R. v. Taylor Date:, 2011 BCPC 337

Citation: R. v. Taylor Date: 20111018 2011 BCPC 0337 File Nos: 21111-1; 21441-1-K; 21552-K Registry: Salmon Arm IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CONAN LEE TAYLOR ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. SMITH Counsel for the Crown: W.J. Hilderman Counsel for the Defendant: D.M. Ross Place of Hearing: Salmon Arm , B.C. Date of Hearing: October 18, 2011 Date of Judgment: October 18, 2011 [ 1 ] THE COURT: Before me today for sentencing is, age 29, Conan Taylor.

He has pled guilty to multiple offences on three different informations. [ 2 ] On Information 21111, proceeded by indictment, he has pled guilty to two offences which occurred on the 23rd of October 2009 involving a fatality. On Count 2 he has pled guilty to over .08, resulting in death of his 18-month-old daughter Sophia Taylor, and on Count 5 he has pled guilty to over .08, bodily harm to a Jodi Fontaine, who was no relation to him but was operating a vehicle coming the opposite direction.

I will come back to details on that in a moment. [ 3 ] The second information for which he has entered a guilty plea is 21441-K-1, an assault of A.M., his common-law. She is present here in court today. [ 4 ] The third information for which he has entered guilty pleas is 21552, where, on the 2nd of June 2011, he failed to stop his vehicle when pursued by police, contrary to s. 249.1(1) of the Criminal Code , and he has also pled guilty to breaching his undertaking by having contact with A.M. [ 5 ] I am not sure I mentioned the offence date on the assault.

It was between the 1st of December 2010 and the 3rd of February 2011.

[ 6 ] Before giving more details on the circumstances surrounding the offences, I would like to start with a bit more of the background. [ 7 ] The accused does have a criminal record, referred to in the pre-sentencing report. Most notably, the 17th of April 2007, here in Salmon Arm, an over .08 conviction dealt with by way of a fine and a one year driving prohibition.

Also related on the other information is a conviction on the 17th of March 2009 for assault, dealt with by way of a suspended sentence, and also related to his guilty plea on the breach of undertaking is the fact that he has a conviction on the 26th of June 2009 in Salmon Arm for a breach of probation, for which he received one day jail. [ 8 ] He also has a driving record in this province.

I will not make reference to those entries of 24 hour driving prohibition, because I think that would be in error to do that, but putting those aside: October of 2001, speeding; October of 2001, failing to wear seat belt; October of 2002, driving without due care; October of 2004, driving without insurance, driving an improperly equipped vehicle, failing to wear seat belt and driving without insurance. All of those were sentences on the 30th of October 2004. On the 17th of November 2004, yet again failing to wear seat belt.

Then, of course, the Motor Vehicle Act record also makes reference to the criminal conviction of the over .08 conviction registered in April of 2007. [ 9 ] With that background in mind, the accused, on the 23rd of October 2009, some two years ago, was out partying in circumstances where he had been drinking red wine and had been smoking marijuana. Something that I am told he has a habit of doing then is the smoking of marijuana.

He has his 18-month-old daughter along with him while he is intoxicated and driving, and she is in a car seat in the back seat, but it is not tethered in. [ 10 ] Subsequent blood sample analysis indicates that the extrapolated reading for the accused at the time of the motor vehicle collision would have been around 199 to 213 milligrams percent, so about two and a half times the legal limit.

Subsequent testing also did show that he had a THC content consistent with someone who is a frequent user of marijuana. [ 11 ] In those circumstances, sometime before seven in the morning, he is in this intoxicated condition driving himself and his daughter home. It is a raining night. For reasons better known to him than others, he crossed over the centreline and impacts the vehicle coming the opposite direction being driving by Ms. Fontaine. The accused says that the reason is that he was distracted by trying to give the baby a bottle. [ 12 ] The consequences were tragic.

The infant was killed with a broken neck. The accused, I did not hear details of it, but was also sufficiently hurt that he ended up in the hospital; and the driver of the other vehicle also ended up in the hospital, not with broken bones, but with serious muscle damage such that for several months thereafter she was getting physiotherapy twice a week and chiropractic treatment for twice a week as well, and also massage therapy. Her husband took time off his work to look after her. [ 13 ] In her victim impact statement she has lots to say, including how a lot of these ailments continue to trouble her.

That is, the physical ailments as well as the mental elements of always wondering whether the driver coming in the opposite direction is going to cross over the centreline into her vehicle. [ 14 ] The accused, to his credit, has pled guilty to those two offences of the over .08, resulting in death of the daughter, and the over .08 resulting in bodily harm to Jodi Fontaine. [ 15 ] While that matter has been awaiting disposition since October of 2009 offence date, the second information arose involving his assaulting A.M. between the 1st of December 2010 and the 3rd of February 2011.

Initially he gave instructions to his lawyer that he had not done any such assault, but he wanted to get the matter over with by way of a guilty plea. I told him today that of course the courts do not operate that way and a guilty plea could only be accepted if he was acknowledging guilt in the matter. He then confirmed acknowledgement of having squeezed, dragged, and shaken A.M. on more than one occasion between that window of time, the 1st of December 2010 and the 3rd of February 2011. [ 16 ] That came to the police’s attention on the 3rd of February, 2011, when Ms.

M. went to the authorities and gave a statement regarding the assaults and said that at times, when the accused would be yelling, he would have a raised fist threatening to hit and threatening to kill her if she ever left him. She is here in court today and obviously at least somewhat supportive of him, as one will discover here in a minute when I talk about the third information. [ 17 ] While both of those two matters are outstanding, then, on the 2nd of June 2011, a police officer is following a red sports car with an expired plate. This is at 1:02 in the morning, so yet again late at night.

The police check discovers that not only is the insurance expired with regard to that plate number, the plate is on the wrong vehicle, so the strobe and grill and wig-wag lights eventually get activated. The officer, before doing all that, had occasion to actually see who the driver was and could identify the driver as being the accused. I was not clear with what I heard there, but I got the overall impression that perhaps his common-law Ms. M. was also in the vehicle with him then. [ 18 ] MR. HILDERMAN: No. He was apparently going to pick her up first. [ 19 ] THE COURT: No? Not.

It was her vehicle, but he was going to get her or coming from getting her, or something you were saying. [ 20 ] MR. HILDERMAN: That is my understanding. Right. [ 21 ] THE COURT: Yes, okay, but she was not physically in the vehicle then. [ 22 ] MR. HILDERMAN: Not that I know of, no. [ 23 ] THE COURT: That is why I was a little bit unclear on that one point.

[ 24 ] MR. HILDERMAN: Right. [ 25 ] THE COURT: At any rate, it was pretty clear that he was having some type of contact again with Ms. M., contrary to his undertaking to have no contact with her. [ 26 ] There, he became involved in a high speed police chase.

The officer was going 160 kilometres an hour and the accused pulled away in an effort to evade the police officer. [ 27 ] On that high speed chase the police officer then backed off so as not to create a worse unsafe situation in circumstances where he knew who the driver was, and then five days later, on the 7th of June when the accused attended court on one of his earlier charges, he was then arrested on this third information, and he has now pled guilty to failing to stop his motor vehicle when pursued by a police officer contrary to s. 249.1(1) of the Criminal Code , and he has also pled guilty to breaching his undertaking by having contact with A.M., and he has now been in custody since then.

Not the offence date of the 2nd of June, but since the date that he came to court five days later on the 7th of June. He has been in custody since then. [ 28 ] Both Crown and defence have quite ably referred me to a lot of the leading cases in our province for this type of matter, and at the end of making all of those submissions the Crown submits that a proper sentencing range is three to five years jail.

Defence submits that a proper range is 18 months to two years jail. [ 29 ] Some of the cases that the Crown referred to included the Bertrand decision of Justice MacKenzie, of our British Columbia Supreme Court, back on the 12th of August 2008, involving criminal negligence causing death and a high speed chase where someone was driving without headlights and drove right into some residence and killed two people, in circumstances where the person was highly intoxicated, and received a five year jail sentence. [ 30 ] Crown referred to the Scott decision from our Court of Appeal on the 14th of July 2008, a dangerous driving causing death and causing bodily harm case where the accused received 42 months jail.

He had been drinking and driving, driving without a licence, driving without a licence plate, or at least a valid plate. In addition to the 42 months jail, he received 15 years of a driving prohibition, which, on appeal, was reduced to 10 years. He did have a related record of three prior over .08 convictions. [ 31 ] Crown referred to the Evers decision of our Provincial Court, Judge Wingham, in Surrey on the 4th of April 2006, involving a 28-year-old who had no record and had a good employment history and was involved with an impaired driving causing death and an impaired driving causing bodily harm.

He received two and a half years jail on the impaired driving causing death. [ 32 ] Crown referred to the Lardner decision of Madam Justice Beames of the Okanagan, and a Supreme Court justice, dated the 11th of February 2008. In that case, involving criminal negligence causing death, there was also a fatality. The accused was driving a motor - - well, actually it was a motorcycle that he was driving. He was intoxicated, got more intoxicated at the local pub, met a lady at the pub. She made the unwise choice of getting on that bike with an impaired driver.

He fairly quickly ran into a median and she died from the accident. His extrapolated reading was close to but a little bit lower than the case at bar. The extrapolated reading in Lardner was 177 to 201 milligrams percent. That accused had a prior in 1997, so an 11-year-old prior conviction for impaired driving causing bodily harm.

Justice Beames imposed four and a half years jail on the criminal negligence causing death and three and a half years jail on the impaired driving related charge. [ 33 ] Lastly, the Crown referred to the Woloshyn decision of our Court of Appeal, rendered the 4th of May 2006, involving someone who was, in effect, driving on the wrong side of the road, resulting in a death. The person was extremely intoxicated, had a related record for impaired driving and dangerous driving.

The initial sentencing judge had imposed two years jail, but on appeal that was increased to four years jail. [ 34 ] Defence counsel referred me to four cases. [ 35 ] The Woodley decision, of our Court of Appeal, rendered the 8th of April 1993, criminal negligence causing death where a 26- year-old, with no record, received two years jail plus two years probation. [ 36 ] I was then referred to the Reed decision of our Court of Appeal, rendered the 27th of March 1998, involving dangerous driving causing death. I think there might have been three counts of that.

It was a sentence appeal where the accused initially was sentenced to 18 months jail, to be carried out by way of a conditional sentence. The Crown appealed and on appeal the original trial judge’s 18 month conditional sentence order was upheld. It involved lower readings. The extrapolated reading was between 50 and 120, as opposed to the 200 that we are dealing with in the case at bar.

It had involved a trial where there had initially been an acquittal and an appeal, an age 24 accused who was married to a school teacher, and it was thought that there were sufficient exceptional circumstances that the conditional sentence ought to be imposed. [ 37 ] I was next referred to the Moore decision of our Supreme Court in Chilliwack. Justice Willcock, who dealt with dangerous driving causing death, dangerous driving causing bodily harm and two possession of stolen property counts, and had globally imposed a two year jail sentence, coupled with 12 months probation.

The accused was age 31, had stolen a truck and trailer in Alberta and then had driven it to our province, in the process having a motor vehicle accident in B.C. He had 49 prior adult convictions and 16 prior youth convictions. [ 38 ] Last, I was referred to the Matheson decision of Justice McEwan in Nelson on the 4th of February 2011, involving dangerous driving causing death, causing bodily harm, over .08. It had, in other words, multiple counts. The tragedy in that case was that Ms. Matheson had killed her own father.

Her extrapolated reading at time of driving was 130 to 165 and she had no prior record, and she received a two year concurrent jail sentence, keeping it just in the provincial range. [ 39 ] I am to impose a sentence that is consistent with all of the sentencing principles set out in the Criminal Code . I was just turning to review my copy of that, and I do not have it particularly in front of me, but having been a judge for 15 years I know it off pretty well by heart. I do have the Criminal Code there. My point is that of course I am to apply all of those principles. There is the principle of

denunciation and deterrence, but also there is a principle of not losing sight of rehabilitation, and a judge is to make the least onerous of those that is possible. [ 40 ] Here, what do I have by way of mitigating factors? I have a guilty plea. I have someone who has done four and a half months of dead time. This business of saying that it is a mitigating thing that he is remorseful, I do not quite buy that. No doubt he is remorseful that his drinking and driving resulted in the killing of his own daughter.

No doubt there is remorse in that regard, but the way that one would show true remorse is to then stop driving when one is ordered to stop driving, not to get in yet another high speed police chase. That is not how one shows remorse, so I find it only lip service to say that he is remorseful. I accept, though, that it is an element of remorse to simply be pleading guilty and to not have to put the witnesses to testify. So I do acknowledge remorsefulness as a factor to that degree. [ 41 ] What are the aggravating factors?

One, that he has got a related drinking and driving conviction in 2007; (2) on the other matter, on the assault matter, he has got a prior assault; and on the breach matter, he has got a prior breach that way. So on all of these counts he has got some related track record from a prior conviction, so that is aggravating, the related record. [ 42 ] He was driving without insurance. That is aggravating. He was driving without a driver's licence. That is aggravating, but somewhat related.

It seems that the issue is also probably substance involved, both the marijuana and the alcohol, but when one looks at the reading it is an aggravating factor that, taking it at the very possible lowest, it is a 199 reading where 80 is the legal limit, so nearly two and a half times the legal limit. [ 43 ] It is aggravating that even outside of the criminal record he has got this Motor Vehicle Act record where he continued to act as if the rules did not apply to him.

Multiple times driving without a seat belt, in circumstances where now he did not have his daughter’s seat belt properly tether-belted in, and that did not help the scenario. [ 44 ] A conditional sentence ought to be considered, but of course is only available if it is in the provincial range of sentence. I find that this particular offence is outside that range. I think that, normally speaking, a proper sentence would be four years, but I then look at the dead time and the other mitigating factors I set out.

He is but 29 years of age and has pled guilty, and in the end I impose a jail sentence of three years six months. That will apply on Information 21111, Count 2.

On Count 5, one year concurrent. [ 45 ] Under s. 259 of the Criminal Code , I prohibit you from operating any motor vehicle on any street, road, highway, or other public place throughout all of Canada, not just B.C., throughout all of Canada for a period of 10 years commencing today, and that is in relation to both of those counts. [ 46 ] I waive any victim fine surcharge. [ 47 ] I order, on that matter, that a sample of your DNA be made available for analysis, that that be done forthwith. [ 48 ] MR.

HILDERMAN: I think it could be. [ 49 ] THE COURT: Well, in custody forthwith means as soon as they can arrange it, but I make that order, the DNA order. [ 50 ] I think that concludes everything on that one information. Is there anything else before I move on to the next information? [ 51 ] MR. HILDERMAN: I don’t think so, Your Honour. [ 52 ] THE COURT: Thank you. I should say one of the sentencing principles I am to consider is collectively whether or not the sentence is within a proper range when one looks at multiple informations like this, and I definitely took that into consideration here.

It is a situation where there could have quite easily been consecutive jail time on the other two informations, but I am choosing to simply deal with everything concurrently because I am trying to look globally at a proper disposition, but I think quite properly I could have done something consecutive with those other two informations, but the sentence I do impose is concurrent on everything. [ 53 ] On Information 21441-K-1, assaulting A.M., I impose 30 days jail concurrent and I waive the victim fine surcharge. [ 54 ] On Information 21552, failing stop for the police officer, that was a bad piece of work when one has this kind of serious matter outstanding.

I impose six months jail on that Count 1 concurrent; and on the Count 3, breach of undertaking, it seems that Ms. M. has been practically condoning the contact, I impose a nominal one day jail sentence on Count 3. [ 55 ] Because I have made a sentence that is longer than two years, of course there will be no probation order to follow. (REASONS CONCLUDED)