

Brace 2007 CarswellOnt 3753, R. v. Draid, 2016BCSC 1851. The Defence [13] Counsel for Mr. Feng, argues that a combination of Mr. Feng’s reduced culpability combined with significant immigrationconsequences supports the conclusion that a conditional discharge would be in Mr. Feng’s best interests and not contrary to publicinterest. Counsel relies on; R. v. Suter, 2018 SCC 34 (CanLll), [2018] SCR 496; R. v. Saunders, (unreported) Vancouver RegistryCA014473, (BCCA); R. v. Carroll,

(1995) CanLll 1123 (BCCA); R. v. Caswell,

(1994) CanLll 172 (BCCA); R. v. Jeremiah, 2018BCCA 89; R. v. Beittoei, 2001 BCPC 354 , 2001 BCPC 0354; R. v. Poryadin, 2016 ABQB 320; R. v. Boyko, 2003 SKQB 139;

R. v. Angelov, 2013 ONCJ 117 , 2013 ONCJ117; R. v. Poitras, 2005 ABPC 334; R. v. Jassal, 2007 BCPC 231; R. v. Tone, 2003BCSC 880; R. v. Klassen, 2011 BCPC 109; R. v. Fallofield, (1973) (BC CA), 13 CCC (2d) 450 (BCCA). These casesdeal with collateral consequences, the application of the discharge provisions, driving cases where a discharge was granted and otherserious cases wherein discharges were granted. THE LAW The purpose and principles of sentencing [14] The purpose and principles of sentencing are set out in ss. 718 - 718.2 of the Code.

Section 718 of the Code states: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [15] As per s. 718.1, proportionality is a fundamental principle of sentencing. As such, the sentence that I impose must beproportionate to the gravity of Mr. Feng’s offences and to his level of responsibility. In R. v.

Ipeelee, 2012 SCC 13, Justice Labelcommented on proportionality and at para. 37 observed: [37] The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — themaintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord tothe various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle ofproportionality. Proportionality is the sine qua non of a just sanction.

First, the principle ensures that a sentence reflects the gravity of theoffence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justicesystem. As Wilson J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, atp. 533: It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a “fit” sentenceproportionate to the seriousness of the offence.

Only if this is so can the public be satisfied that the offender “deserved” the punishmenthe received and feel a confidence in the fairness and rationality of the system. Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness ofthe offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadiancriminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense ofthe other. [16]

Section 718.2 outlines additional sentencing principles that a court shall take into consideration when imposing a sentence.Relevant to the instant matter are the following subsections: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to theoffence or the offender, and, without limiting the generality of the foregoing,… (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner,… (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, includingtheir health and financial situation, (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; … (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders,with particular attention to the circumstances of aboriginal offenders. Conditional discharge [17] A discharge may be ordered in circumstances outlined in s. 730 (1) of the Code. Specifically, the offence does not have amandatory minimum sentence and the maximum available sentence must be less that 14 years. Further, a discharge must be in the bestinterests of the accused and not contrary to the public interest. [18] As per R. v.

Fallofield, (BC CA), [1973] 13 C.C.C. (2nd) 450, a discharge is not limited to technical or trivialviolations and the conditions precedent to the imposition of a discharge require that a discharge be in the best interests of the accused andnot be contrary to the public interest.

[ 19 ] Consideration of the best interests of the accused presupposes that the accused is of good character, that a conviction is not necessary to deter or rehabilitate the accused and that a conviction would have significant consequences for the accused: at Fallofield at p. 455. [ 20 ] In terms of the best interests of the public, the public interest in a sentence that deters generally does not preclude the use of the discharge provisions: at page 455. ANALYSIS Sentencing objectives [ 21 ] I conclude that the sentencing objectives of denunciation and deterrence are the primary objectives in the instant matter.

This is because Mr. Feng’s conduct was deliberate and committed with the knowledge that his actions would place Ms. Xu at risk. As such, and through the sentence imposed, this Court must communicate society’s abhorrence for Mr. Feng’s criminal act. The sentence is also intended to send a message to Mr. Feng and others that driving with the intention of causing fear and will result in harsh consequences, particularly when the conduct impacts a passenger who has no mechanism of escape. Seriousness of the offence and Mr. Feng’s responsibility [ 22 ] In considering the seriousness of Mr.

Feng’s conduct, I note the Crown proceeded summarily and in the result, the maximum available penalty is imprisonment for up to two years and a fine of $2,000. I also observe, Mr. Feng’s offence occurred in an area with parking lots on the east and while pedestrians were on the west sidewalk. Additionally, that he was traveling 21 kilometres per hour over the speed limit and that his conduct placed Ms. Xu in obvious and immediate danger. With the above in mind, I conclude Mr Feng’s conduct was very serious. [ 23 ] As for Mr. Feng’s degree of responsibility, his counsel argues Mr.

Feng’s responsibility was reduced because he was exhausted, distracted and driving in an unfamiliar area. I do not accept that Mr. Feng’s culpability was reduced. In this regard, and from the Agreed Statement of Facts, I find Mr. Feng deliberately chose to respond to Ms. Xu’s comments by driving dangerously and aggressively. Further, if Mr. Feng was distracted, then there was opportunity for him to pull over. He did not do this, rather, he chose to keep driving. As for his exhausted state, Mr. Feng chose to drive in this state and his exhaustion was not such that he could not react to Ms. Xu’s comments.

Finally, I accept that Mr. Feng may not have been familiar with the area; however, the roadway where the incident occurred was straight, uncomplicated, and with good sightlines and plainly visible concrete barriers. Aggravating and mitigating factors [ 24 ] It is highly aggravating that Mr. Feng conducted himself in a manner whereby he deliberately and recklessly put Ms. Xu in danger. She was a passenger in his car and he had a duty to drive safely and exercise all caution. Instead, and with Ms. Xu trapped in the moving vehicle, Mr. Feng acted without consideration for her safety and he drove into the river. Mr.

Feng’s conduct directly impacted his intimate partner, Ms. Xu, and he caused her some financial hardship and emotional trauma. [ 25 ] In mitigation, Mr. Feng pled guilty and in the process, he accepted responsibility and displayed remorse. He also saved the time and expense associated with a prosecution and he spared Ms. Xu from having to relive the events. It is also mitigating that Mr. Feng has the support of his father.

Sentencing authorities [ 26 ] I am thankful to counsel for the authorities and they are of some assistance; however, sentencing is an individualized process whereby the offender’s unique circumstances and the unique circumstances of their offence are paramount considerations in determining a sentence that is fit and appropriate in all of the circumstances. [ 27 ] In Poryadin , the Crown’s sentence appeal was dismissed. The offender received a conditional discharge after he pled guilty to dangerous driving.

The circumstances involved the offender “fishtailing” two to three times, making sudden lane changes, tail gating, and driving forty kilometres per hour over the speed limit. When the offender was stopped, it was noted that he had consumed some alcohol. The offender did not have a criminal record, and because of the offence, he lost a job opportunity to relocate.

In dismissing the appeal, the reviewing court concluded that sentence was at the low end but not demonstrably unfit. [ 28 ] In Beittoei , the 19 year old offender pled guilty to dangerous driving after he was arrested for driving 100 to 120 kilometres per hour over a downtown bridge. The offender did not have a criminal record, he was remorseful, he contributed in the community and he had good future prospects. The offender received a 12 month conditional discharge and a 12 month driving prohibition. [ 29 ] In Boyko , the appellant successfully appealed a sentence imposed for dangerous driving.

The appellant’s offence involved a driving altercation whereby another driver approached the appellant’s vehicle and smashed his window. The appellant recklessly drove off striking the other driver. The appellant was 19, he did not have a criminal record, he had the support of his family, and he had a promising future. The sentencing judge rejected a conditional discharge on the basis that it would not be in the public interest because it would not adequately reflect the need for general deterrence and denunciation.

In allowing the appeal, the Court observed that the sentencing judge failed to adequately weigh all of the factors relevant to the best interests of the accused and the public. A conditional discharge was substituted. [ 30 ] As for Angelov, the offender received a conditional discharge for assault with a weapon, a BB gun, and dangerous driving. The case is of no assistance because the offender’s driving behaviour was not described. [ 31 ] In Poitras , the offender received a conditional discharge after pleading guilty to dangerous driving.

The offender side swiped another vehicle, she drove through the city at a high rate of speed and she went through several red lights. The offender was Indigenous, she had a dated driving record, a dated criminal record and her offence was related to her bio-polar disorder.

CONCLUSION [ 32 ] In determining an appropriate sentence, I acknowledge that proportionality is a fundamental principle of sentencing. Additionally, that Mr. Feng’s liberty should not be restricted if less intrusive sanctions may be appropriate. Further, I must consider all available sanctions other than imprisonment.

I also acknowledge that sentencing is an individualized process and I must consider the immigration consequences that will likely occur, however, I am reminded that immigration consequences cannot reduce a sentence to the point where the sentence becomes disproportionate to the gravity of the offence or the offender’s moral blameworthiness: Slater at para. 59. [ 33 ] Based on all of the information, Mr. Feng’s conduct requires a sentence that denounces and deters, his offence was serious and his moral culpability was high.

The range of sentence for dangerous driving is wide and custodial sentences have been imposed in circumstances where the driving is performed with the intent of threatening or causing harm: Draid and Brace. [ 34 ] In considering the appropriateness of a conditional discharge, Mr. Feng does not have a criminal record and acquiring a record would likely impact his ability to travel and future employment options, and impact his immigration status. I, therefore, conclude that a discharge would be in Mr.

Feng’s best interests. [ 35 ] Turning to whether a discharge would be contrary to the public interest, I conclude that a discharge would be contrary to the public interest. This is because a discharge would fail to meet the degree of denunciation and deterrence required in the circumstances. In this regard, Mr. Feng’s conduct was serious and his level of moral blameworthiness was high. Notably, it must not be dismissed that Mr. Feng’s driving was deliberate, calculated and performed with the knowledge that his actions would impact Ms.

Xu. [ 36 ] With the above in mind, and after considering lesser sentencing options, I conclude that the seriousness of Mr. Feng’s conduct and his level of responsibility warrants a short custodial sentence that can be served conditionally in the community. In my view, such a sentence would be proportional and operate to protect the community by denouncing the conduct and deterring others including Mr. Feng. [ 37 ] As for the length of the sentence, I conclude that the six months suggested by the Crown is disproportionate and does not consider the mitigation associated with a guilty plea.

Accordingly, and taking into account the six days that Mr. Feng spent in custody, I impose a two month conditional sentence of imprisonment. [ 38 ] The conditions of Mr.

Feng’s conditional sentence are as follows: • You are to keep the peace and be of good behaviour; • You must appear before the Court when required to do so by the Court; • You must report on or before 4 p.m., Wednesday, April 14, 2021, to a supervisor at 275 East Cordova Street, Vancouver, BC, and thereafter you must report when required by the supervisor and in the manner directed by the supervisor; • You must remain within the jurisdiction of the Court unless written permission to go outside that jurisdiction is obtained from the Court or the supervisor; • You must notify the Court or the supervisor in advance of any change of name or address, and promptly notify the Court or the supervisor of any change of employment or occupation; • You are to have no contact directly or indirectly with Amanda Xu; • You are not to attend at any residence, workplace, place of worship or education institute known to you to be that of Amanda Xu; • For the first 30 days of this order, you must not be outside your place of residence between the hours of 5 p.m. to 9. a.m., daily unless you are travelling directly to and from your employment or immediately engaged in your employment; • You must present yourself at the doorway of your residence to any peace officer, correctional officer or supervisor who attends to ensure your compliance with your curfew condition; and • You are to abstain from the possession and consumption of alcohol.

PROBATION ORDER [ 39 ] I conclude that a probation order is not required. This is because there is no evidence that Mr. Feng requires rehabilitation. As for protective conditions, I note 19 months have passed without Mr. Feng having contacted Ms. Xu and there is no previous history of aggressive behaviour directed at her. DRIVING PROHIBITION [ 40 ] I decline to impose the 12 month driving prohibition sought by the Crown. In my view, the sentence imposed sufficiently denounces and deters without the requirement of a driving prohibition. I also observe that condition 8 of Mr.

Feng’s September 12, 2021 release prohibited him from driving, as such, and pursuant to R. v. Lacasse, 2015 SCC 64 , Mr. Feng has already served any prohibition that would be imposed as part of his sentence. RESTITUTION ORDER [ 41 ] Attached to Ms. Xu’s Victim Impact Statement is a listing of expenses related to the loss of her phone, her computer and an emergency room fee. After considering these amounts and considering the submissions of counsel, I decline to make a restitution order.

My decision in this regard is because the information did not provide any details or receipts for the claimed expenses. VICTIM FINE SURCHARGE [ 42 ] The Victim Fine Surcharge must be paid on or before May 31, 2021. ____________________________ The Honourable Judge R. Harris Provincial Court of British Columbia CORRIGENDUM – Released April 19, 2021 [1] Paragraph 41, last sentence, should read: • My decision in this regard is because the information did not provide any details or receipts for the claimed expenses. ____________________________ The Honourable Judge R.

Harris Provincial Court of British Columbia CORRIGENDUM – Released June 28, 2021 [2] Paragraph 12, citation should read: R. v. Brace 2007 CarswellOnt 3753 ____________________________ The Honourable Judge R. Harris Provincial Court of British Columbia